[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Rules and Regulations]
[Pages 8786-8817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03179]
[[Page 8785]]
Vol. 79
Thursday,
No. 30
February 13, 2014
Part II
Department of Commerce
-----------------------------------------------------------------------
National Oceanic and Atmospheric Administration
-----------------------------------------------------------------------
50 CFR Part 648
Fisheries of the Northeastern United States; Atlantic Herring Fishery;
Amendment 5; Final Rule
Federal Register / Vol. 79 , No. 30 / Thursday, February 13, 2014 /
Rules and Regulations
[[Page 8786]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket 100203070-4003-02]
RIN 0648-AY47
Fisheries of the Northeastern United States; Atlantic Herring
Fishery; Amendment 5
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements approved measures in Amendment 5 to the
Atlantic Herring Fishery Management Plan (FMP). Amendment 5 was
developed by the New England Fishery Management Council (Council) to:
Improve the collection of real-time, accurate catch information;
enhance the monitoring and sampling of catch at-sea; and address
bycatch issues through responsible management. The approved measures
include: Revising fishery management program provisions (permitting
provisions, vessel notification requirements, measures to address
herring carrier vessels, regulatory definitions, and requirements for
vessel monitoring systems); expanding vessel requirements to maximize
observers' ability to sample catch at-sea; minimizing the discarding of
unsampled catch (commonly known as slippage); addressing the incidental
catch and bycatch of river herring; and revising the criteria for
midwater trawl vessels' access to Northeast multispecies (groundfish)
closed areas. NMFS disapproved three measures in Amendment 5. These
measures included: A dealer reporting requirement; a cap that, if
achieved, would require vessels discarding catch before it had been
sampled by observers (known as slippage) to return to port; and a
requirement for 100-percent observer coverage on Category A and B
vessels, coupled with an industry contribution of $325 per day toward
observer costs. NMFS disapproved these three measures because it
believes they are inconsistent with the Magnuson-Stevens Fishery
Conservation and Management Act (MSA) and other applicable law.
Therefore, these three measures are not implemented in this action.
DATES: Effective March 17, 2014.
ADDRESSES: Copies of supporting documents used by the Council,
including the Final Environmental Impact Statement (FEIS) and
Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis
(IRFA), are available from: Thomas A. Nies, Executive Director, New
England Fishery Management Council, 50 Water Street, Newburyport, MA
01950. The FEIS/RIR/IRFA is also accessible via the internet at http://www.nero.nmfs.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS, Northeast Regional Office and by
email to [email protected], or fax to 202-395-7285.
Information on the Federal Vessel Monitoring System (VMS)
reimbursement program is available from the Pacific States Marine
Fisheries Commission, 205 SE. Spokane Street, Suite 100, Portland, OR
97202 (Web site: http://www.psmfc.org/, telephone number: 503-595-3100,
fax number: 503-595- 3232).
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, phone 978- 281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
On May 8, 2008 (73 FR 26082), the Council published a notice of
intent (NOI) to prepare an EIS for Amendment 4 to the Atlantic Herring
FMP to consider measures to: Improve long-term monitoring of catch
(landings and bycatch) in the herring fishery, implement annual catch
limits (ACLs) and accountability measures (AMs) consistent with the
MSA, and develop a sector allocation process or other limited access
privilege program for the herring fishery. The Council subsequently
conducted scoping meetings during May and June of 2008 to discuss and
take comments on alternatives to these measures. After considering the
complexity of the issues under consideration in Amendment 4, the
Council voted on June 23, 2009, to split the action into two amendments
to ensure the MSA requirements for complying with provisions for ACLs
and AMs would be met by 2011. The ACL and AM components moved forward
in Amendment 4, all other measures formerly considered in Amendment 4
were to be considered in Amendment 5. A supplementary NOI was published
on December 28, 2009, (74 FR 68577) announcing the split between the
amendments, and that impacts associated with alternatives considered in
Amendment 5 would be analyzed in an EIS. At that time, measures
considered under Amendment 5 included: A catch-monitoring program;
measures to address river herring bycatch; midwater trawl access to
groundfish closed areas; and measures to address interactions with the
Atlantic mackerel (mackerel) fishery.
Following further development of Amendment 5, the Council conducted
MSA public hearings in March 2012, National Environmental Policy Act
(NEPA) public hearings at the beginning of June 2012, and, following
the public comment period on the draft EIS (DEIS) that ended on June 4,
2012, the Council adopted Amendment 5 on June 20, 2012. The Council
submitted Amendment 5 to NMFS for review on September 10, 2012.
Following a series of revisions, the Council submitted a revised
version of Amendment 5 to NMFS on March 25, 2013. A Notice of
Availability (NOA) for Amendment 5, as submitted by the Council for
review by the Secretary of Commerce (Secretary), was published on April
22, 2013 (78 FR 23733), with a comment period ending June 21, 2013. A
proposed rule for Amendment 5 was published on June 3, 2013 (78 FR
33020), with a comment period ending July 18, 2013. On July 18, 2013,
NMFS partially approved Amendment 5 on behalf of the Secretary. NMFS
sent a letter to the Council on July 19, 2013, informing it of the
partial approval of Amendment 5.
The Council has spent several years developing this amendment, and
it contains many measures that would improve herring management and
that can be administered by NMFS. NMFS supports improvements to fishery
dependent data collections, either through increasing reporting
requirements or expanding the at-sea monitoring of the herring fishery.
NMFS also shares the Council's concern for reducing bycatch and
unnecessary discarding. However, three measures in Amendment 5 lacked
adequate rationale or development by the Council, and NMFS had utility
and legal concerns with the implementation of these measures. These
measures include: A dealer reporting requirement; a cap that, if
achieved, would require vessels discarding catch before it had been
sampled by observers (known as slippage) to return to port; and a
requirement for 100-percent observer coverage on Category A (All Areas
Limited Access Herring Permit) and B (Areas 2/3 Limited Access Herring
Permit) vessels, coupled with an industry contribution of a target
maximum of $325 per day toward observer costs. NMFS expressed
[[Page 8787]]
potential concerns with these measures throughout the development of
this amendment, but these measures have strong support from some
stakeholders. The proposed rule for Amendment 5 described potential
concerns about these measures' consistency with the MSA and other
applicable law. After review of public comment, NMFS determined these
three measures must be disapproved because they were inconsistent with
the MSA and other applicable law. On September 20, 2013, NMFS sent a
letter to the Council with recommendations on how these measures could
be revised to address NMFS's concerns. If the Council chooses to revise
these measures, NMFS will work with the Council to design effective
measures to help improve management of the herring fishery. Revised
measures could be addressed in upcoming Council actions. Whether that
action would be an amendment or framework would depend on the scope of
the revised measure.
Approved Measures
This final rule implements approved management measures that:
Modify the herring transfer at-sea and offload definitions
to better document the transfer of fish;
Expand possession limit restrictions to all vessels
working cooperatively, consistent with pair trawl requirements;
Eliminate the vessel monitoring system (VMS) power-down
provision for limited access herring vessels, consistent with VMS
provisions for other fisheries;
Establish an ``At-Sea Herring Dealer'' permit to better
document the at-sea transfer and sale of herring;
Establish an ``Areas 2/3 Open Access Permit'' to reduce
the potential for the regulatory discarding of herring in the mackerel
fishery;
Allow vessels to enroll as herring carriers with either a
VMS declaration or letter of authorization to increase operational
flexibility;
Expand pre-trip and pre-landing notification requirements,
as well as adding a VMS gear declaration, to all limited access herring
vessels and vessels issued an Areas 2/3 Open Access Permit to help
facilitate monitoring;
Establish an advance notice requirement for the observer
pre-trip notification at 48 hr;
Expand vessel requirements related to at-sea observer
sampling to help ensure safe sampling and improve data quality;
Establish measures to minimize the discarding of catch
before it has been made available to observers for sampling (known as
slippage);
Establish a framework provision for a river herring catch
cap, such that a river herring catch cap may be implemented in a future
framework;
Allow the existing river herring bycatch avoidance program
to investigate providing real-time, cost-effective information on river
herring distribution and fishery encounters in River Herring
Monitoring/Avoidance Areas; and
Expand at-sea sampling of midwater trawl vessels fishing
in groundfish closed areas.
1. Adjustments to the Fishery Management Program
Amendment 5 revises several existing fishery management provisions,
such as regulatory definitions, reporting requirements, and VMS
requirements, and establishes new provisions, such as additional
herring permits and increased operational flexibility for herring
carriers, to better administer the herring fishery.
Definitions
Amendment 5 revises the regulatory definitions of transfer at-sea
and offload to clarify these activities for the herring fishery. This
action defines a herring transfer at-sea as a transfer of fish from one
herring vessel (including fish from the hold, deck, codend, or purse
seine) to another vessel, with the exception of fish moved between
vessels engaged in pair trawling. This action also defines a herring
offload as removing fish from a herring vessel to be sold to a dealer.
Both transfers at-sea and offloading are frequent activities in the
herring fishery, and the differences between these activities are not
always well understood. These definition revisions attempt to more
clearly differentiate between activities that trigger reporting
requirements. By clarifying these activities for the herring fishery,
fishery participants are more likely to report these activities
consistently, thereby improving reporting compliance, helping ensure
data accuracy and completeness, and lessening the likelihood of double
counting herring catch.
Herring Carriers
Amendment 5 revises operating provisions for herring carrier
vessels by establishing an At-Sea Herring Dealer permit for herring
carriers that sell fish, allowing vessels to declare herring carrier
trips via VMS, and exempting herring carriers from vessel trip report
(VTR) requirements. Currently, herring carriers may receive and
transport herring caught by another fishing vessel, provided the
herring carrier has been issued a herring permit, does not have any
gear on board capable of catching or processing herring, and has been
issued a letter of authorization (LOA) from the NMFS Regional
Administrator (RA). The herring carrier LOA exempts the herring carrier
from possession limits and catch reporting requirements associated with
the vessel's herring permit. To allow time for the processing,
issuance, and, if necessary, cancellation of the LOAs, the herring
carrier LOAs have a minimum 7-day enrollment period. During the LOA
enrollment period, vessels may only act as herring carriers and they
may not fish for any species, or transport species other than herring
and certain groundfish species, including haddock and up to 100 lb (45
kg) of other regulated groundfish species (as specified at Sec.
648.86(a)(3) and (k)).
This action allows vessels to choose between enrolling as a herring
carrier with an LOA or declaring a herring carrier trip via VMS. If a
vessel chooses to declare a herring carrier trip via VMS, it would be
allowed to receive and transport herring caught by another fishing
vessel provided the herring carrier has been issued a herring permit,
does not have any gear on board capable of catching or processing fish,
and only transports herring or groundfish, including haddock and up to
100 lb (45 kg) of other regulated groundfish species (as specified at
Sec. 648.86(a)(3) and (k)). Consistent with other Northeast Region VMS
requirements, once a vessel declares a herring carrier trip via VMS, it
is bound to the VMS operating requirements, specified at Sec. 648.10,
for the remainder of the fishing year. By declaring a herring carrier
trip via VMS, a vessel would not be bound by the 7-day enrollment
period of the LOA. A vessel declaring a herring carrier trip via VMS
may only act as a herring carrier and may not fish for any species or
transport species other than herring or groundfish. This measure would
increase operational flexibility by allowing vessels to schedule
herring carrier trips on a trip-by-trip basis. Vessels that do not
possess a VMS or choose not to declare a herring trip via VMS may still
act as carriers by obtaining a herring carrier LOA from the NMFS RA and
operating in accordance with the LOA requirements.
Herring carriers typically receive herring from harvesting vessels
and transport those herring to Federal dealers. The harvesting vessel
reports those herring as catch, and dealers report those herring as a
purchase. NMFS verifies the amount of herring
[[Page 8788]]
caught by comparing the amount reported by the harvesting vessel
against the amount reported by the dealer. If the herring transported
by a herring carrier is not purchased by a Federal dealer, then NMFS
does not have any dealer reports to compare to the vessel reports. This
action establishes an At-Sea Atlantic Herring Dealer Permit that would
be required for herring carriers that sell herring, rather than deliver
those fish on behalf of a harvesting vessel to a dealer for purchase.
This permit requires compliance with Federal dealer reporting
requirements. Vessels that have been issued both an At-Sea Atlantic
Herring Dealer Permit and a Federal fishing permit would be required to
fulfill the reporting requirements of both permits, as appropriate.
NMFS expects the reporting requirements for the At-Sea Atlantic Herring
Dealer Permit to minimize instances where catch is reported by
harvesting vessels but which NMFS cannot match to dealer reports;
thereby improving catch monitoring in the herring fishery.
Amendment 5 exempts herring carriers from the VTR requirements
associated with their vessel permits while the vessel is operating in
accordance with the herring carrier permit requirements. NMFS requires
vessels issued herring permits to submit weekly VTRs to NMFS. However,
dealers have incorrectly attributed catch to herring carrier vessels,
rather than correctly attributing catch to the appropriate harvesting
vessel, by reporting the herring carrier's VTR serial number rather
than the VTR serial number of the harvesting vessel. To help prevent
catch being attributed to the wrong vessel and to minimize data
mismatches between vessel and dealer reports, this action exempts
herring carriers from the VTR requirement associated with their herring
permit when they are enrolled as a herring carrier with an LOA or by
declaring a herring carrier trip via VMS. Dealers would still be
responsible for correctly reporting the VTR serial number of the vessel
that harvested the herring.
Open Access Herring Permits
Amendment 5 establishes a new open access herring permit for
vessels engaged in the mackerel fishery and re-names the current open
access herring permit. The permit formerly known as the Open Access
Herring Permit (Category D) allows a vessel to possess up to 6,600 lb
(3 mt) of herring per trip, limited to one landing per calendar day, in
or from any of the herring management areas. All the provisions and
requirements of this open access herring permit remain the same, but
this action renames this permit as the All Areas Open Access Herring
Permit (Category D), and creates a new open access permit for mackerel
fishery participants fishing in herring management Areas 2 and 3 called
the Areas 2/3 Open Access Permit (Category E).
The new Areas 2/3 Open Access Herring Permit (Category E) allows
vessels to possess up to 20,000 lb (9 mt) of herring per trip, limited
to one landing per calendar day, in or from herring management Areas 2
and 3. Vessels that have not been issued a limited access herring
permit, but that have been issued a limited access mackerel permit, are
eligible for the Areas 2/3 Open Access Herring Permit. Vessels may hold
both open access herring permits at the same time.
In its letter to NMFS deeming the proposed regulations for
Amendment 5, the Council requested that NMFS clarify the reporting and
monitoring requirements associated with the new Category E permit.
Amendment 5 states that Category E permits would be subject to the same
notification and reporting requirements as Category C (Incidental Catch
Limited Access Herring Permit) vessels. Therefore, this action
establishes notification and reporting requirements for the Category E
permit that are consistent with the requirements for Category C
vessels, including the requirement to possess and maintain a VMS, VMS
activity declaration and pre-landing requirements, and catch reporting
requirements (i.e., submission of daily VMS catch reports and weekly
VTRs). Reimbursement for VMS units is available on a first come, first
serve, basis until the funds are depleted. More information on the VMS
reimbursement program is available from the Pacific States Marine
Fisheries Commission (see ADDRESSES) and from the NMFS VMS Support
Center, which can be reached at 888-219-9228.
Amendment 5 does not state that Category E permits would be subject
to the same catch monitoring requirements as Category C vessels,
including the proposed vessel requirements to help improve at-sea
sampling and measures to minimize the discarding of catch before it has
been made available to observers for sampling. When describing or
analyzing catch monitoring requirements, Amendment 5 does not describe
extending catch monitoring requirements for Category C vessels to
Category E vessels, nor does it analyze the impacts of catch monitoring
requirements on Category E vessels. Because the Category C catch
monitoring requirements were not discussed or analyzed in relation to
Category E vessels, this action did not propose, and thus does not
extend, those catch monitoring requirements to Category E vessels.
There is significant overlap between the mackerel and herring
fisheries. Mackerel and herring co-occur, particularly during January
through April, which is a time that vessels often participate in both
fisheries. Not all vessels participating in the mackerel fishery
qualify for a limited access herring permit because they either did not
have adequate herring landings or they are new participants in the
mackerel fishery. Currently, vessels issued an open access herring
permit and participating in the mackerel fishery are required to
discard any herring in excess of the open access permit's 6,600-lb (3-
mt) possession limit. The creation of the new Areas 2/3 Open Access
Herring Permit is intended to minimize the potential for regulatory
discarding of herring by limited access mackerel vessels that did not
qualify for a limited access herring permit, consistent with MSA
National Standard 9's requirement to minimize bycatch to the extent
practicable.
Trip Notification and VMS Requirements
Amendment 5 expands and modifies trip notification and VMS
requirements for vessels with herring permits to assist with observer
deployment and provide enforcement with advance notice of trip
information to facilitate enforcement monitoring of landings.
Currently, vessels with Category A or B permits, as well as any vessels
fishing with midwater trawl gear in Areas 1A, 1B, and/or 3, are
required to contact NMFS at least 72 hr in advance of a fishing trip to
request an observer. This action expands this pre-trip observer
notification requirement such that vessels with limited access herring
permits; vessels with open access Category D permits fishing with
midwater trawl gear in Areas 1A, 1B, and/or 3; vessels with open access
Category E permits; and herring carrier vessels are required to contact
NMFS at least 48 hr in advance of a fishing trip to request an
observer. This measure would assist NMFS's scheduling and deployment of
observers across the herring fleet, with minimal additional burden on
the industry, helping ensure that observer coverage targets for the
herring fishery are met. NMFS intends for the change from a 72-hr
notification requirement to a 48-hr notification requirement to allow
vessels more flexibility in their trip planning and
[[Page 8789]]
scheduling. The list of information that must be provided to NMFS as
part of this pre-trip observer notification remains the same as before
this change and is described in the regulations. Vessels with herring
permits currently contact NMFS via phone; the phone number to contact
NMFS will be provided in the small entity compliance guide. If a vessel
is required to notify NMFS to request an observer before its fishing
trip, but it does not notify NMFS before beginning the fishing trip,
that vessel is prohibited from possessing, harvesting, or landing
herring on that trip. If a fishing trip is cancelled, a vessel
representative must notify NMFS of the cancelled trip, even if the
vessel is not selected to carry an observer. All waivers or selection
notices for observer coverage will be issued by NMFS to the vessel via
VMS so the vessels have an on-board verification of either the observer
selection or waiver. However, a vessel issued a Category A or B permit
on a declared herring trip; or a vessel issued any herring permit
fishing with midwater trawl gear in Herring Management Areas 1A, 1B,
and/or 3; is still subject to the more restrictive 72-hr notification
associated with the groundfish midwater trawl or purse seine gear
exempted fisheries specified at Sec. 648.80(d)-(e).
Vessels with limited access herring permits are currently subject
to a VMS activity declaration. Amendment 5 expands that VMS activity
declaration requirement and adds a gear code declaration. Therefore,
under Amendment 5, vessels with limited access herring permits,
Category E permits, and vessels declaring herring carrier trips via VMS
must notify NMFS via VMS of their intent to participate in the herring
fishery prior to leaving port on each trip by entering the appropriate
activity and gear codes in order to harvest, possess, or land herring
on that trip.
Currently, vessels with Category A or B permits; and vessels with
Category C permits fishing with midwater trawl gear in Areas 1A, 1B,
and/or 3; are subject to a pre-landing VMS notification requirement.
This action expands this pre-landing VMS notification requirement so
that vessels with limited access herring permits, Category E permits,
and vessels declaring herring carrier trips via VMS must notify NMFS
Office of Law Enforcement via VMS of the time and place of offloading
at least 6 hr prior to landing or, if fishing ends less than 6 hr
before landing, as soon as the vessel stops catching fish.
Limited access herring vessels are currently able to turn off
(i.e., power down) their VMS when in port, if they do not hold other
permits requiring continuous VMS reporting. Vessels authorized to power
down their VMS in port must submit a VMS activity declaration prior to
leaving port. This action prohibits vessels with herring permits from
powering down their VMS when in port, unless specifically authorized by
NMFS. If a vessel will be out of the water for more than 72 hr, a
vessel owner must request a letter of exemption (LOE) from NMFS to
power down its VMS. The application for a ``VMS Power Down Exemption
Request'' is available on the NMFS Northeast Regional Office Web site
(see ADDRESSES). Herring vessels are prohibited from powering down
their VMS until they have received an LOE from NMFS. Additionally, a
vessel owner can sign a herring vessel out of the VMS program for a
minimum of 30 days by requesting and obtaining an LOE from NMFS. When a
VMS unit is powered down, consistent with an LOE, that vessel is
prohibited from leaving the dock until the VMS unit is powered back up
and a VMS activity declaration is sent. This action prohibits herring
vessels from powering down VMS units in port to improve the enforcement
of herring regulations and help make herring VMS regulations consistent
with VMS regulations in other Northeast fisheries.
Possession Limits
All herring vessels engaged in pair trawling must be issued herring
permits, and their harvest is limited by the most restrictive
possession limit associated with those permits. Amendment 5 expands
this restriction by requiring that each vessel working cooperatively in
the herring fishery; including vessels pair trawling, purse seining,
and transferring herring at-sea; must be issued a herring permit and is
subject to the most restrictive possession limit associated with the
permits issued to those vessels working cooperatively. This measure
establishes consistent requirements for vessels working cooperatively
in the herring fishery and is intended to improve enforcement of
herring possession limits for multi-vessel operations.
2. Adjustments to At-Sea Catch Monitoring
Two of the primary goals of Amendment 5 are to improve catch
monitoring in the herring fishery and minimize bycatch and bycatch
mortality to the extent practicable. Amendment 5 revises vessel
requirements to assist observers sampling at-sea and establishes new
measures to minimize the discarding of catch before it has been sampled
by an observer.
Northeast fishery regulations specify requirements for vessels
carrying NMFS-approved observers, such as providing observers with food
and accommodations equivalent to those made available to the crew;
allowing observers to access the vessel's bridge, decks, and spaces
used to process fish; and allowing observers access to vessel
communication and navigations systems. This action expands these
requirements, such that vessels issued limited access permits and
carrying NMFS-approved observers must provide observers with the
following: (1) A safe sampling station adjacent to the fish deck, and a
safe method to obtain and store samples; (2) reasonable assistance to
allow observers to complete their duties; (3) advance notice when
pumping will start and end and when sampling of the catch may begin;
and (4) visual access to net/codend or purse seine and any of its
contents after pumping has ended, including bringing the codend and its
contents aboard if possible. Additionally, this action requires vessels
issued limited access permits working cooperatively in the herring
fishery to provide NMFS-approved observers with the estimated weight of
each species brought on board or released on each tow. NMFS expects
these measures to help improve at-sea catch monitoring in the herring
fishery by enhancing the observer's ability to collect quality data in
a safe and efficient manner.
This action, with limited exceptions, requires limited access
vessels to bring all catch aboard the vessel and make it available for
sampling by an observer. The Council recommended this measure to
improve the quality of at-sea monitoring data by reducing the
discarding of unsampled catch. If catch is discarded before it has been
made available to the observer, that catch is defined as slippage. Fish
that cannot be pumped and remain in the net at the end of pumping
operations are considered operational discards and not slippage.
Discards that occur after catch has been brought on board and sorted
are also not considered slippage. Vessels may make test tows without
pumping catch on board, provided that all catch from test tows is
available to the observer when the following tow is brought aboard.
Some stakeholders believe that slippage is a serious problem in the
herring fishery because releasing catch before an observer can estimate
its species composition undermines accurate catch accounting.
This action allows catch to be slipped if: (1) Bringing catch
aboard
[[Page 8790]]
compromises safety; (2) mechanical failure prevents the catch from
being brought aboard; or (3) spiny dogfish clog the pump and prevent
the catch from being pumped aboard. If catch is slipped, the vessel
operator is required to complete a released catch affidavit within 48
hr of the end of the fishing trip. The released catch affidavit must
detail: (1) Why catch was slipped, (2) an estimate of the quantity and
species composition of the slipped catch, and (3) the time and location
of the slipped catch.
In 2010, the Northeast Fisheries Observer Program (NEFOP) revised
the training curriculum for observers deployed on herring vessels to
focus on effectively sampling in high-volume fisheries. NEFOP also
developed a discard log to collect detailed information on discards in
the herring fishery, including slippage, such as why catch was
discarded, the estimated amount of discarded catch, and the estimated
composition of discarded catch. Recent slippage data collected by
observers indicate that information about these events, and the amount
and composition of fish that are slipped, has improved; and the number
of slippage events by limited access herring vessels has declined.
Given NEFOP's recent training changes and its addition of a discard
log, NMFS believes that observer data on slipped catch, rather than
released catch affidavits, provide the best information to account for
discards. However, there is still a compliance benefit to requiring a
released catch affidavit because it will provide enforcement with a
sworn statement regarding the operator's decisions and may help NMFS
understand why slippage occurs.
NMFS expects that prohibiting slippage when vessels are carrying an
observer will help reduce slippage events in the herring fishery, and
thus improve the quality of observer catch data, especially data on
bycatch species encountered in the herring fishery. NMFS also expects
the released catch affidavit to help provide insight into when and why
slippage occurs. Additionally, NMFS expects that the slippage
prohibition will help minimize bycatch, and bycatch mortality, to the
extent practicable in the herring fishery.
3. Measures To Address River Herring Interactions
Amendment 5 establishes several measures to address the catch of
river herring in the herring fishery to minimize bycatch and bycatch
mortality to the extent practicable. River herring (the collective term
for alewife and blueback herring) are anadromous species that may co-
occur seasonally with herring and are sometimes harvested as a non-
target species in the herring fishery. When river herring are
encountered in the herring fishery, they are either discarded at sea
(bycatch) or, because they closely resemble herring, they are retained
and sold as part of the herring catch (incidental catch). In contrast
to bycatch, there is no MSA requirement to reduce incidental catch.
Often, the term ``incidental catch'' is used interchangeably with
``bycatch.'' It is important to recognize this distinction between
bycatch and incidental catch in the Atlantic herring fishery when
considering whether bycatch in this fishery is being reduced to the
extent practicable. While measures in Amendment 5 are not expressly
designed to address the catch of shad (American and hickory) in the
herring fishery, measures to reduce the catch of river herring are
expected to also reduce the catch of shad because of the overlapping
distributions of river herring and shad.
River herring are managed by the Atlantic States Marine Fisheries
Commission (ASMFC) and the individual Atlantic Coast states. According
to the most recent ASMFC river herring stock assessment (May 2012),
river herring populations have declined from historic levels and many
factors will need to be addressed to allow their recovery, including
fishing (in both state and Federal waters), river passageways, water
quality, predation, and climate change. In an effort to aid in the
recovery of depleted or declining stocks, the ASMFC, in cooperation
with individual states, prohibited state waters commercial and
recreational fisheries that did not have approved sustainable fisheries
management plans, effective January 1, 2012. NMFS considers river
herring to be a species of concern, but recently (78 FR 48944, August
12, 2013) determined that listing river herring, as either threatened
or endangered, under the Endangered Species Act is not warranted at
this time. NMFS is establishing a technical working group and will
continue to work closely with the ASMFC and others to develop a long-
term, dynamic conservation plan for river herring from Canada to
Florida. The working group will evaluate the impact of ongoing
restoration and conservation efforts, as well as new fisheries
management measures, which should benefit the species. It will also
review new information produced from ongoing research, including
genetic analyses, ocean migration pattern research, and climate change
impact studies, to assess whether recent reports, showing higher river
herring counts in the last 2 years, represent sustained trends. NMFS
intends to revisit its river herring status determination within the
next 5 years.
This action establishes River Herring Monitoring/Avoidance Areas
for the herring fishery, which are areas established for two-month
intervals to monitor river herring catch and encourage river herring
avoidance. The coordinates for these areas are described in the
regulations at Sec. 648.200(f)(4), and are based on NEFOP data from
between 2005 and 2009 as to where river herring catch (greater than 40
lb (18 kg)) occurred in the herring fishery. NMFS expects the slippage
prohibition and released catch affidavit requirement to improve NMFS's
understanding of river herring encounters in the herring fishery,
especially in the River Herring Monitoring/Avoidance Areas. As the
Council and NMFS learn more about river herring catch in the herring
fishery, vessels fishing in the River Herring Monitoring/Avoidance
Areas may be subject to additional regulations to further reduce river
herring catch in the herring fishery. While the magnitude of the effect
of river herring catch and bycatch on river herring populations is
unknown, minimizing river herring catch and bycatch to the extent
practicable is a goal of Amendment 5.
Amendment 5 establishes a mechanism to develop, evaluate, and
consider regulatory requirements for a river herring bycatch avoidance
strategy in the herring fishery. A river herring bycatch avoidance
strategy will be developed and evaluated by the Council, in cooperation
with participants in the herring fishery--specifically the Sustainable
Fisheries Coalition (SFC); the Massachusetts Division of Marine
Fisheries (MADMF); and the University of Massachusetts Dartmouth School
of Marine Science and Technology (SMAST). This measure is based on the
existing river herring bycatch avoidance program involving the SFC,
MADMF, and SMAST. This existing program is voluntary and seeks to
reduce river herring and shad bycatch by working within current
fisheries management programs, without the need for additional
regulatory requirements. The river herring bycatch avoidance program
includes portside sampling, real-time communication with the SFC on
river herring distribution and encounters in the herring fishery, and
data collection to evaluate whether oceanographic features may predict
high rates of river herring encounters.
[[Page 8791]]
Phase I of the river herring bycatch avoidance strategy is: (1)
Monitoring and sampling of herring catch from the River Herring
Monitoring/Avoidance Areas; (2) providing for adjustments to the River
Herring Monitoring/Avoidance Area and river herring bycatch avoidance
strategies through a future framework adjustment to the Herring FMP;
and (3) Council staff collaboration with SFC, MA DMF, and SMAST to
support the ongoing project evaluating river herring bycatch avoidance
strategies.
Upon completion of the existing SFC/MA DMF/SMAST river herring
bycatch avoidance project, Phase II of this measure will begin. Phase
II involves the Council's review and evaluation of the results from the
river herring bycatch avoidance project, and a public meeting to
consider a framework adjustment to the Herring FMP to establish river
herring bycatch avoidance measures. Measures that may be considered as
part of the framework adjustment include: (1) Adjustments to the River
Herring Monitoring/Avoidance Areas; (2) mechanisms to track herring
fleet activity, report bycatch events, and notify the herring fleet of
encounters with river herring; (3) the utility of test tows to
determine the extent of river herring bycatch in a particular area; (4)
the threshold for river herring bycatch that would trigger the need for
vessels to be alerted to move out of the Area; and (5) the distance
and/or time that vessels would be required to move from the Areas.
Amendment 5 also establishes the ability to consider implementing a
river herring catch cap for the herring fishery in a future framework
adjustment to the Herring FMP. Amendment 1 to the Herring FMP
identified catch caps as management measures that could be implemented
via a framework or the specifications process, with a focus on a
haddock catch cap for the herring fishery. Amendment 5 contains a
specific alternative that considers implementing a river herring catch
cap through a framework or the specifications process. On the basis of
the explicit consideration of a river herring catch cap, and the
accompanying analysis in Amendment 5, NMFS has advised the Council that
it would be more appropriate to consider a river herring catch cap in a
framework subsequent to the implementation of Amendment 5.
Amendment 5 contains preliminary analysis of a river herring catch
cap, but additional development of a range of alternatives (e.g.,
amount of cap, seasonality of cap, consequences of harvesting cap) and
the environmental impacts (e.g., biological, economic) of a river
herring catch cap is necessary prior to implementation. Therefore, it
is more appropriate to consider implementing a river herring catch cap
through a framework, rather than through the specifications. The
Council may begin development of the river herring catch cap framework
immediately, but the framework cannot be implemented prior to the
implementation of Amendment 5.
During the development of Amendment 5, the ASMFC began work on a
new stock assessment for river herring. It was hoped that the new
assessment would help inform the analysis to determine a reasonable
range of alternatives for a river herring catch cap. The ASMFC's river
herring assessment was completed in May 2012, and the Council took
final action on Amendment 5 in June of 2012. Therefore, there was not
enough time to review the assessment, and if appropriate, incorporate
its results in the development of a river herring catch cap in
Amendment 5. However, as noted below, the Council was later able to
consider this assessment when developing a river herring catch cap.
The Mid-Atlantic Fishery Management Council is also considering
establishing a river herring catch cap for its mackerel fishery.
Amendment 14 to the Atlantic Mackerel, Squid, and Butterfish FMP will
allow the Mid-Atlantic Council to consider river herring and shad catch
caps for the mackerel fishery. Due to the mixed nature of the herring
and mackerel fisheries, especially during January through April, the
potential for the greatest river herring catch reduction would come
from the implementation of a joint river herring catch cap for both the
herring and mackerel fisheries. On May 23, 2013, the New England and
the Mid-Atlantic Councils' technical teams for the herring and mackerel
fisheries met to begin development of river herring catch caps. The
Mid-Atlantic Council met on June 12, 2013, and recommended establishing
a river herring/shad catch cap of 236 mt for the mackerel fishery in
2014.
At its June 2013 meeting, the Council discussed the development of
river herring catch caps in Framework 3 to the Herring FMP. The Council
considered establishing catch caps by area and gear, as well as
establishing catch caps for both river herring and shad. While
Amendment 5 did not explicitly consider catch caps for shad, because
river herring and shad are closely related species, and the nature of
their encounters with the herring fishery are similar, Framework 3 will
evaluate the technical merits of developing a shad catch cap for the
herring fishery. At its September 2013 meeting, the Council took final
action on Framework 3 and recommended establishing river herring and
shad catch caps for midwater and bottom trawl gear in the herring
fishery. Framework 3, if approved, is expected to be implemented in the
spring or summer of 2014. Based on the ASMFC's recent river herring
assessment, data do not appear to be robust enough to determine a
biologically based river herring catch cap and/or to evaluate the
potential effects on river herring populations of such a catch cap on a
coast-wide scale. Still, the Council supports establishing a river
herring catch cap as soon as possible to encourage avoidance of river
herring and shad to minimize bycatch and bycatch mortality.
One of the primary goals of Amendment 5 is to address bycatch
issues through responsible management, consistent with the MSA National
Standard 9 requirement to minimize bycatch and mortality of unavoidable
bycatch to the extent practicable. Monitoring and avoidance are
critical steps to a better understanding of the nature and extent of
bycatch in this fishery in order to sufficiently analyze and, if
necessary, address bycatch issues. The Council considered other
measures to address river herring bycatch in Amendment 5, including
closed areas. Because the seasonal and inter-annual distribution of
river herring is highly variable in time and space, the Council
determined that the most effective measures in Amendment 5 to address
river herring bycatch would be those that increase at-sea sampling,
bycatch accounting, and promote cooperative efforts with the industry
to minimize bycatch to the extent practicable.
4. Measures To Address Midwater Trawl Access to Groundfish Closed Areas
Amendment 5 expands the existing requirements for midwater trawl
vessels fishing in Groundfish Closed Area I to all herring vessels
fishing with midwater trawl gear in the Groundfish Closed Areas. These
Closed Areas include: Closed Area I, Closed Area II, Nantucket
Lightship Closed Area, Cashes Ledge Closure Area, and Western Gulf of
Maine Closure Area. The coordinates for these areas are defined at
Sec. 648.81(a)-(e). This action requires vessels with a herring permit
fishing with midwater trawl gear in the Closed Areas to carry a NMFS-
approved observer and bring all catch aboard the vessel and make it
available for sampling by an observer. Herring
[[Page 8792]]
vessels not carrying a NMFS-approved observer may not fish for,
possess, or land fish in or from the Closed Areas. Vessels may make
test tows without pumping catch on board, provided that all catch from
test tows is available to the observer when the next tow is brought
aboard. This action allows catch to be released before it was pumped
aboard the vessel if: (1) Pumping the catch aboard could compromise
safety, (2) mechanical failure prevents the catch from being pumped
aboard, or (3) spiny dogfish have clogged the pump and prevent the
catch from being pumped aboard. But if catch is released for any of the
reasons stated above, the vessel operator is required to immediately
exit the Closed Area. The vessel may continue to fish, but it may not
fish in any Closed Area for the remainder of that trip. Additionally,
vessels that release catch before it has been sampled by an observer
must complete a midwater trawl released catch affidavit within 48 hr of
the end of the fishing trip. The released catch affidavit details: (1)
Why catch was released, (2) an estimate of the weight of fish caught
and released, and (3) the time and location of the released catch.
Given NEFOP's recent training changes and its addition of a discard
log, NMFS believes that observer data on slipped catch, rather than
released catch affidavits, provide the best information to account for
discards. However, there is still a compliance benefit to requiring a
released catch affidavit because it would provide enforcement with a
sworn statement regarding the operator's decisions and may help to
understand why slippage occurs.
Under current practice, as well as under the proposed revisions to
the standardized bycatch reporting methodology (SBRM) that are being
developed, the Northeast Fisheries Science Center (NEFSC) would
allocate all existing and specifically identified observer funding to
support SBRM observer coverage. Therefore, herring vessels would be
assigned observers based on SBRM coverage, including trips by midwater
trawl vessels into the Closed Areas. All trips by midwater trawl
vessels into the Closed Areas would have observer coverage, thereby
increasing observer coverage in the Closed Areas. But until there is
additional funding available, the number of trips midwater trawl
vessels can make into the Closed Areas would be limited by SBRM
funding. Additional observer coverage specifically for midwater trawl
trips into the Closed Areas would be possible after SBRM monitoring is
fully funded or if funds are specifically appropriated for such trips.
If a midwater trawl vessel cannot fish in the Closed Areas on a
particular trip because an observer is not assigned to that trip, any
negative economic impact to that vessel is expected to be minimal.
Analyses in the FEIS indicate that less than 10-percent of herring
fishing effort occurs in the Closed Areas and less than 13-percent of
the annual herring revenue comes from trips into the Closed Areas.
Midwater trawl vessels will still have access to the Closed Areas
during SBRM covered trips, even if there are less SBRM covered trips
than in years past. Additionally, midwater trawl vessels can fish
outside the Closed Areas without an observer.
Analyses in the Amendment 5 FEIS suggest that midwater trawl
vessels are not catching significant amounts of groundfish either
inside or outside the Closed Areas. Additionally, the majority of
groundfish catch by midwater trawl vessels is haddock, and the catch of
haddock by midwater trawl vessels is already managed through a haddock
catch cap for the herring fishery. However, the Council believes it is
important to determine the extent and nature of bycatch in the herring
fishery. This measure still allows the herring midwater trawl fishery
to operate in the Closed Areas, but it ensures that opportunities for
catch retention and sampling are maximized.
5. Adjustments to List of Measures Modified Through Framework
Adjustments or Specifications
Amendment 5 specifies the ability to modify management measures
revised or established by Amendment 5 through a framework adjustment to
the Herring FMP or the specifications process.
The measures that could be modified through a framework include:
(1) Changes to vessel trip notification and declaration requirements,
(2) adjustments to measures to address slippage, (3) River Herring
Monitoring/Avoidance Areas, (4) provisions for the river herring
bycatch avoidance program, (5) changes to criteria/provisions for
access to the Groundfish Closed Areas, and (6) river herring catch
caps.
The list of measures that could be modified through the
specifications process include: (1) Possession limits; (2) River
Herring Monitoring/Avoidance Areas; and (3) river herring catch caps.
Disapproved Measures
The following sections detail why NMFS disapproved three measures
that were proposed as part of Amendment 5. NMFS disapproved these three
measures because it found the measures to be inconsistent with the MSA
and other applicable law. The proposed rule for Amendment 5 described
NMFS's concerns with these measures' consistency with the MSA and other
applicable law. After review of public comment, NMFS, on behalf of the
Secretary, disapproved these measures; therefore, this final rule
excludes implementing regulations for these measures.
1. Increased Observer Coverage Requirements
As described previously, the NEFSC determines observer coverage
levels in the herring fishery based on the SBRM. Observer coverage in
the herring fishery is currently fully funded by NMFS. Amendment 5
proposed increasing observer coverage in the herring fishery by
requiring 100-percent observer coverage on Category A and B vessels.
Many stakeholders believe this measure is necessary to accurately
determine the extent of bycatch and incidental catch in the herring
fishery. The Council recommended this measure to gather more
information on the herring fishery so that it may better evaluate and,
if necessary, implement additional measures to address issues involving
catch and discards. The 100-percent observer requirement is coupled
with a target maximum industry contribution of $325 per day. There are
two types of costs associated with observer coverage: (1) Observer
monitoring costs, such as observer salary and travel costs, and (2)
NMFS support and infrastructure costs, such as observer training and
data processing. The monitoring costs associated with an observer in
the herring fishery are higher than $325 per day. Cost-sharing of
monitoring costs between NMFS and the industry would violate the
Antideficiency Act. Therefore, there is no current legal mechanism to
allow cost-sharing of monitoring costs between NMFS and the industry.
Throughout the development of Amendment 5, NMFS advised the Council
that Amendment 5 must identify a funding source for increased observer
coverage because NMFS's annual appropriations for observer coverage are
not guaranteed. Some commenters claim that the $325 per day industry
contribution was not a limit, but a target, and that the Council
intended the industry to pay whatever was necessary to ensure 100-
percent observer coverage. NMFS disagrees, and does not believe the
amendment specifies that the industry would pay all the monitoring
costs associated with 100-percent observer coverage, nor does
[[Page 8793]]
it analyze the economic impacts of the industry paying all the
monitoring costs. The FEIS for Amendment 5 analyzed alternatives with
the industry paying $325 per day or $1,200 per day (estimated sum of
observer monitoring costs and NMFS support and infrastructure costs),
but it did not analyze a range of alternatives that would approximate
total monitoring costs. Budget uncertainties prevent NMFS from being
able to commit to paying for increased observer coverage in the herring
fishery. Requiring NMFS to pay for 100-percent observer coverage would
amount to an unfunded mandate. Because Amendment 5 did not identify a
funding source to cover the costs of increased observer coverage, the
measure is not sufficiently developed to approve at this time.
Therefore, NMFS had to disapprove the 100-percent observer coverage
requirement. With the disapproval of this measure, this action
maintains the existing SBRM observer coverage levels and Federal
observer funding for the herring fishery.
Recognizing funding challenges, Amendment 5 specified status quo
observer coverage levels and funding for up to 1 year following the
implementation of Amendment 5, with the 100-percent observer coverage
and partial industry funding requirement to become effective 1 year
after the implementation of Amendment 5. During that year, the Council
and NMFS, in cooperation with the industry, were to attempt to develop
a way to fund 100-percent observer coverage.
During 2013, a working group was formed to identify a workable,
legal mechanism to allow for industry-funded observer coverage in the
herring fishery; the group includes staff from the New England and Mid-
Atlantic Councils and NMFS. To further explore the legal issues
surrounding industry-funded observer coverage, NMFS formed a working
group of Northeast Regional Office, NEFSC, General Counsel, and
Headquarters staff. The NMFS working group identified an administrative
mechanism to allow for industry funding of observer monitoring costs in
Northeast Region fisheries, as well as a potential way to help offset
funding costs that would be borne by the industry, subject to available
funding. This administrative mechanism would be an option to fund
observer coverage targets that are higher than SBRM coverage levels.
The mechanism to allow for industry-funded observer coverage is a
potential tool for all Northeast Region FMPs, but it would need to be
added to each FMP through an omnibus amendment to make it an available
tool, should the Council want to use it. Additionally, this omnibus
amendment could establish the observer coverage targets for Category A
and B herring vessels.
In a September 20, 2013, letter to the Council, NMFS offered to be
the technical lead on an omnibus amendment to establish the
administrative mechanism to allow for industry-funded observer coverage
in New England and Mid-Atlantic FMPs. At its September 2013 meeting,
the Council considered NMFS's offer and encouraged NMFS to begin
development of the omnibus amendment. At this time, NMFS expects to
present a preliminary range of alternatives for the omnibus amendment
to the New England and Mid-Atlantic Councils in early 2014.
Additionally, other Amendment 5 measures implemented in this action
help improve monitoring in the herring fishery. These measures include
the requirement for vessels to contact NMFS at least 48 hr in advance
of a fishing trip to facilitate the placement of observers, observer
sample station and reasonable assistance requirements to improve an
observer's ability collect quality data in a safe and efficient manner,
and the slippage prohibition and the sampling requirements for midwater
trawl vessels fishing in groundfish closed areas to minimize the
discarding of unsampled catch.
The same measure that would have required 100-percent observer
coverage, coupled with a $325 contribution by the industry, would have
also required that: (1) The 100-percent coverage requirement be re-
evaluated by the Council 2 years after implementation; (2) the 100-
percent coverage requirement be waived if no observers were available,
but not waived for trips that enter the River Herring Monitoring/
Avoidance Areas; (3) observer service provider requirements for the
Atlantic sea scallop fishery apply to observer service providers for
the herring fishery; and (4) states be authorized as observer service
providers. NMFS believes these additional measures are inseparable from
the 100-percent observer coverage requirement; therefore, NMFS had to
disapprove these measures too. With the disapproval of these measures,
the existing waiver and observer service provider requirements remain
in effect.
2. Measures To Minimize Slippage
Amendment 5 proposed establishing slippage caps for the herring
fishery. Once there have been 10 slippage events in a herring
management area by vessels using a particular gear type (including
midwater trawl, bottom trawl, and purse seine) and carrying an
observer, vessels that subsequently slip catch in that management area,
using that particular gear type and carrying an observer, would be
required to immediately return to port. NMFS would track slippage
events and notify the fleet once a slippage cap had been reached.
Slippage events due to spiny dogfish preventing the catch from being
pumped aboard the vessel would not count against the slippage caps, but
slippage events due to safety concerns or mechanical failure would
count against the slippage caps. The Council recommended these slippage
caps to discourage the inappropriate use of the slippage exceptions,
and to allow for some slippage, without being unduly burdensome on the
fleet.
Throughout the development of Amendment 5 NMFS identified potential
concerns with the rationale supporting, and legality of, the slippage
caps. The need for, and threshold for triggering a slippage cap (10
slippage events by area and gear type) does not appear to have a strong
biological or operational basis. Recent observer data (2008-2011)
indicate that the estimated amount of slipped catch is relatively low
compared to total catch (approximately 1.25 percent). Observer data
also indicate that the number of slippage events is variable across
years. During 2008-2011, the number of slippage events per year ranged
between 35 and 166. The average number of slippage events by gear type
during 2008, 2009, and 2011 were as follows: 4 by bottom trawl; 36 by
purse seine; and 34 by midwater trawl. The data did not consistently
differentiate the slippage events by area.
Under the proposed measure, once a slippage cap for a particular
gear type in a herring management area has been met, vessels that slip
catch, even if the reason for slipping was safety or mechanical
failure, would be required to return to port. Vessels could continue
fishing following slippage events 1 through 10, but must return to port
following the 11th slippage event, regardless of the vessel's role in
the first 10 slippage events. Conversely, vessels responsible for
slippage events 1 through 10, could continue fishing after the 11th
slippage event, provided they do not slip catch again. NMFS believes
this aspect of the proposed measure is inequitable. Additionally, this
measure could have resulted in a vessel operator having to choose
between trip termination and bringing catch aboard despite a safety
concern. For these reasons, NMFS believes this measure is inconsistent
with the MSA National Standards 2 and 10 and disapproved it.
[[Page 8794]]
The measures to minimize slippage are based on the sampling
requirements for midwater trawl vessels fishing in Groundfish Closed
Area I. However, there are important differences between these
measures. Under the Closed Area I requirements, if midwater trawl
vessels slip catch, they are allowed to continue fishing, but they must
leave Closed Area I for the remainder of that trip. The requirement to
leave Closed Area I is less punitive than the proposed requirement to
return to port. Therefore, if the safety of bringing catch aboard is a
concern, leaving Closed Area I and continuing to fish would likely be
an easier decision for a vessel operator to make than the decision to
terminate the trip and return to port. Additionally, because the
consequences of slipping catch apply uniformly to all vessels under the
Closed Area I requirements, inequitable application among the fleet is
not an issue for the Closed Area I requirements, like NMFS believes it
is for the proposed slippage caps.
If the Council wants to revise the slippage cap in a future action,
the revisions would need to address issues concerning safety, the
biological/administrative justification for the cap's trigger, and
equity. The slippage cap could be revised to be more similar to the
sampling requirements in Groundfish Closed Area I, such that all
vessels that slip catch have a consequence. This revision would
alleviate NMFS's concern with the equitable application of the slippage
cap among those who contribute to reaching the cap, as well as its
concern with the basis for triggering the cap. The consequence of
slipped catch could be a requirement to leave the area where the
slippage event occurred; the area could be a herring management area or
a statistical area. But the consequence should not be so severe as to
create a safety issue. To alleviate safety concerns, slippage for
safety, mechanical, or excess spiny dogfish catch reasons could be
exempt from any consequence, except that the vessel would still be
required to complete a released catch affidavit.
Even though the slippage caps were disapproved, the prohibition on
slippage, the released catch affidavit, and the ongoing data collection
by NEFOP, and 100-percent observer coverage requirement for midwater
trawl vessels fishing in groundfish closed areas still allow for
improved monitoring in the herring fishery, increased information
regarding discards, and an incentive to minimize the discarding of
unsampled catch.
3. Reporting Requirements for Dealers
During the development of Amendment 5, some stakeholders expressed
concern that herring catch is not accounted for accurately and that
there needs to be a standardized method to determine catch. In an
effort to address that concern, Amendment 5 proposed requiring herring
dealers to accurately weigh all fish and, if catch is not sorted by
species, dealers would be required to document for each transaction how
they estimate relative species composition. During the development of
Amendment 5, NMFS identified potential concerns with the utility of
this measure.
Dealers are currently required to accurately report the weight of
fish, which is obtained by scale weights and/or volumetric estimates.
Because this proposed measure did not specify how fish are to be
weighed, and would still allow volumetric estimates, the measure may
not have changed dealer behavior and, therefore, the requirement may
not have led to any measureable change in the accuracy of catch weights
reported by dealers. Further, this measure did not provide standards
for estimating species composition. Without standards for estimating
species composition or for measuring the accuracy of the estimation
method, NMFS may have been unable to evaluate the sufficiency of the
methods used to estimate species composition. For these reasons, the
proposed requirement for dealers to document the methods used to
estimate species composition may have not improved the accuracy of
dealer reporting.
While the measure requiring dealers to document methods used to
estimate species composition may not have direct utility in monitoring
catch in the herring fishery, it may still inform NMFS's and the
Council's understanding of the methods used by dealers to determine
species weights. That information may aid in development of
standardized methods for purposes of future rulemaking. Furthermore,
full and accurate reporting is a permit requirement; failure to do so
could render dealer permit renewals incomplete, precluding renewal of
the dealer's permit. Therefore, there is incentive for dealers to make
reasonable efforts to document how they estimate relative species
composition, which may increase the likelihood that useful information
will be obtained as a result of this requirement.
In light of the foregoing, NMFS evaluated whether the proposed
measure has practical utility, as required by the MSA and the Paperwork
Reduction Act (PRA), that outweighs the additional reporting and
administrative burden on the dealers. In particular, NMFS considered
whether and how the proposed measure would help prevent overfishing,
promotes the long-term health and stability of the herring resource,
monitors the fishery, facilitates inseason management, or judges
performance of the management regime.
NMFS determined that this measure would not measurably improve the
accuracy of dealer reporting or the management of the herring
resources. NMFS also determined that this measure does not comply with
National Standard 7's requirement to minimize costs and avoid
unnecessary duplication, and the PRA's requirement for the utility of
the measure to outweigh the additional reporting and administrative
burden on the dealers. Therefore, NMFS disapproved the dealer reporting
requirements. With the disapproval of this measure, the existing
requirement that dealers accurately report the weight of fish is still
in effect.
If the Council wants to revise dealer reporting requirements in a
future action, the revisions would need to address issues concerning
accuracy and utility of the information reported and could be addressed
in several ways.
The Council could select Alternative 3.1.5.2 Sub-Option 2C in
Amendment 5 (requiring vessel owners to review and validate data for
their vessels in Fish-on-Line) and propose that measure in a future
action. This measure would be a change from status quo, and it has some
utility, as it helps identify, and possibly reduce, discrepancies
between dealer and vessel reports. This option has an accompanying
recommendation for daily vessel trip and dealer reports. Changing
reporting frequency would increase the timeliness of reports and would
provide data to NMFS for validation sooner than they are currently
available.
Another way for the Council to revise the dealer reporting
requirement would be to clarify and standardize the methods used to
``accurately weigh all fish.'' Does the measure require fish to be
weighed using a scale? Does the measure require a volumetric estimate
based on a certified fish hold or standardized totes? If the methods to
``accurately weigh all fish'' were specified, it would likely change
dealer behavior from status quo, and may, depending on the methods,
improve the accuracy of dealer reports.
Alternatively, the Council could take this opportunity to revisit
the original concern that sparked the development of the dealer
reporting requirement, that
[[Page 8795]]
landings data were not verified by a third party, and revise the
measure to better address that concern. Lastly, the sub-option
requiring dealers to document how they estimate the composition of
catch was intended to gather information on methods used by dealers to
estimate species composition. Another way to obtain that type of
information would be to gather it as part of a data collection program
that would update community profiles for Northeast fisheries.
Comments and Responses
NMFS received 8,163 comments during the comment period on the
proposed rule. Form letters, comprising 8,008 comments, were submitted
by two environmental advocacy groups (EAGs). Comments were also
submitted by other EAGs, individuals involved in other fisheries (e.g.,
groundfish, tuna, recreational), the general public, the herring
industry, and the Council. Only comments relevant to measures
considered in Amendment 5 are summarized and addressed below. Comments
related to other fishery management actions or general fishery
management practices are not addressed here. Some commenters re-
submitted comments on the DEIS for Amendment 5. Comment letters
submitted on the DEIS for Amendment 5 are addressed in the Section
8.1.4 of the Amendment 5 FEIS, so neither the comment nor the response
is repeated here.
1. General Comments
Comment 1: Many commenters urged NMFS to approve Amendment 5 in its
entirety, but provided no specific comments on the proposed measures.
Additional commenters acknowledged that the amendment contains many
important components, but they believe the slippage cap and 100-percent
observer coverage requirement are the two measures that are critical to
managing the herring fishery. One commenter does not believe that any
of the concerns voiced by NMFS regarding the 100-percent observer
coverage requirement and the slippage cap are valid because the Council
designed these measures with safety and fairness in mind. Many
commenters believe it is essential that NMFS approve and implement
Amendment 5 because the herring resource, a cornerstone of the
Northeast ecosystem, is too important to manage inadequately.
Response: NMFS agrees with the commenters that herring is critical
to the health of the Northeast ecosystem and that it must have careful
and effective management. NMFS also supports improvements to fishery
dependent data collections by expanding, to the extent practicable, at-
sea monitoring of the herring fishery and reducing bycatch and
unnecessary discarding. While the Council may have designed the 100-
percent observer coverage requirement and slippage cap measure to
consider safety and fairness, as described previously, NMFS believes
the resulting 100-percent observer requirement and slippage caps
proposed in Amendment 5 are inconsistent with the MSA and other
applicable law. Therefore, regardless of NMFS's desire to increase
monitoring and reduce bycatch in the herring fishery, it cannot approve
and implement measures it believes inconsistent with applicable law.
NMFS agrees with the commenter that herring is an important marine
resource in the Northeast and that Amendment 5 has many of the tools to
improve management of the herring fishery, but disagrees that the
amendment has no utility without the 100-percent observer coverage
requirement and slippage caps. Amendment 5 implements many measures
that improve monitoring and bycatch minimization in the herring
fishery, including adjustments to the fishery management program and
at-sea monitoring, such as prohibiting slippage; and measures to
address river herring interactions and midwater trawl access to
groundfish closed areas.
Comment 2: Two EAGs expressed their concern that, in the proposed
rule, NMFS explained that it may not be able to approve several
critical elements of Amendment 5. The commenters believe that NMFS
fails to recognize the substantial need for these measures, their
central role in the overall Amendment 5 reform package, and their
strong justification in the FEIS. A number of other commenters raised
similar sentiments focusing on their belief that these measures strike
a carefully designed balance between conservation and industry needs,
are consistent with the MSA and other applicable law, and should be
approved in full.
Response: NMFS expressed concern with the 100-percent observer
coverage requirement, the slippage caps, and the dealer reporting
requirements throughout the development of this amendment. But these
measures have strong support from many stakeholders, and they were not
modified in such a way as to alleviate NMFS's concerns. The proposed
rule for Amendment 5 described potential concerns about these measures'
consistency with the MSA and other applicable law. No new or additional
information was identified by commenters during the public comment
period on the NOA for Amendment 5 to address NMFS's concerns with the
identified deficiencies of these measures. Therefore, on July 18, 2013,
NMFS determined these three measures must be disapproved.
On September 20, 2013, NMFS sent a letter to the Council with
recommendations on how these measures could be revised to address these
measures' identified deficiencies. If the Council chooses to revise
these measures, NMFS will work with the Council to design effective
measures that help improve management of the herring fishery. Revised
measures could be addressed in upcoming Council actions. Whether that
action would be an amendment or framework will depend on the scope of
the revised measure.
The measures in Amendment 5 that were approved by NMFS are
consistent with the MSA and other applicable law, and analysis in the
FEIS indicates these measures will improve data quality as well as
bycatch avoidance and minimization.
Comment 3: Several EAGs commented that NMFS undermined the public's
opportunity to effectively comment on Amendment 5 measures prior to
NMFS's decision to approve, disapprove, or partially approve Amendment
5. The commenters stated that because the preamble of the proposed rule
outlined NMFS's serious concerns about the approvability of several
Amendment 5 measures and requested public comment, all comments
received through the proposed rule's comment period deadline (July 18,
2013) should be considered in Amendment 5's approval decision.
Response: The NOA for Amendment 5 published on April 22, 2013; the
notice for its accompanying FEIS published on April 26, 2013; and the
Amendment 5 proposed rule published on June 3, 2013. The comment
periods for the NOA and proposed rule overlapped for 19 days. NMFS must
approve/disapprove an amendment by 30 days after the close of the
comment period on the NOA. That decision date for Amendment 5 was July
19, 2013. Therefore, it would not have been possible to consider all
public comments received through July 18, 2013, in the decision to
approve/disapprove Amendment 5.
NMFS received over 100 comments during the NOA comment period.
While most of those comments expressed strong support for the full
approval of Amendment 5, they did not offer solutions to NMFS's
identified
[[Page 8796]]
deficiencies in Amendment 5 measures. Additionally, while not
explicitly considered in the decision to partially approve Amendment 5,
NMFS reviewed and considered all comments received during the proposed
rule comment period prior to publishing this final rule. However, no
new or additional information was identified by commenters during the
public comment period on the proposed rule to address NMFS's concerns
with the disapproved measures.
Additionally, NMFS's approvability concerns with the three measures
disapproved in Amendment 5 should have been no surprise to interested
stakeholders. NMFS's concerns with these measures had been discussed
throughout the development of Amendment 5, and were clearly articulated
in a comment letter to the Council (dated June 5, 2012) prior to the
Council taking final action on Amendment 5 in June 2012.
Comment 4: One EAG believes that Amendment 5 segments decision
making and fails to: (1) Consider whether river herring and shad should
be stocks in the Herring FMP, (2) minimize river herring and shad
bycatch to the extent practicable, and (3) consider a range of
alternatives for an acceptable biological catch (ABC) control rule for
herring.
Response: Amendment 5 is not required to consider all aspects of
management of the herring fishery; instead the amendment is focused on
considering measures to improve monitoring and address bycatch.
Considering whether river herring and shad should be stocks in the
Herring FMP or considering a range of alternatives for an ABC control
rule for herring are outside the scope of Amendment 5.
Amendment 5 implements the following measures to address bycatch in
the herring fishery: (1) Prohibiting slippage, with exceptions for
safety concerns, mechanical failure, and spiny dogfish preventing catch
from being pumped aboard the vessel, and requiring a released catch
affidavit to be completed for each slippage event; (2) expanding at-sea
sampling requirements for all midwater trawl vessels fishing in
groundfish closed areas; (3) establishing a new open access permit to
reduce the potential for the regulatory discarding of herring in the
mackerel fishery; (4) establishing the ability to consider a river
herring catch cap in a future framework; (5) establishing River Herring
Monitoring/Avoidance Areas; (6) evaluating the ongoing bycatch
avoidance program investigation of providing real-time, cost-effective
information on river herring distribution and fishery encounters in
River Herring Monitoring/Avoidance Areas; and (7) expanding and adding
reporting and sampling requirements designed to improve data collection
methods, data sources, and applications of data to better determine the
amount, type, disposition of bycatch.
The Herring FMP, and related bycatch measures in the Northeast
Multispecies FMP, comply with National Standard 9's requirement to
minimize bycatch and bycatch mortality to the extent practicable.
Amendment 5 implements many measures designed to provide incentives for
incidental catch and bycatch avoidance and gather more information that
may provide a basis for future bycatch avoidance or bycatch mortality
reduction measures. These measures are supported by sufficient analysis
and consideration of the best available scientific information and the
MSA National Standards, and represent the most practicable bycatch
measures based on the information available at this time.
In November 2012, the Council voted to consider whether river
herring and shad should be stocks in the herring fishery in an
amendment during 2013. The Council did not have the time to consider
whether river herring and shad should be stocks in the Herring FMP
during 2013; therefore, the Council made this consideration a Herring
FMP priority for 2014.
The Council considered an ABC control rule for herring as part of
the 2013-2015 Herring Specifications/Framework 2 to the Herring FMP.
The Council determined, based on recommendations from its Scientific
and Statistical Committee (SSC), that the constant catch ABC control
rule adequately accounts for Atlantic herring's role as forage, as it
allows for sufficient Atlantic herring biomass through 2015 to support
ecosystem considerations, including Atlantic herring's forage role in
the ecosystem, and yields short-term biomass projections for 2013-2015
that are very similar to other forage fish control rules (e.g., Lenfest
Forage Fish Report control rule; Pacific Fishery Management Council's
control rule for coastal pelagic species). The June 2012 herring stock
assessment made a significant advance in accounting for herring's role
as a forage species by revising natural mortality rate and the constant
catch ABC control rule was developed from catch projections in that
assessment. The SSC recommended that considerably more analysis would
be necessary before it could support applying forage fish control rules
like the Lenfest and Pacific Council approaches to herring in the
future, including evaluating predator-prey models, the relationship
between maximum sustainable yield and changing natural mortality rates
due to changes in consumption, and unintended consequences of treating
forage species differently than other managed species. Based on the
SSC's recommendations, the Council discussed that control rules for
forage species, such as the Lenfest and Pacific Council control rules,
should receive further evaluation prior to any potential implementation
as a long-term strategy for managing herring, and should be evaluated
in a future amendment to the Atlantic Herring FMP. NMFS concurs with
the Council's conclusions on the constant catch ABC control rule and
further consideration on forage-based control rules for Atlantic
herring, as described in NMFS's August 29, 2013, letter to the Council,
including the implications of forage-based control rules on other
components of the ecosystem and on the biological reference points for
Atlantic herring. The effective date of the 2013-2015 Atlantic Herring
Specifications/Framework 2 was September 30, 2013, and NMFS published
the final rule on October 4, 2013, (78 FR 61828).
Comment 5: One EAG believes that Amendment 5 was unlawfully delayed
because the NOAs for the amendment and its FEIS were not published
until April 2013, despite Amendment 5 being completed by the Council
and submitted to NMFS on December 21, 2012.
Response: The Council adopted Amendment 5 on June 20, 2012, and
submitted Amendment 5 to NMFS for initial review on September 10, 2012.
NMFS reviewed the amendment for consistency with NEPA requirements and
identified deficiencies in the NEPA analysis that needed to be
addressed. Following a series of revisions, the Council submitted
Amendment 5 to NMFS on March 25, 2013. Following the March submission,
NMFS determined that the NEPA analysis for Amendment 5 met the
necessary requirements and transmitted Amendment 5 to the Secretary on
April 16, 2013. An NOA for the FEIS was prepared for Amendment 5 and
published on April 26, 2013, with a comment period ending May 28, 2013,
and an NOA for the amendment published on April 22, 2013, with a
comment period ending June 21, 2013.
[[Page 8797]]
2. Comments on Adjustments to the Fishery Management Program
Comment 6: One commenter opposes transfers-at-sea because they
believe that all fish should be counted at the dock before they are
transferred.
Response: During the early development of Amendment 5, NMFS
identified transfers-at-sea as one potential issue to address when
developing a more comprehensive catch monitoring program for the
herring fishery. Herring is transferred at sea between harvesting
vessels and vessels purchasing herring for personal use as bait,
herring carriers, and other permitted herring vessels for transport.
The Council's Herring Plan Development Team (PDT) reviewed herring
transfer-at-sea data and found that issues related to reporting and
monitoring of transfers-at-sea had largely been clarified in recent
years through explicit reporting guidance from NMFS. Additionally, data
in Table 127 in Section 6.1.2.2.5 of the Amendment 5 FEIS support the
conclusion that the amount of herring transferred at sea is minimal and
represents a very small fraction of the herring fishery. Given the
improved monitoring of transfers-at-sea, his action allows for status
quo transfer-at-sea activities to continue in the herring fishery
because any additional reporting burden would outweigh the potential
benefit of limiting transfers-at-sea.
Comment 7: Commenters urged NMFS to approve the requirement that
herring dealers accurately weigh all fish, because accurate landings
data will ensure catch accountability, including catch estimates for
river herring and shad, for the herring fishery and it has strong
support from stakeholders. Commenters disagree with NMFS's language in
the proposed rule that describe this measure is essentially status quo.
They believe this measure is intended to end the practice of dealers
reporting visual estimates of catch weight in favor of verifiable
methods such as scales or volumetric estimates of fish holds.
Additionally, commenters encouraged NMFS to include effective
regulations implementing this measure in the final rule for Amendment
5, especially prohibiting visual volumetric estimates of catch weight
and specifying third-party verification of landings.
Response: Section 6.1.4.1 of the Amendment 5 FEIS provides examples
of how dealers would comply with the requirement to ``accurately weigh
all fish.'' It describes dealers weighing fish on scales, obtaining
volumetric estimates from certified fish holds, and using a volumetric
estimate of a box or container of fish to serve as the weight of any
box of fish of a similar size. All of these practices are currently
used by dealers. Because the FEIS describes using a volumetric estimate
of a container of fish to generate the weight of any container of a
similar size, NMFS believes that the amendment would have continued to
allow, rather than end, the practice of visual estimates of catch
weight. In analyzing the effectiveness of using a volumetric estimate
of a container of fish to generate the weight of any container of a
similar size, the FEIS concludes that this example would result in very
little, if any, change in dealer behavior and that estimates may,
therefore, not be an improvement over status quo.
The MSA only allows NMFS to approve or disapprove a measure in an
amendment; it does not allow NMFS to substantially modify a measure.
NMFS would have had to substantially modify the proposed requirement
for dealers to ``accurately weigh all fish'' in order to prohibit
visual volumetric estimates of catch weight or to require third-party
verification of landings. Dealers are currently required to accurately
report the weight of fish. Lacking the ability to modify the proposed
dealer weigh requirement, NMFS disapproved the proposed requirement
because it would not likely have changed dealer behavior and would not
likely have improved the accuracy of weights reported by dealers.
Comment 8: Some commenters believe that requiring dealers to
document their methods for estimating catch composition, as proposed in
Amendment 5, would ensure that mixed-species catches are more
accurately weighed by dealers, thus aiding in the monitoring of
depleted species such as river herring and certain groundfish species.
Response: NMFS disagrees that requiring dealers to document their
methods for estimating catch composition would ensure that mixed-
species catch are more accurately weighed by dealers. As described
previously, the proposed measure that dealers ``accurately weigh all
fish'' did not require dealers to weigh fish on a scale. Additionally,
the requirement to document how the composition of a mixed catch is
estimated would not require the use of any particular method to
estimate species composition. In the absence of a requirement to change
estimation methods, dealers would be unlikely to change their
estimation methods from current practices; therefore, it is unlikely
that that this measure would have improved the accuracy of weights
reported by dealers.
Comment 9: One commenter supports the requirement that dealers
accurately weigh all fish and sort catch by species. The commenter
believes that the mechanical weighing of fish, not relying on
volumetric estimates, is the most accurate way to monitor catch in the
herring fishery. The commenter also believes these proposed dealer
reporting requirements would aid in accurate catch reporting, help
prevent overfishing, and promote long-term health of the herring
resource by ensuring that catch stays within catch limits.
Response: NMFS agrees that the mechanical weighing of fish, rather
than relying on volumetric estimates, is often the most accurate method
to determine weight. However, Amendment 5 would not have required the
mechanical weighing of fish, nor would it have required dealers to sort
catch by species. Therefore, the proposed measure would not have
improved the accuracy of catch reporting, help prevent overfishing, or
promote the long-term health of the herring resource by ensuring catch
stays within catch limits any more that the current requirement that
dealers accurately report the weight of fish.
Comment 10: Several EAGs stated that the Amendment 5 FEIS does not
contain sufficient justification to indicate that a new open access
herring permit with a 20,000-lb (9-mt) herring possession limit for
limited access mackerel vessels fishing in Areas 2 and 3 is needed.
They believe that this new permit would result in new, poorly
understood effort in the mackerel fishery outside the scope of the new
monitoring program and would increase directed herring fishing during
times and areas where river herring and shad incidental catch is of
great concern. Additionally, they do not believe this measure would
help satisfy National Standard 9 requirements.
Response: NMFS believes the FEIS provides sufficient justification
for establishing the new Areas 2/3 Open Access Herring Permit. Section
6.1.5 of the FEIS describes the significant overlap between the
mackerel and herring fisheries. Mackerel and herring co-occur,
particularly during January through April, which is a time that vessels
often participate in both fisheries. Not all vessels participating in
the mackerel fishery qualify for a limited access herring permit
because they either did not have adequate herring landings or they are
new participants in the mackerel fishery.
Currently, vessels issued an open access herring permit and
participating in the mackerel fishery are required to discard any
herring in excess of the
[[Page 8798]]
open access permit's 6,600-lb (3-mt) possession limit. The FEIS
suggests that herring discards in the mackerel fishery are currently
low, and states that the extent to which discarding may be minimized by
increasing the possession limit to 20,000 lb (9 mt) is unclear.
However, VTR data may not be well suited to reflect a discard problem
at this time, and may not fully characterize the potential for this
problem to exist in the future. Additionally, the industry has stated
that it has not been fishing for mackerel as much in recent years
because mackerel are less available to the fishery now as they may have
shifted to offshore areas, and because of concerns about encountering
herring in quantities larger than the current open access herring
permit possession limit.
Therefore, the creation of the new Areas 2/3 Open Access Herring
Permit is intended to minimize the potential for regulatory discarding
of herring by limited access mackerel vessels that did not qualify for
a limited access herring permit, especially if effort in the mackerel
fishery should approach historical levels. This is consistent with
National Standard 9's requirement to minimize bycatch to the extent
practicable. All herring catch and discards are tracked against herring
ACL/sub-ACLs, so the biological impact of the new permit on herring is
expected to be neutral.
Ongoing observer coverage in the herring fishery, in combination
with the measures in Amendment 5 prohibiting slippage, should improve
observer data on bycatch and incidental catch in the herring fishery.
Further, possession limits can be modified through a framework
adjustment or the specifications process. If the catch of river herring
and shad is determined to be too high, the 20,000-lb (9-mt) possession
limit could be modified in a future action.
Comment 11: A few commenters support approval of the following
measures: (1) Revising regulatory definitions of transfer at-sea and
offload, particularly to lessen the likelihood of double counting
catch; (2) revising operating provisions for herring carriers (i.e.,
At-Sea Dealer Permit, exempting herring carriers from VTR requirements)
to minimize data mismatches between dealer and vessel reports and
lessen the likelihood of double counting catch; (3) providing herring
carriers with flexibility in the 7-day enrollment period associated
with the herring carrier LOA by also allowing carriers to declare trips
via VMS; (4) establishing an Areas 2/3 Open Access Permit (Category E)
to limit the potential for regulatory discards of herring during
mackerel fishing; (5) modifying the existing 72-hr trip notification
requirement to a 48-hr notification requirement; (6) prohibiting
vessels from turning off their VMS when in port; and (7) requiring
vessels working cooperatively to be subject to the most restrictive
possession limit.
Response: NMFS concurs with the commenters. These measures were
approved, and this action implements them, because NMFS believes these
measures will help improve monitoring and address bycatch in the
herring fishery, improve overall management of the herring fishery, and
are consistent with the MSA and other applicable law.
Comment 12: One commenter questioned why vessels issued the new
Areas 2/3 Open Access Permit (Category E) would be subject to the same
notification requirements as limited access vessels, but not limited
access catch monitoring requirements.
Response: Amendment 5 states that Category E permits would be
subject to the same notification and reporting requirements as Category
C (Incidental Catch Limited Access Herring Permit) vessels. Therefore,
this action establishes notification and reporting requirements for the
Category E permit that are consistent with the requirements for
Category C vessels, including the requirement to possess and maintain a
VMS, VMS activity declaration and pre-landing requirements, and catch
reporting requirements (i.e., submission of daily VMS catch reports and
weekly VTRs).
Amendment 5 does not state that Category E permits would be subject
to the same catch monitoring requirements as Category C vessels,
including the proposed vessel requirements to help improve at-sea
sampling and measures to minimize the discarding of catch before it has
been made available to observers for sampling. When describing or
analyzing catch monitoring requirements, Amendment 5 does not describe
extending catch monitoring requirements for Category C vessels to
Category E vessels, nor does it analyze the impacts of catch monitoring
requirements on Category E vessels. Because the Category C catch
monitoring requirements were not discussed or analyzed in relation to
Category E vessels, this action does not extend those catch monitoring
requirements to Category E vessels.
Comment 13: One commenter was concerned that herring midwater trawl
and purse seine vessels would still be subject to the more restrictive
groundfish requirement that vessels contact NMFS 72-hr in advance of
fishing trip to request an observer, rather than the less restrictive
48-hr trip notification requirement in Amendment 5. To minimize the
potential for confusion, one commenter encourages NMFS to work with the
Council to change the 72-hr groundfish requirement to be consistent
with the 48-hr herring requirement.
Response: NMFS agrees that differences in the pre-trip observer
notification requirement may cause the herring industry confusion, and
NMFS will work with the Council toward standardizing the 72-hr
requirement to a 48-hr requirement in an upcoming groundfish action.
3. Comments on Adjustments to At-Sea Monitoring
Comment 14: Several commenters urged NMFS to approve critical
measures in Amendment 5 designed to better monitor catch and bycatch in
the herring fishery, including the 100-percent coverage requirement.
They explain that the Council approved the 100-percent observer
coverage requirement on Category A and B vessels with widespread public
support from commercial and recreational fishermen, eco-tourism and
coastal businesses, river herring and coastal watershed advocates, and
other members of the public. They believe that 100-percent observer
coverage is justified, given the fleet's harvesting capacity and its
demonstrated bycatch, and makes it possible to document rare bycatch
events. Additionally, they believe the 100-percent coverage measure is
consistent with the MSA and other applicable law, and necessary to meet
requirements to end overfishing, minimize bycatch, and ensure
accountability.
Response: NMFS supports increasing observer coverage to the extent
practicable to better monitor catch and bycatch in the herring fishery.
Throughout the development of Amendment 5, NMFS advised the Council
that Amendment 5 must identify a funding source for increased observer
coverage because NMFS's annual appropriations for observer coverage are
not guaranteed. Budget uncertainties prevent NMFS from being able to
commit to paying for increased observer coverage in the herring
fishery. Requiring NMFS to pay for 100-percent observer coverage would
amount to an unfunded mandate. Because Amendment 5 does not identify a
funding source to cover the costs of increased observer coverage, the
measure is not sufficiently developed to approve at this time.
Therefore, NMFS had to disapprove the 100-percent observer coverage
requirement.
[[Page 8799]]
With the disapproval of the 100-percent observer coverage
requirement measure, the existing SBRM observer coverage levels and
Federal observer funding for the herring fishery remain in effect. The
approved at-sea sampling measures and other bycatch minimizing measures
in Amendment 5 reduce bycatch to the extent practicable. Current
observer coverage includes SBRM coverage levels that used to monitor
bycatch. In addition to SBRM coverage, Amendment 5 provides for full
accounting of catch in groundfish closed areas, aimed at determining
the accuracy of claims of recreational fishermen and environmental
groups of high incidence of unreported groundfish bycatch. Given the
increased level of coverage in groundfish closed areas and data
indicating that herring vessels have low bycatch incidence, NMFS's
disapproval of the 100-percent observer coverage measure did not
appreciably reduce the Herring FMP's ability to minimize bycatch.
The MSA National Standards also require the Councils and NMFS to
consider costs and efficient use of resources to the extent
practicable. The 100-percent observer coverage requirement was
accompanied by a cost-sharing measure that attempted to mitigate the
impact of the relatively high cost of 100-percent observer coverage on
the industry. However, the Council's recommendation for NMFS and the
industry to share the observer monitoring costs was not sufficiently
developed to avoid conflicting with the Antideficiency Act.
Consequently, maintaining the existing SBRM coverage rates that have
been determined to be sufficient for vessels fishing for herring
outside of groundfish closed areas, combined with increasing coverage
for vessels fishing for herring inside groundfish closed areas, plus
other measures such as improved sampling and administrative measures
are the most practicable observer coverage measures for the fishery at
this time. In total, the new measures approved as part of Amendment 5
meet the MSA requirements to end overfishing, minimize bycatch to the
extent practicable, and ensure catch accountability.
Recognizing funding challenges, Amendment 5 specified status quo
observer coverage levels and funding for up to 1 yr following the
implementation of Amendment 5, with the 100-percent observer coverage
and partial industry funding requirement to become effective 1 yr after
the implementation of Amendment 5. During that year, the Council and
NMFS, in cooperation with the industry, would attempt to develop a way
to fund 100-percent observer coverage.
During 2013, staff from NMFS and the New England and Mid-Atlantic
Councils formed a working group to identify a workable, legal mechanism
to allow for industry-funded observer coverage in the herring and
mackerel fisheries. To further explore the legal and logistical issues
surrounding industry-funded observer coverage, NMFS formed a working
group of Northeast Regional Office, NEFSC, General Counsel Northeast,
and NMFS Headquarters staff. The NMFS working group identified an
administrative mechanism to allow for industry funding of observer
monitoring costs in Northeast Region fisheries, as well as a potential
way to help offset funding costs that would be borne by the industry,
subject to available funding. This administrative mechanism would be an
option to fund observer coverage targets that are higher than SBRM
coverage levels and would likely include a prioritization process to
allocate available funding across fisheries. The mechanism to allow for
industry-funded observer coverage is a potential tool for all Northeast
Region FMPs, but would need to be added to each FMP through an omnibus
amendment to make it an available tool, should the Council want to use
it. Additionally, this omnibus amendment could establish observer
coverage targets for Category A and B herring vessels.
In a September 20, 2013, letter to the Council, NMFS offered to be
the technical lead on an omnibus amendment to establish the
administrative mechanism to allow for industry-funded observer coverage
in New England and Mid-Atlantic FMPs. At its September 2013 meeting,
the Council considered NMFS's offer and encouraged NMFS to begin
development of the omnibus amendment. At this time, NMFS expects to
present a preliminary range of alternatives for the omnibus amendment
to the New England and Mid-Atlantic Councils in early 2014.
Comment 15: Several commenters claim: (1) The Council did identify
a funding source for the 100-percent observer coverage requirement; (2)
the Council's recommendation that the industry pay a maximum target of
$325 per day towards observer costs was only a target value; and (3)
the Council intended that the industry should pay whatever costs are
necessary to ensure 100-percent observer coverage.
Response: The amendment states that the preferred funding option
for the 100-percent observer coverage requirement is a target maximum
industry contribution of $325 per sea day. NMFS does not believe this
description indicates that the industry would be responsible for paying
whatever cost is necessary to fund 100-percent observer coverage, but
rather would target industry costs around $325.
There are two types of costs associated with observer coverage: (1)
Observer monitoring costs, such as observer salary and travel costs;
and (2) NMFS support and infrastructure costs, such as observer
training and data processing. Monitoring costs can either be paid by
industry or paid by NMFS, but they cannot legally be shared; NMFS
support and infrastructure costs can only be paid by NMFS. The
monitoring costs associated with an observer in the herring fishery are
higher than $325 per day. The FEIS for Amendment 5 analyzes an
alternative with the industry paying $325 per day toward observer
monitoring costs and paying $1,200 per day (estimated sum of observer
monitoring costs and NMFS support and infrastructure costs), but it
does not analyze a range of that would approximate total monitoring
costs.
The amendment neither describes nor analyzes an option where the
industry is responsible for paying all observer monitoring costs.
Therefore, Amendment 5 does not identify a funding source to cover the
costs of increased observer coverage, and the industry-funded observer
requirement is not sufficiently developed to approve in Amendment 5.
Comment 16: EAGs disagree with NMFS's statement in the proposed
rule that there is no legal mechanism to allow timely implementation of
the Council's preferred funding options, and point to successful
precedents set on the West Coast for cost-sharing between NMFS and the
industry.
Response: In Amendment 5, the 100-percent observer requirement is
coupled with a target maximum industry contribution of $325 per day.
The monitoring costs associated with an observer in the herring fishery
are higher than $325 per day. The Department of Commerce Office of
General Counsel has advised that cost-sharing of observer monitoring
costs between NMFS and the industry would violate the Anti-Deficiency
Act. NMFS may pay all the observer monitoring costs (e.g., NEFOP
observers) or the industry may pay all the observer monitoring costs
(e.g., Atlantic scallop fishery), but NMFS and the industry cannot both
pay towards observer monitoring costs. Therefore, there is no current
legal mechanism to allow cost-sharing of monitoring costs between NMFS
and the industry.
[[Page 8800]]
In the Pacific Groundfish Trawl Program, the industry is required
to pay all observer monitoring costs. However, as a way to transition
the industry to paying all observer monitoring costs, NMFS is
reimbursing the observer service providers a percentage of the observer
monitoring costs through a grant with the Pacific States Marine
Fisheries Commission. The level of reimbursement is contingent on
available NMFS funding and is expected to decrease over time, such
that, eventually, the industry will be paying all observer monitoring
costs. Subject to NMFS funding, this grant mechanism may also be a
temporary option to reimburse the herring industry for observer
monitoring costs. But this funding mechanism is very different than the
measure proposed in Amendment 5, and NMFS cannot modify the proposed
measure to make it consistent with the Anti-deficiency Act.
As described previously, NMFS has offered to be the technical lead
on an omnibus amendment to establish the administrative mechanism to
allow for industry-funded observer coverage in the New England and Mid-
Atlantic FMPs. At its September 2013 meeting, the Council considered
NMFS's offer and encouraged NMFS to begin development of the omnibus
amendment. NMFS expects to present a preliminary range of alternatives
for the omnibus amendment to the New England and Mid-Atlantic Councils
in early 2014.
Comment 17: Several commenters expressed concern that waivers are
not a viable alternative to 100-percent observer coverage and must not
be allowed to undermine monitoring of the herring fleet. They also felt
that NMFS must clarify the two-year review process for the 100-percent
observer coverage requirement to ensure coverage lapses do not occur
and that 100-percent observer coverage requires both vessels in a pair
trawl operation to carry an observer. Additionally, commenters
suggested NMFS should disapprove the ``grandfathering'' of states as
observer service providers and explicitly require that state service
providers meet NEFOP standards and protocols, including procedures for
data sharing and transparency.
Response: NMFS determined that the proposed measures for waivers,
the process to review the 100-percent observer coverage requirement,
and the measure authorizing states as observer service providers were
inseparable from the 100-percent observer coverage requirement.
Therefore, NMFS disapproved these proposed measures along with the 100-
percent observer coverage requirement. The Council will likely revisit
these issues when it reconsiders industry-funded observer coverage in
the omnibus amendment.
Comment 18: One commenter supports the disapproval of the 100-
percent observer coverage requirement for the herring fishery because
observer coverage in the herring fishery is already scientifically
determined by the SBRM and the costs associated with 100-percent
observer coverage far outweigh the benefits associated with additional
data.
Response: NMFS agrees that observer coverage in the herring fishery
is currently determined by the SBRM and is sufficient for monitoring
catch and bycatch in the herring fishery. Increasing observer coverage
in the herring fishery, through a future action, would provide
additional data. When the Council reconsiders increasing observer
coverage in the herring fishery, it will evaluate how the benefits of
the additional data compare to the economic impacts.
Comment 19: One commenter supports the proposed 100-percent
observer coverage requirement for the herring fishery, as well as
limiting the industry contribution to $325 per day. However, since
Amendment 5 is not sufficiently developed to establish an industry-
funded observer program, the commenter supports NMFS's recommendation
to continue the development of an industry-funded observer program in a
future action. Additionally, the commenter believes that measures
associated with the 100-percent observer requirement, such as waivers
and observer service provider requirements, are inseparable from the
100-percent observer coverage requirement and should not be approved at
this time.
Response: NMFS acknowledges the commenter's support for developing
an industry-funded observer program in a future action and, as
previously described, expects to present a preliminary range of
alternatives for the industry-funded observer coverage omnibus
amendment to the New England and Mid-Atlantic Councils in early 2014.
Comment 20: Several commenters disagree with language in the
proposed rule justifying the disapproval of the 100-percent observer
coverage requirement and slippage caps because Amendment 5 would expand
at-sea monitoring requirements in the groundfish closed areas.
Commenters believe that groundfish closed areas do warrant greater
protection, but robust monitoring of the herring fishery across the
fishery is critical as well.
Response: NMFS expressed concern in the proposed rule regarding the
legality of the 100-percent observer coverage requirement and slippage
caps, but also explained that those two measures were not the only
proposed measures in Amendment 5 that would improve monitoring and
reduce discarding in the herring fishery.
Analyses in the Amendment 5 FEIS suggest that midwater trawl
vessels are not catching significant amounts of groundfish either
inside or outside the groundfish closed areas. Additionally, the
majority of groundfish catch by midwater trawl vessels is haddock, and
the catch of haddock by midwater trawl vessels is already managed
through a haddock catch cap for the herring fishery. However, the
Council believes it is important to determine the extent and nature of
bycatch in the herring fishery. NMFS approved the 100-percent observer
coverage and increased sampling requirements for midwater trawl vessels
fishing in groundfish closed areas because it is a way to incrementally
increase observer coverage in the herring fishery and increase
opportunities for improved sampling of herring catch.
NMFS disapproved the 100-percent observer coverage requirement and
slippage caps for the herring fishery because NMFS believes those
measures are inconsistent with the MSA and other applicable law.
However, despite those disapprovals, the approved measures in Amendment
5, such as the prohibition on slippage and the released catch affidavit
requirement, and increased sampling requirements for midwater trawl
vessels fishing in groundfish closed areas, as well as the ongoing data
collection by NEFOP, still provide for improved monitoring in the
herring fishery, increased information regarding discards, and an
incentive to minimize the discarding of unsampled catch.
Comment 21: One EAG commented that Amendment 5 fails to consider
cumulative impacts of ongoing Federal actions, including a future
amendment to the Herring FMP to consider listing river herring and shad
as stocks in the fishery, Framework 48 to the Northeast Multispecies
FMP, and the Omnibus Essential Fish Habitat (EFH) Amendment.
Response: NMFS disagrees with the comment that Amendment 5 failed
to consider cumulative impacts of ongoing Federal actions. Section
6.6.4 of the FEIS describes the impacts of cumulative effects. That
section describes the future amendment to the Herring FMP to consider
listing river herring and shad as stocks in the fishery and the Omnibus
EFH Amendment and
[[Page 8801]]
discusses their potential under reasonably foreseeable future actions.
Because those actions are still being developed, it is not possible to
definitively analyze the impacts of those actions until the range of
alternatives for those amendments has been finalized. Frameworks 48 and
50 to the Multispecies FMP revised management of the groundfish
fishery. While groundfish regulations may affect the herring fishery,
not including Frameworks 48 (revised groundfish sector management) or
50 (revised groundfish harvest specifications) in the cumulative
effects section of the FEIS does not invalidate the entire cumulative
effects analysis, because those actions have minimal impact on
management of the herring fishery. Framework 48 revised the possible
list of exemptions for groundfish sectors, including access to
groundfish closed areas, but a future action would be required to
consider allowing sectors access to groundfish closed areas.
Additionally, Framework 50 reduced the amounts of the haddock catch
caps for the herring fishery, but that reduction is not expected to
significantly affect the herring fishery because it is minimal.
Comment 22: One EAG commented that Amendment 5 fails to analyze the
impacts of an industry-funded observer program.
Response: NMFS disagrees with the commenter's assertion that
Amendment 5 failed to analyze the impacts of an industry-funded
observer program. Section 6.2 of the FEIS analyzes the impacts of an
industry-funded observer program on herring, non-target species and
other fisheries, the physical environment and EFH, and fishery-related
businesses and communities. This analysis focuses on the biological
impacts of a range of observer coverage levels, the economic impacts of
the industry paying a range of costs, and the biological and economic
impacts of observer service provider requirements.
Comment 23: Several commenters urged NMFS to approve measures
prohibiting slippage, requiring a released catch affidavit, and
slippage caps to improve catch monitoring and reduce wasteful
discarding. They believe slippage caps, and the subsequent trip
termination provisions, are critical to the effectiveness of catch
monitoring and bycatch estimation in the herring fishery; are
consistent with the MSA and other applicable law; and are necessary to
meet requirements to end overfishing, minimize bycatch, and ensure
accountability. They believe the proposed caps on the number of
slippage events (i.e., 10 per gear type and herring management area)
are a carefully designed expansion of the regulations in place for
Closed Area I or the requirement to stop fishing in an area when the
sub-ACL has been harvested, and that the cap amounts are based on
existing data and set at levels high enough to allow the fleet to avoid
trip termination, while preventing unlimited slippage. Additionally,
several commenters believe the trip termination requirement that is in
effect once a slippage cap had been achieved is reasonable, safe, and
fair because vessels should return to port when experiencing mechanical
difficulties or have overloaded vessels.
Response: NMFS approved measures prohibiting slippage and requiring
a released catch affidavit for slippage events. NMFS expects that
prohibiting slippage will help reduce slippage events in the herring
fishery; thus, improving the quality of observer catch data, especially
data on bycatch species encountered in the herring fishery. NMFS also
expects the released catch affidavit to help provide insight into when
and why slippage occurs. Additionally, NMFS expects that the slippage
prohibition will help minimize bycatch, and bycatch mortality, to the
extent practicable in the herring fishery.
NMFS disapproved the proposed slippage caps, and the associated
trip termination requirement, because of concerns with the legality of
the slippage cap. Once a slippage cap has been met, vessels that slip
catch, even if the reason for slipping was safety or mechanical
failure, would be required to return to port. Vessels may continue
fishing following slippage events 1 through 10 but must return to port
following the 11th slippage event, regardless of the vessel's role in
the first 10 slippage events. Conversely, vessels responsible for
slippage events 1 through 10, may continue fishing after the 11th
slippage event provided they do not slip catch again. NMFS believes
this aspect of the measure is inequitable. Additionally, this measure
may result in a vessel operator having to choose between trip
termination and bringing catch aboard, despite a safety concern. For
these reasons, NMFS believes this measure is inconsistent with the MSA
National Standards 2 and 10 and disapproved it.
The measures to minimize slippage are based on the sampling
requirements for midwater trawl vessels fishing in Groundfish Closed
Area I. However, there are important differences between these
measures. Under the Closed Area I requirements, if midwater trawl
vessels slip catch, they are allowed to continue fishing, but they must
leave Closed Area I for the remainder of that trip. The requirement to
leave Closed Area I is less punitive than the proposed requirement to
return to port. Therefore, if the safety of bringing catch aboard is a
concern, leaving Closed Area I and continuing to fish would likely be
an easier decision for a vessel operator to make than the decision to
terminate the trip and return to port. Additionally, because the
consequences of slipping catch apply uniformly to all vessels that slip
catch under the Closed Area I requirements, or when a closure becomes
effective in an area where the ACL has been harvested, inequity among
the fleet is not an issue for the Closed Area I requirements or closure
measures, like NMFS believes it is for the proposed slippage caps.
Even though NMFS disapproved the slippage caps, the prohibition on
slippage, the released catch affidavit, the ongoing data collection by
NEFOP, and 100-percent observer coverage requirement for midwater trawl
vessels fishing in groundfish closed areas still allow for improved
monitoring in the herring fishery, increased information regarding
discards, and an incentive to minimize discards of unsampled catch.
Comment 24: NMFS received numerous comments from EAGs that the
analysis in the FEIS provides a reasonable basis for capping slippage
events at 10 slippage events by gear (midwater trawl, bottom trawl,
purse seine) and by herring management area. A number of commenters
also disagreed with NMFS's statements in the proposed rule that the
slippage caps may be punitive, unfair, unsafe, or not operationally
feasible.
Response: The Amendment 5 FEIS documents that the frequency of
slippage in the herring fishery is highly variable. During 2008-2011,
the number of slippage events per year ranged between 35 and 166. The
annual average number of slippage events by gear type during 2008,
2009, and 2011 were as follows: 4 by bottom trawl, 36 by purse seine,
and 34 by midwater trawl. Because the frequency of slippage was not
consistently analyzed in the FEIS by gear type and management area,
NMFS believes it difficult to use the analysis in the FEIS to select a
value for slippage caps by gear type and management area. For example,
based on the available data for past years, the proposed slippage cap
would not have affected bottom trawl vessels. On the other hand, it
might have affected vessels using purse seine and midwater gear if
slippage events were concentrated in one or two management areas. For
these reasons, NMFS believes the FEIS does not provide a strong
operational basis for
[[Page 8802]]
the slippage cap trigger (i.e., 10 slippage events by gear type and
area).
Throughout the development of Amendment 5, NMFS identified
potential concerns with the rationale supporting, and legality of, the
slippage caps. NMFS highlighted its concerns with these aspects of the
slippage cap in the proposed rule. As described in the response to the
previous comment, NMFS believes the inequitable nature of the slippage
cap, the potential for vessel operators having to choose between trip
termination and bringing catch aboard despite a safety concern, and the
potential for inequity among the fleet as a result of the slippage
caps, render the proposed slippage caps inconsistent with the MSA and
other applicable law. For these reasons, NMFS disapproved the proposed
slippage caps.
Comment 25: One commenter supports the approval of the slippage
prohibition and the requirement that a released catch affidavit be
completed if catch is slipped, but they do not support approval of the
slippage caps. The commenter does not recognize any biological need for
a slippage cap, and believes the caps would result in a vessels
operator being forced to choose between trip termination and bringing
catch aboard, despite a safety concern, which is inconsistent with
National Standard 10.
Response: NMFS acknowledges the commenter's support for approval of
the slippage prohibition and the released catch affidavit requirement.
NMFS agrees that making the vessel operator choose between trip
termination and bringing catch aboard despite a safety concern is
inconsistent with National Standard 10, and that the analysis in the
Amendment 5 FEIS does not provide compelling evidence for the need for
or trigger for slippage caps.
Comment 26: Two commenters believe the proposed measure to prohibit
slippage, with exceptions for safety concerns, mechanical issues, or
dogfish preventing pumping, is sufficient to discourage indiscriminate
discarding of catch and improve monitoring in the herring fishery. They
also believe the proposed slippage caps violates National Standard 2
(not based on the best scientific information available) and National
Standard 10 (lacks any serious consideration of safety) and should not
be approved.
Response: NMFS agrees that the slippage prohibition and the
associated released catch affidavit requirement are expected to provide
a strong incentive to minimize the discarding of unsampled and
increased information regarding discards. As described previously, NMFS
agrees with the commenter that the proposed slippage caps are
inconsistent with National Standards 2 and 10.
Comment 27: Several commenters believe that the Council's
modifications to the slippage cap, specifically the three-fold increase
to the trigger for the slippage cap (trigger increased from 10 events
to 10 events by gear type and area) and exempting slippage events due
to excess catch of spiny dogfish from counting against the caps,
addressed both the industry's and NMFS's concerns with safety and
fairness.
Response: One of NMFS' primary concerns with the proposed slippage
cap is safety. Even though the Council modified the slippage cap,
slippage events resulting from situations when (1) bringing catch
aboard compromises the safety of the vessel, and/or (2) mechanical
failure prevents the catch from being brought aboard, would have still
counted against the slippage cap. So while the Council's modification
to the slippage catch helped reduce the potential for a safety risk,
NMFS believes the proposed slippage cap is still inconsistent with
National Standard 10.
NMFS is also concerned with fairness of the proposed slippage cap
because the consequences to individual vessels of slipping catch have
the potential to be inequitably applied. Vessels may continue fishing
following slippage events 1 through 10, but must return to port
following the 11th slippage event, regardless of the vessel's role in
the first 10 slippage events. Conversely, vessels responsible for
slippage events 1 through 10 may continue fishing after the 11th
slippage event, provided they do not slip catch again. The Council's
modification to the amount of the trigger for the slippage cap does not
address NMFS's concern that the consequences of slipping catch do not
uniformly apply across the fleet to vessels that slip catch.
Comment 28: One commenter is concerned that there are inconsistent
and misleading statements in the FEIS regarding the need for additional
goals, objectives, and standards for an industry-funded observer
program. The commenter believes that Amendment 5 contains a
comprehensive set of goals and objectives for the fishery and its
monitoring program and that no further development of goals and
objectives are needed. Additionally, with respect to standards for
observer service providers, the commenter believes that the amendment
is clear that NEFOP standards would apply to observer service
providers.
Response: The Amendment 5 FEIS does contain goals and objectives
for an industry-funded observer program. However, NMFS determined that
the proposed measures for observer service provider requirements were
inseparable from the 100-percent observer coverage requirement.
Therefore, these proposed measures were disapproved along with the 100-
percent observer coverage requirement. The Council will likely revisit
these issues when it considers the industry-funded observer coverage
omnibus amendment.
Comment 29: One commenter believes that measures to improve at-sea
sampling proposed for limited access herring vessels should also be
applied to open access vessels (Categories D and E). Additionally, the
requirement for limited access vessels to provide an observer with
visual access to the codend or purse seine after pumping has ended is a
loophole to avoid bringing fish on aboard.
Response: When developing Amendment 5, the Council considered
applying measures to improve at-sea sampling, such as increased
observer coverage, requirements to help improve at-sea sampling, and
prohibiting slippage, to Category D vessels. However, because Category
D vessels catch such a small percentage of total herring harvest (less
than 2 percent), the Council recommended that compliance burden
associated with the new at-sea sampling requirements in Amendment 5
only apply to the vessels that harvest the majority of the herring.
NMFS can only approve or disapprove measure in Amendment 5; it cannot
change or modify measures in Amendment 5.
Regarding Category E vessels, Amendment 5 does not consider whether
Category E permits would be subject to the same catch monitoring
requirements as limited access vessels. When describing or analyzing
catch monitoring requirements, Amendment 5 does not describe extending
catch monitoring requirements for limited access vessels to Category E
vessels, nor does it analyze the impacts of catch monitoring
requirements on Category E vessels. Because the limited access catch
monitoring requirements were not discussed or analyzed in relation to
Category E vessels, this action does not extend those catch monitoring
requirements to Category E vessels.
Amendment 5 prohibits slippage, and NMFS expects that this
prohibition will reduce the discarding of unsampled catch. However, the
pumps and hoses that remove fish from the codend and bring it aboard
the vessel are not able to pump aboard every last fish out of the
codend or purse seine. If vessels are not able to bring codends/purse
seines aboard the vessel after pumping is completed, the requirement
that vessels
[[Page 8803]]
must provide the observer with visual access to codend/purse seine, and
any of its contents after pumping has ended is intended to help the
observer document what, if any, catch remains in the codend/purse seine
after pumping.
Comment 30: Several commenters support proposed measures requiring
limited access herring vessels to provide observer with: (1) Safe
sampling stations, (2) reasonable assistance, (3) notification of
pumping and sampling, (4) visual access to codend or purse seine, and
(5) estimated weight of catch and discard.
Response: NMFS recognizes the commenters' support for these
measures, and believes these measures will help improve monitoring in
the herring fishery.
Comment 31: One commenter believes that Amendment 5 should require
vessels pair trawling together to both carry observers, as this would
be a simple measure to prevent catch from being pumped to a vessels
without an observer and, therefore, not be available for sampling.
Response: NEFOP randomly assigns observers to herring vessels
consistent with SBRM coverage requirements to optimize sampling of the
herring fishery. If NEFOP desires to place observers on both vessels in
a pair trawl operation, then it can do so. The Council will be
considering a 100-percent observer coverage requirement for the herring
fishery in the observer-funding omnibus amendment. Until then, NEFOP
will continue to assign observers to herring vessels in order to best
meet SBRM requirements.
4. Comments on Measures To Address River Herring Interactions
Comment 32: Some commenters urged NMFS to promptly implement
Framework 3 to the Herring FMP, which would develop and implement
herring and shad catch caps. They disagree with NMFS's statement in the
proposed rule that a catch cap developed in a framework cannot be
implemented prior to the implementation of Amendment 5, stating that
the authority to set incidental catch caps in the herring fishery was
established through Amendment 1 to the Herring FMP.
Response: Amendment 1 identified catch caps as management measures
that could be implemented via a framework or the specifications
process, with a focus on a haddock catch cap for the herring fishery.
Amendment 5 contains a specific alternative that considers implementing
a river herring catch cap through a framework or the specifications
process, while Amendment 1 does not specifically consider or analyze
bycatch measures or catch caps for river herring. On the basis of the
explicit consideration of a river herring catch cap and the
accompanying analysis in Amendment 5, NMFS advised the Council that it
would be more appropriate to consider a river herring catch cap in a
framework subsequent to the implementation of Amendment 5.
While Amendment 5 contains preliminary analysis of a river herring
catch cap, additional development of a range of alternatives (e.g.,
amount of cap, seasonality of cap, consequences of harvesting cap) and
the environmental impacts (e.g., biological, economic) of a river
herring catch cap is necessary prior to implementation. Therefore, it
is more appropriate to consider implementing a river herring catch cap
through a framework, rather than through the specifications.
At its June 2013 meeting, the Council discussed the development of
river herring catch caps in Framework 3 to the Herring FMP. The Council
considered establishing catch caps by area and gear, as well as
establishing catch caps for both river herring and shad. While
Amendment 5 does not explicitly consider catch caps for shad, river
herring and shad are closely related species and the nature of their
encounters with the herring fishery are similar. Therefore,
implementing a catch cap that applies to both river herring and shad is
likely a natural extension of the catch cap considered in Amendment 5,
and Framework 3 would specifically evaluate the technical merits of
developing a shad catch cap for the herring fishery. At its September
2013 meeting, the Council took final action on Framework 3 and
recommended establishing river herring and shad catch caps for midwater
and bottom trawl gear in the herring fishery. Framework 3, if approved,
is expected to be implemented in the spring or summer of 2014.
Comment 33: The Council clarified that the ability to establish
catch caps for river herring was intended to also apply to shad. The
FEIS for Amendment 5 contains life history, stock status, and state
fishery information for shad, as well as analysis on the co-occurrence
of river herring and shad and the potential impacts of Amendment 5
measures to address fishery interactions with both river herring and
shad.
Response: Given the similar life histories of river herring and
shad, and that both are encountered in the herring fishery,
establishing catch caps would apply to both river herring and shad is
likely a natural extension of the catch cap considered in Amendment 5.
However, Amendment 5 was not explicit that river herring catch caps
would apply to shad; therefore, the analysis in Framework 3 will need
to more fully explain and support establishing catch caps for both
river herring and shad.
Comment 34: Several commenters expressed support for establishing
catch caps for river herring and shad catch caps as quickly as
possible. Additionally, some stressed that NMFS must assist the Council
in developing and implementing these catch caps as they are the only
regulatory measure in Amendment 5 that will satisfy the MSA's
requirement to minimize bycatch to the extent practicable and address
the Court-ordered remedy for Amendment 4 to the Herring FMP.
Response: NMFS is supporting the Council in its efforts to
establish river herring/shad catch caps for the Atlantic herring
fishery. The Council developed Framework 3 to consider establishing
river herring and shad catch caps for the herring fishery. The Council
discussed a range of catch cap alternatives on June 18, 2013, and voted
to adopt measures in Framework 3 on September 26, 2013. The Council
recommended a combined river herring/shad catch cap (based on the
median of historical catch) for the herring fishery, specifically for
mid-water trawl gear in the Gulf of Maine, mid-water trawl gear in the
Cape Cod area, and for both bottom and mid-water trawl gears in
Southern New England. Council staff is currently finalizing Framework
3, and its accompanying environmental assessment, and submitted it to
NMFS for review in January 2014. If approved, NMFS expects to implement
river herring/shad catch caps for the herring fishery in 2014.
Based on the ASMFC's recent river herring and shad assessments,
data are not robust enough to determine a biologically based river
herring/shad catch cap and/or assess the potential effects on river
herring/shad populations of such a catch cap on a coast-wide scale.
However, both the Council and NMFS believe catch caps would provide a
strong incentive for the herring industry to continue avoiding river
herring and shad and reduce river herring and shad bycatch to the
extent practicable.
NMFS disagrees that the river herring/shad catch caps are the only
measure in Amendment 5 that will satisfy the MSA's requirement to
minimize bycatch to the extent practicable. Rather, Amendment 5
implements several measures that address bycatch in the herring
fishery: (1) Prohibiting catch from being discarded prior to sampling
[[Page 8804]]
by an at-sea observer (known as slippage), with exceptions for safety
concerns, mechanical failure, and spiny dogfish preventing catch from
being pumped aboard the vessel, and requiring a released catch
affidavit to be completed for each slippage event; (2) expanding at-sea
sampling requirements for all midwater trawl vessels fishing in
groundfish closed areas; (3) establishing a new open access permit to
reduce the potential for the regulatory discarding of herring in the
mackerel fishery; (4) establishing the ability to consider a river
herring catch cap in a future framework; (5) establishing River Herring
Monitoring/Avoidance Areas; (6) evaluating the ongoing bycatch
avoidance program investigation of providing real-time, cost-effective
information on river herring distribution and fishery encounters in
River Herring Monitoring/Avoidance Areas; and (7) expanding and adding
reporting and sampling requirements designed to improve data collection
methods, data sources, and applications of data to better determine the
amount, type, disposition of bycatch. NMFS believes these measures
provide incentives for bycatch avoidance and will allow NMFS to gather
more information that may provide a basis for future bycatch avoidance
or bycatch mortality reduction measures. These measures are supported
by sufficient analysis and consideration of the best available
scientific information and represent the most practicable bycatch
measures for the Herring FMP based on this information at this time.
Comment 35: Several commenters urged disapproval of the voluntary
program investigating river herring distribution and fishery encounters
because they believe as a voluntary program, it has no place in a
regulatory action and will not satisfy the MSA's requirement to
minimize bycatch to the extent practicable.
Response: NMFS disagrees with the commenter's assertion that the
program has no place in a regulatory action and will not satisfy the
MSA's requirement to minimize bycatch to the extent practicable. As
described previously, Amendment 5 contains several measures that
address bycatch in the herring fishery. While the voluntary program for
river herring monitoring and avoidance does not currently include
regulatory requirements, NMFS believes the program, along with the
Council's formal evaluation of the program, has the potential to help
vessels avoid river herring during the fishing season and to gather
information that may help predict and prevent future interactions.
Additionally, as described previously, NMFS believes Amendment 5
establishes several measures that minimize bycatch, provide incentives
for bycatch avoidance, and will allow NMFS to gather more information
that may provide a basis for future bycatch avoidance or bycatch
mortality reduction measures. These measures are supported by
sufficient analysis and consideration of the best available scientific
information and represent the most practicable bycatch measures for the
Herring FMP based on this information at this time.
Comment 36: Several commenters support: Amendment 5 establishing
River Herring Monitoring/Avoidance Areas, although some caution that
this measure does not satisfy the MSA National Standard 9 requirements;
Amendment 5 establishing River Herring Protected Areas; and the
approval of a prohibition on fishing in River Herring Monitoring/
Avoidance Areas without a NMFS-approved observer.
Response: Amendment 5 establishes River Herring Monitoring/
Avoidance Areas and NMFS acknowledges the commenters' support for that
measure. As described previously, Amendment 5 contains several
measures, including establishing River Herring Monitoring/Avoidance
Areas, that address the MSA's requirement to minimize bycatch to the
extent practicable.
Amendment 5, as adopted by the Council, does not propose
establishing River Herring Protection Areas, instead it proposes
establishing River Herring Monitoring/Avoidance Areas. The Council
considered establishing River Herring Protection Areas but instead
choose to recommend River Herring Monitoring/Avoidance Areas and the
development of a river herring catch cap to advance the goal of river
herring monitoring by providing the industry with incentives to develop
their own methods to minimizing river herring bycatch. Because NMFS
cannot approve and implement measures that are not proposed in
Amendment 5, it cannot approve and implement River Herring Protection
Areas.
The proposed measure to require vessels to carry a NMFS-approved
observer when fishing in the River Herring Monitoring/Avoidance Areas
was part of the Suite of measures proposing to require 100-percent
observer coverage and an industry contribution of $325 per day on
Category A and B vessels. As described previously, NMFS disapproved
that proposed 100-percent observer coverage measure because the measure
was not sufficiently developed to avoid conflicting with the
Antideficiency Act and amounted to an unfunded mandate. NMFS believes
the Suite of proposed measures associated with the 100-percent observer
coverage requirement are inseparable from the 100-percent observer
coverage requirement; therefore, NMFS had to disapprove those measures
too. The Council will likely revisit observer coverage in the herring
fishery when it considers the industry-funded observer coverage omnibus
amendment.
Comment 37: One commenter supports the approval of the ongoing,
voluntary program investigating river herring encounters in the herring
fishery so that the fleet can be alerted to areas with concentrations
of river herring in real time and move away from those areas. Some
commenters support the voluntary program because it helps address the
requirement to minimize bycatch to the extent practicable. One
commenter does not support establishing River Herring Monitoring/
Avoidance Areas because they believe the measure conflicts with the
ongoing avoidance program and that the measure may be used to prohibit
herring fishing in certain areas.
Response: NMFS agrees with the commenter who stated that the
ongoing program can help the fleet recognize and avoid areas with high
concentrations of river herring, thereby helping to minimize bycatch in
the herring fishery. This action allows for a comprehensive Council
evaluation of the ongoing, voluntary river herring avoidance program.
As part of that evaluation, the Council can consider adjustments to the
River Herring Monitoring/Avoidance Areas and whether measures
associated with the River Herring Monitoring/Avoidance Areas, or the
areas themselves, conflict with the river herring avoidance program.
Comment 38: Two commenters expressed concern with establishing
River Herring Monitoring/Avoidance Areas. Their concerns were based on
the ability to obtain/fund increased observer coverage in these areas
and the potential for redundancy with river herring catch caps. One
commenter recommended that coverage levels for these areas not be
established in this action and that NMFS delay in defining these areas
until river herring catch caps are established.
Response: NMFS believes that River Herring Monitoring/Avoidance
Areas and the river herring catch caps serve complementary purposes in
management of the herring fishery and are not redundant. However,
modifications to both River Herring
[[Page 8805]]
Monitoring/Avoidance Areas and river herring catch caps can be
considered through the specifications and/or a framework adjustment. If
these measures become duplicative, they can be modified in a future
action.
Because the proposed requirement for observer coverage in River
Herring Monitoring/Avoidance Areas is inseparable from the disapproved
100-percent observer coverage measure, no required level of observer
coverage for River Herring Monitoring/Avoidance Areas is established in
this action. The Council will likely revisit observer coverage in the
herring fishery when it considers the industry-funded observer coverage
omnibus amendment.
Comment 39: One commenter supports the measure that would establish
a river herring catch cap through a future framework, and believes that
establishing a catch cap may improve the performance of the voluntary
river herring avoidance program.
Response: This action allows a river herring catch cap to be
established through a future framework. Establishing a catch cap may
improve the performance of the river herring avoidance program by
providing a strong incentive to avoid and reduce river herring bycatch
to the extent practicable. The Council is expected to evaluate the
interaction between catch caps and the avoidance program when it
formally evaluates the avoidance program.
Comment 40: One commenter supports Amendment 5 establishing a
mechanism to consider regulatory requirements for a byatch avoidance
strategy in a future action.
Response: This action establishes a mechanism to develop, evaluate,
and consider regulatory requirements for a river herring bycatch
avoidance stategy. Additionally, this action establishes River Herring
Monitoring/Avoidance Areas that will likely help support any future
considerations of river herring bycatch avoidance strategies.
5. Comments on Measures To Address Midwater Trawl Access to Groundfish
Closed Areas
Comment 41: Many commenters recommended that NMFS approve measures
expanding the at-sea monitoring of midwater trawl vessels fishing in
groundfish closed areas, including 100-percent observer coverage and
Closed Area I sampling requirements, to improve catch monitoring in the
herring fishery. Additionally, some commenters recommended that
expanded at-sea monitoring requirements for midwater trawl vessels
fishing in groundfish closed areas should also apply to vessels with
the new Areas 2/3 Open Access Permit (Category E).
Response: This action expands at-sea monitoring requirements to all
herring vessels fishing with midwater trawl gear in groundfish closed
areas, regardless of permit type, consistent with the commenters'
recommendations.
Comment 42: One EAG urges NMFS to keep at-sea monitoring
requirements in place for midwater trawl vessels fishing in the
groundfish closed areas under the Omnibus EFH Amendment 2 or any
changes to the groundfish closed areas under the Northeast Multispecies
FMP, unless and until such actions explicitly change the herring vessel
access requirements and fully analyzes the impacts of those changes.
Response: The Council's intent for measures specifying midwater
trawl access to groundfish closed areas was that those measures would
be dynamic and evolve as requirements and restrictions in the
groundfish closed areas evolved. If other Council actions modify
requirements and/or restrictions for groundfish closed areas, those
actions will consider modifications to the measures in this action
implementing requirements for midwater trawl access to groundfish
closed areas. If the Council considers changes to the measures
implemented in this action, the action considering the changes would
fully analyze the impacts of those changes.
Comment 43: Some commenters believe the relatively low amount of
groundfish bycatch in groundfish closed areas does not warrant
expanding at-sea sampling requirements for midwater trawlers.
Commenters recognize that midwater trawl vessels do catch haddock, but
they believe the catch of haddock in the herring fishery is already
managed through a haddock catch cap. Additionally, one commenter is
concerned that NMFS does not have adequate resources to place observers
on all trips to Groundfish Closed Area 1, that expanding those at-sea
monitoring requirements to all groundfish closed areas would further
dilute available funds, and that it would be impracticable for NMFS to
implement additional observer coverage requirements without additional
funding.
Response: The Council and NMFS both believe it is important to
better understand the nature of catch, including directed catch,
bycatch, and incidental catch, in the herring fishery. As a way to
improve that understanding, this action incrementally expands the at-
sea monitoring requirements, including a 100-percent observer coverage
requirement, to midwater trawl vessels fishing in groundfish closed
areas.
Expanding the Closed Area I sampling requirement to midwater trawl
vessels fishing in groundfish closed areas provides a greater source of
information regarding the nature and extent of incidental catch and
bycatch in the herring fishery. This measure also addresses perceived
inequities expressed by many stakeholders during development of
Amendment 5 regarding allowing gear that is capable of catching
groundfish into the groundfish closed areas. This action still allows
the midwater trawl fishery to operate in the groundfish closed areas,
but ensures that monitoring and sampling are maximized, based on
measures that already have proven to be effective in Closed Area I.
Under current practice, as well as under the proposed revisions to
the SBRM that are being developed, the NEFSC would allocate all
existing and specifically identified observer funding to support SBRM
observer coverage. Therefore, herring vessels would be assigned
observers based on SBRM coverage, including trips by midwater trawl
vessels into the groundfish closed areas. All trips by midwater trawl
vessels into the groundfish closed areas would have observer coverage,
thereby increasing observer coverage in the groundfish closed areas.
But until there is additional funding available, the number of trips
midwater trawl vessels can make into the groundfish closed areas would
be limited by SBRM funding. Additional observer coverage specifically
for midwater trawl trips into the groundfish closed areas would be
possible after SBRM monitoring is fully funded or if funds are
specifically appropriated for such trips.
If a midwater trawl vessel cannot fish in the groundfish closed
areas on a particular trip because an observer is not assigned to that
trip, any negative economic impact to that vessel is expected to be
minimal. Analyses in the FEIS indicate that less than 10-percent of
herring fishing effort occurs in the groundfish closed areas and less
than 13-percent of the annual herring revenue comes from trips into the
groundfish closed areas. Midwater trawl vessels will still have access
to the groundfish closed areas during SBRM covered trips, even if there
are less SBRM covered trips than in years past. Additionally, midwater
trawl vessels can fish outside the groundfish closed areas without an
observer.
NMFS agrees that analyses in the Amendment 5 FEIS suggest that
[[Page 8806]]
midwater trawl vessels are not incidentally catching significant
amounts of groundfish either inside or outside the groundfish closed
areas. Additionally, NMFS agrees that the majority of groundfish catch
by midwater trawl vessels is haddock, and the catch of haddock by
midwater trawl vessels is already managed through a haddock catch cap.
However, this action expands at-sea monitoring requirements to midwater
trawl vessels fishing in all groundfish closed areas because it will
allow the midwater trawl fishery to continue to operate in the
groundfish closed areas, while ensuring that opportunities for
monitoring and sampling are maximized.
Comment 44: Several commenters urged disapproval of the measure
expanding at-sea sampling of midwater trawl vessels fishing in
groundfish closed areas and, instead, recommended that the use of
midwater trawl gear in groundfish closed areas be prohibited.
Response: As described previously, this action expands at-sea
monitoring requirements to midwater trawl vessels fishing in all
groundfish closed areas because it will ensure that opportunities for
monitoring and sampling are maximized while still allowing the midwater
trawl fishery to continue to operate in the closed areas. Because a
measure to prohibit midwater trawl gear in groundfish closed areas was
not recommended by the Council as part of Amendment 5, it cannot be
implemented as part of this action.
6. Comments on Adjustments to List of Measures Modified Through
Framework Adjustments or Specifications
Comment 45: Two EAGs commented that NMFS should modify the list of
items that could be developed through a framework or specifications
package to exclude observer coverage levels, stating that modifying
observer coverage levels through a framework or the specifications was
not contemplated in the DEIS for Amendment 5.
Response: NMFS believes the DEIS does contemplate modifying
observer coverage levels through a framework adjustment. Section 3.5 of
the DEIS for Amendment 5 explained that, if any new management measures
are adopted in Amendment 5, changes to those measures and related
adjustments would be added to the list of measures that can be
implemented through a framework adjustment to the Herring FMP in the
future. Additionally, the DEIS explained that the public should
consider whether or not any of the new measures proposed in Amendment 5
should be allowed to be modified in the future through a framework
adjustment. The DEIS explained that for the FEIS, the list of measures
would be based on the management measures adopted by the Council.
As part of Amendment 5, the Council adopted two measures specifying
observer coverage levels, the 100-percent observer coverage requirement
for Category A and B vessels, and the 100-percent observer coverage
requirement for midwater trawl vessels fishing in the groundfish closed
areas. Because the Council adopted observer coverage levels as part of
Amendment 5, observer coverage levels were added to the list of
measures in the FEIS that could be modified through a framework
adjustment when appropriate.
While NMFS approved, and this action implements, the 100-percent
observer coverage requirement for midwater trawl vessels fishing in the
groundfish closed areas, NMFS disapproved the 100-percent observer
coverage requirement for Category A and B vessels. The Council is
expected to revisit the issue of specifying observer coverage levels
outside of groundfish closed areas in the NMFS-led observer-funding
omnibus amendment starting in January 2014. Therefore, at this time,
NMFS concurs with the commenters, and believes it is not appropriate to
include observer coverage levels outside of groundfish closed areas in
the list of measures that could be modified through a framework.
Comment 46: One commenter supports modifying the list of measures
that could be modified through a framework to only include: (1) Changes
to vessel trip notification and declaration requirements; (2)
provisions for river herring bycatch avoidance program; and (3) river
herring catch caps. They believe these measures should be changed
through a framework, and not the specifications, because the framework
process is a more deliberative way to make substantive changes to
management of the herring fishery.
Response: This action allows for modifications to vessel trip
notification and declaration requirements, provisions for the river
herring bycatch avoidance program, and river herring catch caps to be
made through a framework when appropriate. Additionally, it allows for
modifications to river herring catch caps to be made through the
specifications process. The ability to modify river herring catch caps,
especially the amount of catch caps, through the specifications process
is necessary to ensure catch caps are based on the best available data
and that catch caps are revisited and modified, if necessary, as
frequently as other specifications for the herring fishery.
Changes From the Proposed Rule
The proposed rule for Amendment 5 contained all the measures in the
amendment that were adopted by the Council in June 2012. As described
previously, the proposed rule highlighted NMFS's utility and legal
concerns with three measures adopted by the Council. NMFS disapproved
the 100-percent observer coverage measure coupled with a $325 per day
industry contribution, slippage cap, and dealer reporting requirements,
thus, the regulatory requirements associated with those three measures
are not included in this final rule. Specifically, the following
sections from the proposed rule have been removed: Sec. Sec.
648.11(h), 648.11(l)(5), 648.14 (r)(2)(xiii), 648.200(g)(5),
648.203(c), and 648.206(b)(33) and (b)(34) and are not being
implemented in this rule. Additionally, proposed Sec. 648.206(b)(32)
was revised to remove provisions related to the slippage cap.
The proposed rule stated that herring carriers were only permitted
to transport herring. This final rule clarifies that requirement and
specifies that herring carriers are permitted to transport herring and
certain groundfish species, including haddock and up to 100 lb (45 kg)
of other regulated groundfish species, consistent with current
groundfish regulations. Additionally, to ensure consistency with other
Northeast Region VMS requirements, the final rule clarifies that once a
vessel declares a herring carrier trip via VMS, it is bound to VMS
operating requirements for the remainder of the fishing year.
To avoid confusion, this final rule standardizes the title of the
affidavit required when catch is slipped by midwater trawl vessels
fishing in groundfish closed areas in both the Northeast multispecies
and herring regulations. It is now called a released catch affidavit.
Lastly, this final rule clarifies that (1) Fish that cannot be pumped
and remain in the codend or seine at the end of pumping operations are
considered to be operational discards and not slippage and (2) discards
that occur after the catch is brought on board and sorted are also not
considered slippage.
Classification
The Administrator, Northeast Region, NMFS, determined that
Amendment 5 to the Herring FMP is necessary for the conservation and
management of the herring fishery and that it is consistent with the
MSA and other applicable laws.
[[Page 8807]]
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Council prepared a FEIS for Amendment 5; a notice of
availability was published on April 26, 2013 (78 FR 24743). The FEIS
describes the impacts of the proposed measures on the environment.
Revisions to fishery management program provisions, including
permitting provisions, vessel notification requirements, and measures
to address carrier vessels and transfers at-sea are expected to improve
catch monitoring in the herring fishery, with positive biological
impacts on herring and minimal negative economic impacts on fishery
participants. Measures to improve at sea-sampling by observers and
minimize the discarding of catch before it has been sampled by
observers are also expected to improve catch monitoring and to have
positive biological impacts on herring. The economic impacts on fishery
participants of these measures are varied, but negative economic
impacts are expected to be moderate compared to status quo. Measures to
address bycatch are expected to have positive biological impacts and
moderate negative economic impacts on fishery participants. Lastly, all
measures are expected to have positive biological impacts on non-target
species and neutral impacts on habitat. In partially approving
Amendment 5 on July 18, 2013, NMFS issued a record of decision (ROD)
identifying the selected alternatives. A copy of the ROD is available
from NMFS (see ADDRESSES).
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant issues raised by public comments in response
to the IRFA, NMFS's responses to those comments, and a summary of the
analyses to support this action. A copy of this analysis is available
from the Council or NMFS (see ADDRESSES) or via the Internet at http://www.nero.noaa.gov.
Statement of Need
This action helps improve monitoring and addresses bycatch issues
in the herring fishery through responsible management. A description of
the action, why it was considered, and the legal authority for the
action is contained elsewhere in this preamble and is not repeated
here.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
NMFS received 8,163 comments during the comment periods on the NOA
and proposed rule. Those comments, and NMFS' responses, are contained
elsewhere in this preamble and are not repeated here. NMFS did not
receive any comments focused solely on the economic impacts of this
rule.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply
The Office of Advocacy at the Small Business Administration (SBA)
suggests two criteria to consider in determining the significance of
regulatory impacts: Disproportionality and profitability. The
disproportionality criterion compares the effects of the regulatory
action on small versus large entities (using the SBA-approved size
definition of ``small entity''), not the difference between segments of
small entities. The changes in profits, costs, and net revenues due to
Amendment 5 are not expected to be disproportional for small versus
large entities, as the proposed action will affect all entities, large
and small, in a similar manner. Therefore, this action is not expected
to have disproportionate impacts or place a substantial number of small
entities at a competitive disadvantage relative to large entities.
In 2011, there were 2,240 vessels with herring permits. Of these
vessels, 91 vessels with limited access herring permits (Category A, B,
and C) and 2,149 vessels with open access herring permits (Category D)
would be considered small entities for Regulatory Flexibility Act (RFA)
purposes. Category D vessels participate incidentally in the herring
fishery and would only be subject to the proposed regulatory
definitions and the requirements for midwater trawl vessels fishing in
the Groundfish Closed Areas. The regulatory definitions are primarily
administrative in nature; however they may reduce confusion and/or
errors related to catch reporting. Additionally, currently, there are
no Category D vessels that fish with midwater trawl gear. Therefore,
this RFA analysis is focused on the 91 vessels with limited access
herring permits.
Herring vessels can work cooperatively in temporary, short-term
partnerships for pair trawling or seining activities, and vessels may
also be affiliated with processing plants. NMFS currently has no data
regarding vertical integration or ownership. Therefore, for the
purposes of this RFA analysis, the entity in the harvesting sector is
the individual vessel.
Subsequent to completing the IRFA for Amendment 5, on June 20,
2013, the SBA issued a final rule revising the small business size
standards for several industries effective July 22, 2013 (78 FR 37398,
June 20, 2013). The rule increased the size standard for Finfish
Fishing from $4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0
million, and Other Marine Fishing from $4.0 to $7.0 million. Therefore,
this FRFA contains updated permit information consistent with SBA's
revised size standards. NMFS reviewed the analyses prepared for this
action in light of the new size standards. Under the former, lower size
standards, 91 entities subject to this action were considered small
entities. These entities would all continue to be considered small
under the new size standards. However, using more recent permit
information, the number of entities that would be considered small
under SBA's revised size standards decreased between 2011 and 2012.
Based on more recent permit information, NMFS has now identified 70
entities (compared to 91 in the original analysis) that held at least
one limited access herring permit (category A, B, or C) in 2012. Many
of these entities were active in both finfish fishing and shellfish
fishing industries. In order to make a determination of size, fishing
entities are first classified as participants in either the Finfish
Fishing or Shellfish Fishing industry. If an entity derives more than
50 percent of its gross revenues from shellfish fishing, the $5.0-
million standard for total revenues is applied. If an entity derives
more than 50 percent of its gross revenues from finfish fishing, the
$19.0-million standard for total revenues is applied. Based on the
revised economic criteria, as well as updated permit and revenue data,
there are 7 large shellfish fishing entities to which this final rule
will apply and 63 small entities to which this final rule will apply.
Of the 63 small entities, 39 reported no revenue from herring
fishing during 2012. For the 24 small entities that were active in the
herring fishery, median gross revenues were approximately $872,000, and
median revenues from the herring fishery were approximately $219,000.
There is large variation in the importance of herring fishing for these
small entities. Eight of these 24 active small entities derive less
than 5 percent of their total fishing revenue from
[[Page 8808]]
herring. Seven of these 24 active small entities derive more than 95
percent of their total fishing revenue from herring.
Amendment 5 establishes measures to improve catch reporting and
address bycatch. These measures primarily affect limited access herring
vessels, the component of the herring fleet that harvests approximately
98-percent of the available herring harvest. After considering the new
permit information and the new SBA size standards, NMFS still believes
that the proposed action would affect all entities, whether large or
small, in a similar manner because measures in Amendment 5 apply
similarly across the limited access herring fleet.
Section 5.0 in Amendment 5 describes the vessels, key ports, and
revenue information for the herring fishery; therefore, that
information is not repeated here.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
Minimizing Significant Economic Impacts on Small Entities
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA) which have been approved
by the Office of Management and Budget (OMB) under control number 0648-
0674. The new requirements, which are described in detail in the
preamble, were approved as a new collection. Amendment 5 also removes a
VMS power-down exemption for herring vessels and a catch reporting
requirement for herring carrier vessels. Amendment 5 prohibits herring
vessels from powering-down their VMS units in port, unless specifically
authorized by the NMFS RA. The existing power-down exemption was
approved under OMB Control Number 0648-0202 and, upon renewal, will be
removed from that information collection. Additionally, Amendment 5
removes the existing weekly VTR requirement for herring carrier
vessels. That requirement was approved under OMB Control Number 0648-
0212 and, upon renewal, will be removed from that information
collection. The action does not duplicate, overlap, or conflict with
any other Federal rules.
Amendment 5 establishes two new herring permits. The application
process to obtain a new Areas 2/3 Open Access Permit takes an estimated
1 min to complete, and costs $0.46 to mail. The new Areas 2/3 Open
Access Herring Permit requires the vessel to purchase and maintain a
VMS. Because other Northeast Federal permits require vessels to
maintain a VMS, it is estimated that only six vessels that were issued
the current open access permit, which is re-named the All Areas Open
Access Permit as part of this action, do not already have a VMS. The
average cost of purchasing and installing a VMS is $3,400, the VMS
certification form takes an estimated 5 min to complete and costs $0.46
to mail, and the call to confirm a VMS unit takes an estimated 5 min to
complete and costs $1. The average cost of maintaining a VMS is $600
per year. Northeast regulations require VMS activity declarations and
automated polling of VMS units to collect position data. Each activity
declaration takes an estimated 5 min to complete and costs $0.50 to
transmit. If a vessel takes an average of 5 trips per year, the annual
burden estimate for the activity declarations would be 25 min and $3.
Each automated polling transmission costs $0.06, and a vessel is polled
once per hour every day of the year. The annual estimated cost
associated with polling is $526. In summary, the total annual burden
for a vessel to purchase and maintain a VMS is estimated to be 35 min
and $4,530.
Amendment 5 also requires that vessels issued the new Areas 2/3
Open Access Herring Permit comply with existing catch reporting
requirements for Category C vessels--specifically the submission of
daily VMS reports and weekly VTRs. The cost of transmitting a catch
report via VMS is $0.60 per transmission and it is estimated to take 5
min to complete. If a vessel takes an average of 5 trips per year and
each trip lasts an average of 2 days, the total annual burden of daily
VMS reporting for a vessel is estimated to be 50 min and $6. Category D
vessels are currently required to submit weekly VTRs, so there will be
no additional burden associated with VTRs for those vessels. If a
vessel without a Category D permit was issued the new Areas 2/3 Open
Access Herring Permit, the annual burden estimate of VTR submissions is
$18. This cost was calculated by multiplying 40 (52 weeks in a year
minus 12 (number of monthly reports)) by $0.46 to equal $18. The VTR is
estimated to take 5 min to complete. Therefore, the total annual burden
of weekly VTRs is estimated to be $18, and 3 hr and 20 min.
This action establishes new reporting burdens associated with
obtaining an At-Sea Herring Dealer Permit. The new herring dealer
permit is for herring carriers that sell fish. Historically,
approximately 25 vessels per year have been issued an LOA to act a
herring carrier. The application for an At-Sea Herring Dealer Permit
would take an estimated 15 min to complete and $0.46 to mail. The
annual burden to renew an At-Sea Herring Dealer Permit is estimated to
be 5 min to complete the renewal, and $0.46 to mail the renewal.
Dealers are required to submit weekly reports via the internet. These
reports are estimated to take 15 min to complete; therefore, the annual
burden associated with dealer reporting is 13 hr. The cost for this
information collection is related to internet access. The 25 vessels
that may obtain the new At-Sea Herring Dealer Permit may not already be
accessing the internet for other reasons/requirements and would have to
obtain internet access. Internet access is required for the submission
of weekly dealer reports. Operating costs consist of internet access,
available through either dial-up or cable modem, with an average annual
cost of $652 per year. Therefore, the annual cost burden associated
with dealer reporting is estimated to be $652.
Amendment 5 expands the number of herring vessels required to
submit a VMS pre-landing notification and adds a gear declaration to
the existing VMS activity declaration requirement. A subset of herring
vessels are currently required to notify NMFS Office of Law Enforcement
(OLE) via VMS at least 6 hr prior to landing, and this action expands
that requirement to all limited access herring vessels, vessels issued
the new Areas 2/3 Open Access Herring Permit (Category E), and herring
carrier vessels. It is estimated that Amendment 5 will require an
additional 51 Herring Category C vessels, 80 Herring Category E
vessels, and 25 herring carriers to submit VMS pre-landing
notification. Each VMS pre-landing notification is estimated to take 5
min to complete and costs $1. Category C vessels are estimated to take
an average of 13 trips per year, so the total annual burden for a
Category C vessel making VMS pre-landing notifications is estimated to
be 65 min and $13. The new Category E vessels will take an estimated 5
trips per year, so the total burden for a Category E vessel making VMS
pre-landing notifications is estimated to be 25 min and $5. Herring
carriers are estimated to take an average of 4 trips per year, so the
total annual burden for a herring carrier making VMS pre-landing
notifications is estimated to be 20 min and $4. The gear declaration
applies to limited access herring vessels. There is no additional
reporting burden associated with the gear declaration because it is
only adding an additional field to the existing VMS activity
declaration requirement, approved under OMB 0648-0202.
Amendment 5 allows vessels to choose between enrolling as a herring
[[Page 8809]]
carrier with an LOA or declaring a herring carrier trip via VMS.
Vessels may declare a herring carrier trip via VMS, if they already
have and maintain a VMS, or continue to request an LOA. There is no
additional reporting burden associated with this measure because both
the LOA and the VMS activity declaration are existing requirements for
herring vessels.
Amendment 5 increases the reporting burden for measures designed to
improve at-sea sampling by NMFS-approved observers. A subset of herring
vessels are currently required to notify NMFS to request an observer,
and this action expands that requirement to all limited access herring
vessels, vessels issued the new Areas 2/3 Open Access Herring Permit
(Category E), and herring carrier vessels. This pre-trip observer
notification requirement is estimated to affect 156 additional vessels.
Vessels will be required to call NMFS to request an observer at least
48 hr prior to beginning a herring trip. The phone call is estimated to
take 5 min to complete and is free. If a vessel has already contacted
NMFS to request an observer and then decides to cancel that fishing
trip, Amendment 5 requires that vessel to notify NMFS of the trip
cancelation. The call to notify NMFS of a cancelled trip is estimated
to take 1 min to complete and is free. If a vessel takes an estimated
25 trips per year, the total annual reporting burden associated with
the pre-trip observer notification is estimated to be 2 hr 30 min.
Amendment 5 requires a released catch affidavit for limited access
vessels that discard catch before the catch has been made available to
an observer for sampling (slipped catch). The reporting burden for
completion of the released catch affidavit is estimated to average 5
min, including the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. The cost associated with
the affidavit is the postage to mail the form to NMFS ($0.46). The
affidavit requirement affects an estimated 93 limited access herring
vessels. If those vessels slipped catch once per trip with an observer
onboard, and took an estimated 38 trips per year, the total annual
reporting burden for the released catch affidavit is estimated to be 3
hr 10 min and $17. Amendment 5 requires vessels fishing with midwater
trawl gear in Groundfish Closed Areas to complete a released catch
affidavit if catch is discarded before it is brought aboard the vessel
and made available for sampling by an observer. At this time, there are
no known Category D vessels that fish with midwater trawl gear;
therefore, there is no additional reporting burden, beyond that
described above, for the released catch affidavit associated with
Groundfish Closed Areas.
Amendment 5 requires that when vessels issued limited access
herring permits are working cooperatively in the herring fishery,
including pair trawling, purse seining, and transferring herring at-
sea, vessels must provide to observers, when requested, the estimated
weight of each species brought on board or released on each tow. NMFS
expects that the vessel operator would do this for each trip, and not
on a tow-by-tow basis. Vessel operators should have this information
recorded and available to report to the observer, so NMFS estimates the
response to take 1 min. It would not have any associated cost, since it
would be a verbal notification for the observer to record.
Send comments regarding these burden estimates or any other aspect
of this data collection, including suggestions for reducing the burden,
to NMFS (see ADDRESSES), and by email to [email protected]
or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
1. Adjustments to the Fishery Management Program
Amendment 5 revises several existing fishery management provisions,
such as regulatory definitions and VMS requirements, and establishes
new provisions, such as a new dealer permit and the mechanism to
consider a river herring catch cap in a future framework, to better
administer the herring fishery. Two alternatives, the selected action
and the no action alternative, were considered for each of these
provisions. Because of the administrative nature of the proposed
measures, the economic impacts of the selected action relative to the
no action alternative is anticipated to have a neutral or low positive
economic impact on fishery-related businesses and communities. For this
reason, the no action alternative was rejected for each of these
provisions. Revising the regulatory definitions for transfer at-sea and
offload for the herring fishery may reduce confusion and/or errors
related to catch reporting, which may, in turn, improve reporting
compliance, help ensure data accuracy and completeness, and lessen the
likelihood of double counting herring catch. Establishing an At-Sea
Herring Dealer Permit for herring carrier vessels that sell herring at
sea may improve catch monitoring by allowing catch reported by
harvesting vessels to be matched with sales of herring by herring
carrier vessels. Expanding vessel requirements related to observer
sampling may help ensure safe sampling and improve the quality of
monitoring data. Measures that result in improved catch monitoring are
anticipated to have low positive economic impacts because they may,
over the long-term, result in less uncertainty and, ultimately, result
in additional harvest being made available to the herring industry.
Specifying that vessels working cooperatively in the herring fishery
are subject to the most restrictive possession limit associated with
the permits issued to the vessels may improve enforcement of herring
possession limits in multi-vessel operations. Eliminating the VMS
power-down provision for herring vessels may make provisions for
herring vessels more consistent with other FMPs and enhance enforcement
of the herring regulations. Lastly, establishing the mechanism to
consider a river herring catch cap in a future framework may be a
potential way to minimize river herring catch in the herring fishery.
Amendment 5 allows herring carriers to choose between enrolling as
a herring carrier with an LOA or declaring a herring carrier trip via
VMS. Currently, herring carriers enroll as herring carriers with an
LOA. When vessels are enrolled as carriers they cannot have fishing
gear aboard, fish for any species, or carry any species other than
herring or groundfish. The LOA has a minimum enrollment period of 7
days.
In addition to the selected action, Amendment 5 considered the no
action alternative (herring carriers enroll with an LOA) and a non-
selected alternative (vessels must declare herring carrier trips via
VMS). Both the selected action and the non-selected alternative would
provide increased operational flexibility at the trip level as compared
to the no
[[Page 8810]]
action alternative, without the minimum 7-day enrollment period.
However, the non-selected alternative would require vessels that did
not already use a VMS to purchase and maintain a VMS. In 2010,
approximately 20 vessels that were not required to maintain a VMS
aboard their vessels requested herring carrier LOAs. The cost of
purchasing a VMS ranges between $1,700 and $3,300, and operating costs
are approximately $40 to $100 per month. The selected action has the
potential for low positive impacts for fishery-related businesses and
communities resulting from the increased operational flexibility of
allowing trip-by-trip planning in comparison to the no action
alternative. The non-selected alternative and the selected action would
both have the potential for low positive benefits from allowing trip-
by-trip planning. In comparison to the selected action, the non-
selected alternative may have a low negative impact by requiring
vessels to purchase and maintain a VMS, but that impact would be
minimal because of the small number of vessels likely affected.
Overall, the selected action is anticipated to have the greatest
positive impact on fishery-related business and communities in
comparison the no action and non-selected alternative, but that impact
is low. Because the no action and non-selected alternatives are
expected to have a net negative impact, they were rejected.
Amendment 5 requires that existing pre-trip observer notification
and VMS pre-landing notification requirements be expanded to additional
herring vessels and that a gear declaration be added to the existing
VMS activity declaration. The intent of these requirements is to: (1)
Better inform NEFOP of when/where herring fishing activity may occur
and assist in the effective deployment of observers; (2) better inform
NMFS OLE of when/where vessels will be landing their catch land to
facilitate monitoring of the landing and/or catch; and (3) provide OLE
with trip-by-trip information on the gear being fished to improve the
enforcement of herring gear regulations. Amendment 5 considered only
one alternative to the selected action, the no action alternative. The
no action alternative would not impose additional trip notification
requirements; therefore, there would be no additional impacts on
fishery-related business and communities. Any impact to the herring
fishery because of the selected action would be through increased
administrative and regulatory burden, but the number of vessels
affected and the actual cost of the additionally reporting is low. In
comparison to the no action alternative, the selected action is
anticipated to result in improved catch monitoring and enforcement of
herring regulations, translating into low positive impacts for fishery-
related businesses and communities. For this reason, the no action
alternative was rejected.
Dealer Reporting Requirements
Amendment 5 proposed requiring herring dealers to accurately weigh
all fish and, if catch is not sorted by species, dealers would be
required to document how they estimate relative species composition in
each dealer report. However, the proposed measure was disapproved, so
this action maintains the no action alternative. Dealers currently
report the weight of fish, obtained by scale weights and/or volumetric
estimates. Because the proposed action did not specify how fish are to
be weighed, the proposed action is not anticipated to change dealer
behavior and, therefore, is expected to have neutral impacts in
comparison to the no action alternative. Amendment 5 considered three
alternatives to the proposed action, the no action alternative, Option
2A, and Option 2C. Option 2A would require that relative species
composition be documented annually and Option 2C would require that a
vessel representative confirm each dealer report. Overall, relative to
the selected, no action alternative, the proposed action and Option 2A
may have a low negative impact on dealers due to the regulatory burden
of documenting how species composition is estimated. In comparison,
Option 2C may have a low positive impact on fishery participants,
despite an increased regulatory burden, if it minimizes any loss of
revenue due to data errors in the dealer reports and/or the tracking of
herring catch.
Areas 2/3 Open Access Herring Permit
Amendment 5 establishes a new open access herring permit with a
20,000-lb (9-mt) herring possession limit in herring management Areas 2
and 3 for limited access mackerel vessels. Amendment 5 considered two
alternatives to the selected action, the no action alternative (6,600-
lb (3-mt) herring possession limit) and the non-selected alternative
(10,000-lb (4.5-mt) herring possession limit). The impact of the
selected action on fishery-related businesses and communities is
expected to be more positive than that of the no action alternative or
the non-selected alternative. There is significant overlap between the
mackerel and herring fisheries. Currently, vessels issued an open
access herring permit and participating in the mackerel fishery are
required to discard any herring in excess of the open access permit's
6,600-lb (3-mt) possession limit. The analysis predicts that
approximately 60 vessels would be eligible for the new open access
herring permit. In comparison to the no action and non-selected
alternatives, the selected action could decrease the occurrence of
regulatory discards and increase revenue for vessels that are eligible
for this permit. For this reason, the no action and non-selected
alternatives were rejected.
As described previously, the cost of purchasing a VMS ranges
between $1,700 and $3,300, and operating costs are approximately $40 to
$100 per month. Economic impacts on small entities resulting from the
purchase costs of new VMS units required by the new open access permit
have been minimized through a VMS reimbursement program (July 21, 2006,
71 FR 41425) that made available approximately $4.5 million in grant
funds for fiscal year (FY) 2006 for vessel owners and/or operators who
have purchased a VMS unit for the purpose of complying with fishery
regulations that became effective during or after FY 2006. As of April
3, 2007, an additional $4 million was being added to the fund.
Reimbursement for VMS units is available on a first come, first serve
basis until the funds are depleted. More information on the VMS
reimbursement program is available from the Pacific States Marine
Fisheries Commission (see ADDRESSES) and from the NMFS VMS Support
Center, which can be reached at 888-219-9228.
2. Adjustments to the At-Sea Catch Monitoring
Amendment 5 proposed requiring 100-percent observer coverage on
Category A and B vessels, coupled with an industry contribution of $325
per day. However, the proposed measure was disapproved, so this action
maintains the no action alternative. Amendment 5 considered three
alternatives to the proposed action (Alternative 2), the no action
alternative (existing SBRM process for determining observer coverage
levels), Alternative 3 (modified SBRM process for determining observer
coverage levels), and Alternative 4 (Council-specified targets for
observer coverage levels). Additionally, for each of the action
alternatives, Amendment 5 considered funding options, NMFS funding (no
action alternative) versus NMFS and industry funding, and observer
service provider options, all observer service
[[Page 8811]]
providers subject to the same requirements (no action alternative)
versus states as authorized observer service providers. The proposed
action specifies the highest level of observer coverage in comparison
to the no action alternative and the non-selected alternatives. The
specific coverage levels under the no action alternative and the non-
selected alternatives are unknown at this time, because they would
depend on an analysis of fishery data from previous years, but coverage
levels under these alternatives are expected to be less than 100
percent. The proposed action specifies an industry contribution of $325
per day. For Category A and B vessels, a contribution of $325 is
estimated to be 3-6 percent of daily revenue and 8-45 percent of daily
operating costs. The other non-selected alternatives (no action,
Alternative 3, Alternative 4) do not specify an industry contribution,
so a comparison of direct costs to industry across alternatives is not
possible. The proposed action is likely to have the largest negative
impact on fishery-related businesses and communities of any
alternatives due to the cost of observer coverage, potentially
resulting in less effort and lower catch. In the long-term, increased
monitoring and improved data collections for the herring fishery may
translate into improved management of the herring fishery that would
benefit fishery-related businesses and communities. Options for
observer service providers are likely to have neutral impacts on
fishery-related businesses across alternatives.
Amendment 5 requires limited access vessels to bring all catch
aboard the vessel and make it available for sampling by an observer. If
catch was slipped before it was sampled by an observer, it would count
against a slippage cap and require a released catch affidavit to be
completed. Amendment 5 proposed that if a slippage cap was reached, a
vessel would be required to return to port immediately following any
additional slippage events. However, the proposed measure was
disapproved and, instead, this action implements Option 2 and Option 3.
Amendment 5 considered four alternatives to the proposed action: The no
action alternative, Option 2, Option 3, and Option 4. The selected and
non-selected alternatives include various elements of the proposed
action, including a requirement to complete a released catch affidavit
(Option 2), requirement to bring all catch aboard and make it available
to an observer for sampling (Option 3), and catch deduction for slipped
catch (Option 4). The no action alternative would not establish
slippage prohibitions or slippage caps, but it would maintain the
existing sampling requirements for midwater trawl vessels fishing in
Groundfish Closed Area I.
Negative impacts to the herring fishery associated with all these
alternatives include increased time spent pumping fish aboard the
vessel to be sampled by an observer, potential decrease in vessel
safety during poor operating conditions, and the administrative burden
of completing a released catch affidavit. The penalties associated with
slippage vary slightly across the alternatives. Negative impacts
associated with the proposed action and Option 4 are likely the
greatest. A deduction of 100,000 lb (45 mt) per slippage event in each
management area (Option 4) would reduce the harvest available to
fishing vessels and a trip termination (proposed action) after a
slippage event would result in higher costs for fishing vessels,
especially those fishing in offshore areas. The overall impacts of the
options that propose catch deductions (Option 4) and trip termination
(proposed action) are similar and, in comparison to the no action
alternative, are negative. Costs associated with herring fishing trips
are high, particularly with the current cost of fuel. Trips terminated
prematurely could result in unprofitable trips, leaving not only the
owners with debt, but crewmembers without income and negative impacts
on fishery-related businesses and communities. Option 4 that proposed a
catch deduction was rejected because of the potential negative economic
impacts, including loss of revenue from catch deduction and operating
cost of returning to port, to vessels. As described previously, the
proposed action was disapproved because it was inconsistent with MSA
National Standards 2 and 10. Options 2 and 3 were selected because they
may improve information on catch in the herring fishery by requiring
vessels operators to document when and why slippage occurs (Option 2),
and by prohibiting catch from being discarded before it was sampled by
an observer (Option 3). The no action alternative was rejected because
it was not expected to improve information on catch in the herring
fishery.
3. Measures To Address River Herring Interactions
Amendment 5 establishes River Herring Monitoring/Avoidance Areas.
Amendment 5 considered two alternatives to the selected action: The no
action alternative and a non-selected alternative (establishing River
Herring Protection Areas). Relative to the no action alternative, the
selected action and the non-selected alternative are expected to have a
negative impact on fishery-related businesses and communities due to
the costs associated with increased monitoring and/or area closures.
The impact of the River Herring Areas would depend on the measures
applied to the areas, such as increased monitoring, requirement that
catch be brought aboard the vessels for sampling by observers, and
closures. The non-selected option, requiring 100-percent observer
coverage in the River Herring Monitoring/Avoidance Areas, would likely
have the largest negative impact on fishery-related businesses and
communities, especially with the industry required to pay $325 per day.
The selected option, requiring all catch to be brought aboard, would
have a less negative impact than the non-selected option requiring 100-
percent observer coverage. The non-selected option implementing either
increased monitoring or closures after a river herring catch trigger
was reached would have less impact on fishery-related businesses and
communities than the proposed action, because the additional
requirements would not become effective until the catch trigger is
reached. The selected action also includes support for the existing
river herring bycatch avoidance program involving SFC, MA DMF, and
SMAST. This voluntary program seeks to reduce river herring bycatch
with real-time information on river herring distribution and herring
fishery encounters. This aspect of the selected action has the
potential to mitigate some of the negative impacts of the selected
action by developing river herring bycatch avoidance measures in
cooperation with the fishing industry. The no action alternative would
not have provided for the formal evaluation of the existing river
herring bycatch avoidance program, therefore, it was rejected. The non-
selected alternative of establishing River Herring Protection Area was
rejected because of the potential negative impacts of closing areas to
herring fishing and not providing for support for the existing river
herring bycatch avoidance program.
4. Measures To Address Midwater Trawl Access to Groundfish Closed Areas
Amendment 5 expands the existing monitoring and sampling
requirements for Groundfish Closed Area I to all herring vessels
fishing with midwater trawl gear in the Groundfish Closed Areas.
Amendment 5 considered three
[[Page 8812]]
alternatives to the selected action (Alternative 3/4), the no action
alternative (maintain existing sampling requirements for Closed Area
I), Alternative 2 (removing existing sampling requirements for Closed
Area I), and Alternative 5 (prohibiting fishing with midwater trawl
gear in the Closed Areas). Compared to the no action alternative and
the non-selected alternatives, the selected action would have the
highest negative impact on fishery participants because of the
following requirements: (1) 100-percent observer coverage, (2) bringing
all catch aboard for sampling, (3) leaving the Closed Areas if catch is
released before it has been sampled by an observer, (4) and completing
a released catch affidavit. The midwater trawl fleet may avoid the
Closed Areas if fishing in the Areas becomes too expensive. If
observers are not available, the impact of the proposed action would be
similar to Alternative 5, which would close the Closed Areas to
midwater trawl vessels. While a portion of the herring revenue has been
shown to come from the Closed Areas, that revenue is not expected to
completely disappear. Instead, the midwater fleet would likely fish in
other areas, this would be a potential additional cost for the fleet if
those areas are less productive than the Closed Areas. The selected
action is expected to improve catch data on herring vessels fishing in
the Closed Areas. The no action alternative and Alternatives 2 and 5
were not selected because they would not have resulted in improved data
catch for the Closed Areas by either not increasing sampling
requirements in the Closed Areas (no action and Alternative 2) or by
prohibiting fishing in the Closed Areas (Alternative 5).
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency will publish
one or more guides to assist small entities in complying with the rule,
and will designate such publications as ``small entity compliance
guides.'' The agency will explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to permit holders that also serves as
a small entity compliance guide (the guide) was prepared. Copies of
this final rule are available from the Northeast Regional Office, and
the guide (i.e., permit holder letter) will be sent to all holders of
permits for the herring fishery. The guide and this final rule will be
available upon request.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: February 7, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.2, the definitions for ``Atlantic herring carrier'' and
``Atlantic herring dealer'' are revised and definitions for ``Atlantic
herring offload,'' ``Atlantic herring transfer at-sea,'' and ``Slippage
in the Atlantic herring fishery'' are added in alphabetical order to
read as follows:
Sec. 648.2 Definitions.
* * * * *
Atlantic herring carrier means a fishing vessel that may receive
and transport herring caught by another fishing vessel, provided the
vessel has been issued a herring permit, does not have any gear on
board capable of catching or processing herring, and that has on board
a letter of authorization from the Regional Administrator to transport
herring caught by another fishing vessel or has declared an Atlantic
herring carrier trip via VMS consistent with the requirements at Sec.
648.4(a)(10)(ii).
Atlantic herring dealer means:
(1) Any person who purchases or receives for a commercial purpose
other than solely for transport or pumping operations any herring from
a vessel issued a Federal Atlantic herring permit, whether offloaded
directly from the vessel or from a shore-based pump, for any purpose
other than for the purchaser's own use as bait;
(2) Any person owning or operating a processing vessel that
receives any Atlantic herring from a vessel issued a Federal Atlantic
herring permit whether at sea or in port; or
(3) Any person owning or operating an Atlantic herring carrier that
sells Atlantic herring received at sea or in port from a vessel issued
a Federal Atlantic herring permit.
Atlantic herring offload means to remove, begin to remove, to pass
over the rail, or otherwise take Atlantic herring off of or away from
any vessel issued an Atlantic herring permit for sale to either a
permitted at-sea Atlantic herring dealer or a permitted land-based
Atlantic herring dealer.
* * * * *
Atlantic herring transfer at-sea means a transfer from the hold,
deck, codend, or purse seine of a vessel issued an Atlantic herring
permit to another vessel for personal use as bait, to an Atlantic
herring carrier or at-sea processor, to a permitted transshipment
vessel, or to another permitted Atlantic herring vessel. Transfers
between vessels engaged in pair trawling are not herring transfers at-
sea.
* * * * *
Slippage in the Atlantic herring fishery means catch that is
discarded prior to it being brought aboard a vessel issued an Atlantic
herring permit and/or prior to making it available for sampling and
inspection by a NMFS-approved observer. Slippage includes releasing
catch from a codend or seine prior to the completion of pumping the
catch aboard and the release of catch from a codend or seine while the
codend or seine is in the water. Fish that cannot be pumped and remain
in the codend or seine at the end of pumping operations are not
considered slippage. Discards that occur after the catch is brought on
board and sorted are also not considered slippage.
* * * * *
0
3. In Sec. 648.4, paragraph (a)(10)(ii) is revised and paragraph
(a)(10)(vi) is added to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(10) * * *
(ii) Atlantic herring carrier. An Atlantic herring carrier must
have been issued and have on board a herring permit and a letter of
authorization to receive and transport Atlantic herring caught by
another permitted fishing vessel or it must have been issued and have
on board a herring permit and have declared an Atlantic herring carrier
trip via VMS consistent with the requirements at Sec. 648.10(m)(1).
Once a vessel declares an Atlantic herring carrier trip via VMS, it is
bound to the VMS operating requirements, specified at Sec. 648.10, for
the remainder of the fishing year. On Atlantic herring carrier trips
under either the letter of authorization or an Atlantic herring carrier
VMS trip declaration, an Atlantic herring carrier is exempt from the
VMS, IVR, and VTR vessel reporting requirements, as specified in Sec.
648.7 and subpart K of this part, except as
[[Page 8813]]
otherwise required by this part. If not declaring an Atlantic herring
carrier trip via VMS, an Atlantic herring carrier vessel must request
and obtain a letter of authorization from the Regional Administrator,
and there is a minimum enrollment period of 7 calendar days for a
letter of authorization. Atlantic herring carrier vessels operating
under a letter of authorization or an Atlantic herring carrier VMS trip
declaration may not conduct fishing activities, except for purposes of
transport, or possess any fishing gear on board the vessel capable of
catching or processing herring, and they must be used exclusively as an
Atlantic herring carrier vessel, and they must carry observers if
required by NMFS. While operating under a valid letter of authorization
or Atlantic herring carrier VMS trip declaration, such vessels are
exempt from any herring possession limits associated with the herring
vessel permit categories. Atlantic herring carrier vessels operating
under a letter of authorization or an Atlantic herring carrier VMS trip
declaration may not possess, transfer, or land any species other than
Atlantic herring, except that they may possess Northeast multispecies
transferred by vessels issued either an All Areas Limited Access
Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit,
consistent with the applicable possession limits for such vessels
specified at Sec. 648.86(a)(3) and (k).
* * * * *
(vi) Open access herring permits. A vessel that has not been issued
a limited access Atlantic herring permit may obtain:
(A) An All Areas open access Atlantic herring permit to possess up
to 6,600 lb (3 mt) of herring per trip from all herring management
areas, limited to one landing per calendar day; and/or
(B) An Areas 2/3 open access Atlantic herring permit to possess up
to 20,000 lb (9 mt) of herring per trip from Herring Management Areas 2
and 3, limited to one landing per calendar day, provided the vessel has
also been issued a Limited Access Atlantic Mackerel permit, as defined
at Sec. 648.4(a)(5)(iii).
* * * * *
0
4. In Sec. 648.7, paragraphs (b)(2)(i), (b)(3)(i) introductory text,
(b)(3)(i)(A), and (b)(3)(i)(C)(2) are revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
* * * * *
(b) * * *
(2) * * *
(i) Atlantic herring owners or operators issued an All Areas open
access permit. The owner or operator of a vessel issued an All Areas
opn 9access permit to fish for herring must report catch (retained and
discarded) of herring via an IVR system for each week herring was
caught, unless exempted by the Regional Administrator. IVR reports are
not required for weeks when no herring was caught. The report shall
include at least the following information, and any other information
required by the Regional Administrator: Vessel identification; week in
which herring are caught; management areas fished; and pounds retained
and pounds discarded of herring caught in each management area. The IVR
reporting week begins on Sunday at 0001 hr (12:01 a.m.) local time and
ends Saturday at 2400 hr (12 midnight). Weekly Atlantic herring catch
reports must be submitted via the IVR system by midnight each Tuesday,
eastern time, for the previous week. Reports are required even if
herring caught during the week has not yet been landed. This report
does not exempt the owner or operator from other applicable reporting
requirements of this section.
* * * * *
(3) * * *
(i) Atlantic herring owners or operators issued a limited access
permit or Areas 2/3 open access permit. The owner or operator of a
vessel issued a limited access permit or Areas 2/3 open access permit
to fish for herring must report catch (retained and discarded) of
herring daily via VMS, unless exempted by the Regional Administrator.
The report shall include at least the following information, and any
other information required by the Regional Administrator: Fishing
Vessel Trip Report serial number; month and day herring was caught;
pounds retained for each herring management area; and pounds discarded
for each herring management area. Daily Atlantic herring VMS catch
reports must be submitted in 24-hr intervals for each day and must be
submitted by 0900 hr (9:00 a.m.) of the following day. Reports are
required even if herring caught that day has not yet been landed. This
report does not exempt the owner or operator from other applicable
reporting requirements of this section.
(A) The owner or operator of any vessel issued a limited access
herring permit or Areas 2/3 open access permit must submit a catch
report via VMS each day, regardless of how much herring is caught
(including days when no herring is caught), unless exempted from this
requirement by the Regional Administrator.
* * * * *
(C) * * *
(2) A vessel that transfers herring at sea to an authorized carrier
vessel must report all catch daily via VMS and must report all
transfers on the Fishing Vessel Trip Report. Each time the vessel
transfers catch to the carrier vessel is defined as a trip for the
purposes of reporting requirements and possession allowances.
* * * * *
0
5. In Sec. 648.10, paragraphs (b)(8) and (c)(2)(i)(B) are revised,
paragraph (c)(2)(i)(C) is removed and reserved, and paragraph (m) is
added to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(b) * * *
(8) A vessel issued a limited access herring permit (i.e., All
Areas Limited Access Permit, Areas 2 and 3 Limited Access Permit,
Incidental Catch Limited Access Permit), or a vessel issued an Areas 2/
3 open access herring permit, or a vessel declaring an Atlantic herring
carrier trip via VMS.
* * * * *
(c) * * *
(2) * * *
(i) * * *
(B) For vessels fishing with a valid NE multispecies limited access
permit, a valid surfclam and ocean quahog permit specified at Sec.
648.4(a)(4), an Atlantic sea scallop limited access permit, or an
Atlantic herring permit, the vessel owner signs out of the VMS program
for a minimum period of 30 consecutive days by obtaining a valid letter
of exemption pursuant to paragraph (c)(2)(ii) of this section, the
vessel does not engage in any fisheries until the VMS unit is turned
back on, and the vessel complies with all conditions and requirements
of said letter; or
* * * * *
(m) Atlantic herring VMS notification requirements. (1) A vessel
issued a Limited Access Herring Permit or an Areas 2/3 Open Access
Herring Permit intending to declare into the herring fishery or a
vessel issued an Atlantic herring permit and intending to declare an
Atlantic herring carrier trip via VMS must notify NMFS by declaring a
herring trip with the appropriate gear code prior to leaving port at
the start of each trip in order to harvest, possess, or land herring on
that trip.
(2) A vessel issued a Limited Access Herring Permit or an Areas 2/3
Open Access Herring Permit or a vessel that declared an Atlantic
herring carrier trip via VMS must notify NMFS Office of Law Enforcement
through VMS of the
[[Page 8814]]
time and place of offloading at least 6 hr prior to landing or, if
fishing ends less than 6 hours before landing, as soon as the vessel
stops catching fish. The Regional Administrator may adjust the prior
notification minimum time through publication of a document in the
Federal Register consistent with the Administrative Procedure Act.
0
6. In Sec. 648.11, paragraph (m) is added to read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(m) Atlantic herring observer coverage--(1) Pre-trip notification.
At least 48 hr prior to the beginning of any trip on which a vessel may
harvest, possess, or land Atlantic herring, a vessel issued a Limited
Access Herring Permit or a vessel issued an Areas 2/3 Open Access
Herring Permit on a declared herring trip or a vessel issued an All
Areas Open Access Herring Permit fishing with midwater trawl gear in
Management Areas 1A, 1B, and/or 3, as defined in Sec. 648.200(f)(1)
and (3), and herring carriers must provide notice of the following
information to NMFS: Vessel name, permit category, and permit number;
contact name for coordination of observer deployment; telephone number
for contact; the date, time, and port of departure; gear type; target
species; and intended area of fishing, including whether the vessel
intends to engage in fishing in the Northeast Multispecies Closed
Areas, Closed Area I, Closed Area II, Nantucket Lightship Closed Area,
Cashes Ledge Closure Area, and Western GOM Closure Area, as defined in
Sec. 648.81(a) through (e), respectively, at any point in the trip.
Trip notification calls must be made no more than 10 days in advance of
each fishing trip. The vessel owner, operator, or manager must notify
NMFS of any trip plan changes at least 12 hr prior to vessel departure
from port.
(2) When vessels issued limited access herring permits are working
cooperatively in the Atlantic herring fishery, including pair trawling,
purse seining, and transferring herring at-sea, each vessel must
provide to observers, when requested, the estimated weight of each
species brought on board and the estimated weight of each species
released on each tow.
(3) Sampling requirements. In addition to the requirements at Sec.
648.11(d)(1) through (7), an owner or operator of a vessel issued a
Limited Access Herring Permit on which a NMFS-approved observers is
embarked must provide observers:
(i) A safe sampling station adjacent to the fish deck, including: A
safety harness, if footing is compromised and grating systems are high
above the deck; a safe method to obtain samples; and a storage space
for baskets and sampling gear.
(ii) Reasonable assistance to enable observers to carry out their
duties, including but not limited to assistance with: Obtaining and
sorting samples; measuring decks, codends, and holding bins; collecting
bycatch when requested by the observers; and collecting and carrying
baskets of fish when requested by the observers.
(iii) Advance notice when pumping will be starting; when sampling
of the catch may begin; and when pumping is coming to an end.
(iv) Visual access to the net, the codend of the net, and the purse
seine bunt and any of its contents after pumping has ended and before
the pump is removed from the net. On trawl vessels, the codend
including any remaining contents must be brought on board, unless
bringing the codend on board is not possible. If bringing the codend on
board is not possible, the vessel operator must ensure that the
observer can see the codend and its contents as clearly as possible
before releasing its contents.
(4) Measures to address slippage. (i) No vessel issued a limited
access Atlantic herring permit and carrying a NMFS-approved observer
may release fish from the net, transfer fish to another vessel that is
not carrying a NMFS-approved observer, or otherwise discard fish at
sea, unless the fish has first been brought on board the vessel and
made available for sampling and inspection by the observer, except in
the following circumstances:
(A) The vessel operator has determined, and the preponderance of
available evidence indicates that, there is a compelling safety reason;
or
(B) A mechanical failure precludes bringing some or all of the
catch on board the vessel for inspection; or,
(C) The vessel operator determines that pumping becomes impossible
as a result of spiny dogfish clogging the pump intake. The vessel
operator shall take reasonable measures, such as strapping and
splitting the net, to remove all fish which can be pumped from the net
prior to release.
(ii) Vessels may make test tows without pumping catch on board if
the net is re-set without releasing its contents provided that all
catch from test tows is available to the observer to sample when the
next tow is brought on board for sampling.
(iii) If fish are released prior to being brought on board the
vessel due to any of the above exceptions, the vessel operator must
complete and sign a Released Catch Affidavit detailing the vessel name
and permit number; the VTR serial number; where, when, and for what
reason the catch was released; the estimated weight of each species
brought on board or released on that tow. A completed affidavit must be
submitted to NMFS within 48 hr of the end of the trip.
0
7. In Sec. 648.13, paragraph (f)(2)(i) is revised to read as follows:
Sec. 648.13 Transfers at sea.
* * * * *
(f) * * *
(2) * * *
(i) A vessel issued an Atlantic herring permit may operate as a
herring carrier vessel and receive herring provided it either is issued
a carrier vessel letter of authorization and complies with the terms of
that authorization, as specified in Sec. 648.4(a)(10)(ii), or it must
have been issued and have on board a herring permit and have declared
an Atlantic herring carrier trip via VMS, consistent with the
requirements at Sec. 648.10(l)(1).
* * * * *
0
8. In Sec. 648.14, paragraphs (r)(1)(ii)(C) and (r)(1)(vii)(B) are
revised; and paragraphs (r)(1)(viii)(C) and (D), and (r)(2)(viii)
through (xii) are added to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(r) * * *
(1) * * *
(ii) * * *
(C) Possess or land more herring than is allowed by the vessel's
Atlantic herring permit or the most restrictive herring possession
limit associated with the permits issued to vessels working
cooperatively, including vessels pair trawling, purse seining, or
transferring herring at-sea.
* * * * *
(vii) * * *
(B) Receive Atlantic herring at sea in or from the EEZ, solely for
transport, without an Atlantic herring carrier letter of authorization
from the Regional Administrator or having declared an Atlantic herring
carrier trip via VMS consistent with the requirements at Sec.
648.4(a)(10)(ii).
* * * * *
(viii) * * *
(C) Fail to declare via VMS into the herring fishery by entering
the appropriate herring fishery code and appropriate gear code prior to
leaving port at the start of each trip to harvest, possess, or land
herring, if a vessel has been issued a Limited Access Herring Permit or
issued an Areas 2/3 Open
[[Page 8815]]
Access Herring Permit or is intending to act as an Atlantic herring
carrier.
(D) Fail to notify NMFS Office of Law Enforcement through VMS of
the time and place of offloading at least 6 hr prior to landing or, if
fishing ends less than 6 hours before landing, as soon as the vessel
stops catching fish, if a vessel has been issued a Limited Access
Herring Permit or issued an Areas 2/3 Open Access Herring Permit or has
declared an Atlantic herring carrier trip via VMS.
* * * * *
(2) * * *
(viii) Fish with midwater trawl gear in any Northeast Multispecies
Closed Area, as defined in Sec. 648.81(a) through (e), without a NMFS-
approved observer on board, if the vessel has been issued an Atlantic
herring permit.
(ix) Release fish from the net, transfer fish to another vessel
that is not carrying a NMFS-approved observer, or otherwise discard, as
defined in Sec. 600.10 of this chapter, fish at sea before bringing
the fish aboard and making it available to the observer for sampling,
unless subject to one of the exemptions defined at Sec. 648.202(b)(2),
if fishing any part of a tow inside the Northeast Multispecies Closed
Areas, as defined at Sec. 648.81(a) through (e).
(x) Fail to immediately leave the Northeast Multispecies Closed
Areas and complete, sign, and submit an affidavit as required by Sec.
648.202(b)(2) and (4).
(xi) Release fish from the net, transfer fish to another vessel
that is not carrying a NMFS-approved observer, or otherwise discard, as
defined in Sec. 600.10 of this chapter, fish at sea before bringing
the fish aboard and making it available to the observer for sampling,
unless subject to one of the exemptions defined at defined at Sec.
648.11(m)(4)(i).
(xii) Fail to complete, sign, and submit an affidavit if fish are
released pursuant to the requirements at Sec. 648.11(m)(4)(iii)(A).
* * * * *
0
9. In Sec. 648.80, paragraph (d)(7)(iii)(B) is revised to read as
follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on
gear and methods of fishing.
* * * * *
(d) * * *
(7) * * *
(iii) * * *
(B) Complete and sign a Released Catch Affidavit detailing the
vessel name and permit number; the VTR serial number; where, when, and
for what reason the catch was released; the total weight of fish caught
on that tow; and the weight of fish released (if less than the full
tow). A completed affidavit must be submitted to NMFS within 48 hr of
the end of the trip.
* * * * *
0
10. In Sec. 648.200, paragraph (f)(4) is added and paragraph (g) is
revised to read as follows:
Sec. 648.200 Specifications.
* * * * *
(f) * * *
(4) River Herring Monitoring/Avoidance Areas.
(i) January-February River Herring Monitoring/Avoidance Areas. The
January-February River Herring Monitoring/Avoidance Areas include 4
sub-areas. Each sub-area includes the waters bounded by the coordinates
below, connected in the order listed by straight lines unless otherwise
noted.
(A) January-February River Herring Monitoring/Avoidance Sub-Area 1.
(1) 43[deg]00' N Lat., 71[deg]00' W Long.;
(2) 43[deg]00' N Lat., 70[deg]30' W Long;
(3) 42[deg]30' N Lat., 70[deg]30' W Long;
(4) 42[deg]30' N Lat., 71[deg]00' W Long.; and
(5) 43[deg]00' N Lat., 71[deg]00' W Long.
(B) January-February River Herring Monitoring/Avoidance Sub-Area 2.
(1) 42[deg]00' N Lat., 70[deg]00' W Long.;
(2) 42[deg]00' N Lat., 69[deg]30' W Long.;
(3) 41[deg]30' N Lat., 69[deg]30' W Long,;
(4) 41[deg]30' N Lat., 70[deg]00' W Long.; and
(5) 42[deg]00' N Lat., 70[deg]00' W Long.
(C) January-February River Herring Monitoring/Avoidance Sub-Area 3.
(1) 41[deg]30' N Lat., 72[deg]00' W Long.;
(2) 41[deg]30' N Lat., 71[deg]00' W Long.;
(3) 40[deg]30' N Lat., 71[deg]00' W Long.;
(4) 40[deg]30' N Lat., 72[deg]30' W Long.;
(5) The southernmost shoreline of Long Island, New York, 72[deg]30'
W Long.;
(6) The north-facing shoreline of Long Island, New York, 72[deg]00'
W Long.; and
(7) 41[deg]30' N Lat., 72[deg]00' W Long.
(8) Points 5 and 6 are connected following the coastline of the
south fork of eastern Long Island, New York.
(D) January-February River Herring Monitoring/Avoidance Sub-Area 4.
(1) 40[deg]30' N Lat., 74[deg]00' W Long.;
(2) 40[deg]30' N Lat., 72[deg]30' W Long.;
(3) 40[deg]00' N Lat., 72[deg]30' W Long.;
(4) 40[deg]00' N Lat., 72[deg]00' W Long.;
(5) 39[deg]30' N Lat., 72[deg]00' W Long.;
(6) 39[deg]30' N Lat., 73[deg]30' W Long,;
(7) 40[deg]00' N Lat., 73[deg]30' W Long.;
(8) 40[deg]00' N Lat., 74[deg]00' W Long.; and
(9) 40[deg]30' N Lat., 74[deg]00' N Long;
(10) Points 8 and 9 are connected following 74[deg]W Long. and the
easternmost shoreline of New Jersey, whichever is furthest east.
(ii) March-April River Herring Monitoring/Avoidance Areas. The
March-April River Herring Monitoring/Avoidance Areas include 5 sub-
areas. Each sub-area includes the waters bounded by the coordinates
below, connected in the order listed by straight lines unless otherwise
noted.
(A) March-April River Herring Monitoring/Avoidance Sub-Area 1.
(1) 43[deg]00' N Lat., 71[deg]00' W Long.;
(2) 43[deg]00' N Lat., 70[deg]30' W Long.;
(3) 42[deg]30' N Lat., 70[deg]30' W Long.;
(4) 42[deg]30' N Lat., 71[deg]00' W Long.; and
(5) 43[deg]00' N Lat., 71[deg]00' W Long.
(B) March-April River Herring Monitoring/Avoidance Sub-Area 2.
(1) 42[deg]00' N Lat., 70[deg]00' W Long.;
(2) 42[deg]00' N Lat., 69[deg]30' W Long.;
(3) 41[deg]30' N Lat., 69[deg]30' W Long.;
(4) 41[deg]30' N Lat., 70[deg]00' W Long.; and
(5) 42[deg]00' N Lat., 70[deg]00' W Long.
(C) March-April River Herring Monitoring/Avoidance Sub-Area 3.
(1) 41[deg]00' N Lat., The easternmost shoreline of Long Island,
New York;
(2) 41[deg]00' N Lat., 71[deg]00' W Long.;
(3) 40[deg]30' N Lat., 71[deg]00' W Long.;
(4) 40[deg]30' N Lat., 71[deg]30' W Long.;
(5) 40[deg]00' N Lat., 71[deg]30' W Long.;
(6) 40[deg]00' N Lat., 72[deg]30' W Long.;
(7) The southernmost shoreline of Long Island, New York, 72[deg]30'
W Long.; and
(8) 41[deg]00' N Lat., The easternmost shoreline of Long Island,
New York.
(9) Points 7 and 8 are connected following the southern shoreline
of Long Island, New York.
(D) March-April River Herring Monitoring/Avoidance Sub-Area 4.
(1) 40[deg]00' N Lat., 73[deg]30' W Long.;
(2) 40[deg]00' N Lat., 72[deg]30' W Long.;
(3) 39[deg]00' N Lat., 72[deg]30' W Long.;
(4) 39[deg]00' N Lat., 73[deg]30' W Long.; and
(5) 40[deg]00' N Lat., 73[deg]30' W Long.
(E) March-April River Herring Monitoring/Avoidance Sub-Area 5.
(1) 40[deg]30' N Lat., 74[deg]00' W Long.;
(2) 40[deg]30' N Lat., 73[deg]30' W Long.;
(3) 40[deg]00' NLat., 73[deg]30' W Long.;
(4) 40[deg]00' N Lat., 74[deg]00' W Long.; and
(5) 40[deg]30' N Lat., 74[deg]00' W Long.
(6) Points 4 and 5 are connected following 74[deg] W Long. and the
easternmost shoreline of New Jersey, whichever is furthest east.
(iii) May-June River Herring Monitoring/Avoidance Areas. The May-
June River Herring Monitoring/Avoidance Areas include 2 sub-areas. Each
sub-area includes the waters bounded by the coordinates below,
connected in the order listed by straight lines unless otherwise noted.
(A) May-June River Herring Monitoring/Avoidance Sub-Area 1.
(1) 44[deg]00' N Lat., 69[deg]30' W Long.;
(2) 44[deg]00' N Lat., 69[deg]00' W Long.;
(3) 43[deg]30' N Lat., 69[deg]00' W Long.;
(4) 43[deg]30' N Lat., 69[deg]30' W Long.; and
[[Page 8816]]
(5) 44[deg]00' N Lat., 69[deg]30' W Long.
(B) May-June River Herring Monitoring/Avoidance Sub-Area 2.
(1) 42[deg]00' N Lat., 70[deg]00' W Long.;
(2) 42[deg]00' N Lat., 69[deg]30' W Long.;
(3) 41[deg]30' N Lat., 69[deg]30' W Long.;
(4) 41[deg]30' N Lat., 70[deg]00' W Long.; and
(5) 42[deg]00' N Lat., 70[deg]00' W Long.
(iv) July-August River Herring Monitoring/Avoidance Areas. The
July-August River Herring Monitoring/Avoidance Areas include 2 sub-
areas. Each sub-area includes the waters bounded by the coordinates
below, connected in the order listed by straight lines unless otherwise
noted.
(A) July-August River Herring Monitoring/Avoidance Sub-Area 1.
(1) 44[deg]00' N Lat., 70[deg]00' W Long.;
(2) 44[deg]00' N Lat., 69[deg]30' W Long.;
(3) 43[deg]00' N Lat., 69[deg]30' W Long.;
(4) 43[deg]00' N Lat., 70[deg]00' W Long.; and
(5) 44[deg]00' N Lat., 70[deg]00' W Long.
(6) The boundary from Points 4 to 5 excludes the portions Maquoit
and Middle Bays east of 70[deg]00' W Long.
(B) July-August River Herring Monitoring/Avoidance Sub-Area 2.
(1) 44[deg]00' N Lat., 69[deg]00' W Long.;
(2) 44[deg]00' N Lat., 68[deg]30' W Long.;
(3) 43[deg]30' N Lat., 68[deg]30' W Long.;
(4) 43[deg]30' N Lat., 69[deg]00' W Long.; and
(5) 44[deg]00' N Lat., 69[deg]00' W Long.
(v) September-October River Herring Monitoring/Avoidance Areas. The
September-October River Herring Monitoring/Avoidance Areas include 2
sub-areas. Each sub-area includes the waters bounded by the coordinates
below, connected in the order listed by straight lines unless otherwise
noted.
(A) September-October River Herring Monitoring/Avoidance Sub-Area
1.
(1) 44[deg]30' N Lat., 68[deg]00' W Long.;
(2) 44[deg]30' N Lat., 67[deg]00' W Long.;
(3) 44[deg]00' N Lat., 67[deg]00' W Long.;
(4) 44[deg]00' N Lat., 68[deg]00' W Long.; and
(5) 44[deg]30' N Lat., 68[deg]00' W Long.
(B) September-October River Herring Monitoring/Avoidance Sub-Area
2.
(1) 43[deg]00' N Lat., 71[deg]00' W Long.;
(2) 43[deg]00' N Lat., 70[deg]30' W Long.;
(3) 42[deg]30' N Lat., 70[deg]30' W Long.;
(4) 42[deg]30' N Lat., 71[deg]00' W Long.; and
(5) 43[deg]00' N Lat., 71[deg]00' W Long.
(vi) November-December River Herring Monitoring/Avoidance Areas.
The November-December River Herring Monitoring/Avoidance Areas include
2 sub-areas. Each sub-area includes the waters bounded by the
coordinates below, connected in the order listed by straight lines
unless otherwise noted.
(A) November-December River Herring Monitoring/Avoidance Sub-Area
1.
(1) 43[deg]00' N Lat., 71[deg]00' W Long.;
(2) 43[deg]00' N Lat., 70[deg]00' W Long.;
(3) 42[deg]00' N Lat., 70[deg]00' W Long.;
(4) 42[deg]00' N Lat., 69[deg]30' W Long.;
(5) 41[deg]30' N Lat., 69[deg]30' W Long.;
(6) 41[deg]30' N Lat., 70[deg]00' W Long.;
(7) The south-facing shoreline of Cape Cod, MA, 70[deg]00' W Long.;
(8) 42[deg]00' N Lat., The west-facing shoreline of Cape Cod, MA
Long.;
(9) 42[deg]00' N Lat., 70[deg]30' W Long.;
(10) 42[deg]30' N Lat., 70[deg]30' W Long.;
(11) 42[deg]30' N Lat., 71[deg]00' W Long.; and
(12) 43[deg]00' N Lat., 71[deg]00' W Long.
(13) Points 7 and 8 are connected following the coastline of Cape
Cod, MA.
(B) November-December River Herring Monitoring/Avoidance Sub-Area
2.
(1) 41[deg]30' N Lat., 72[deg]00' W Long.;
(2) 41[deg]30' N Lat., 70[deg]00' W Long.;
(3) 40[deg]30' N Lat., 70[deg]00' W Long.;
(4) 40[deg]30' N Lat., 70[deg]30' W Long.;
(5) 41[deg]00' N Lat., 70[deg]30' W Long.;
(6) 41[deg]00' N Lat., 72[deg]00' W Long.; and
(7) 41[deg]30' N Lat., 72[deg]00' W Long.
(g) All aspects of the following measures can be modified through
the specifications process:
(1) AMs;
(2) Possession limits;
(3) River Herring Monitoring/Avoidance Areas; and
(4) River herring catch caps.
0
11. In Sec. 648.202, paragraph (b) is added to read as follows:
Sec. 648.202 Season and area restrictions.
* * * * *
(b) Fishing in Northeast Multispecies Closed Areas. (1) No vessel
issued an Atlantic herring permit and fishing with midwater trawl gear,
may fish for, possess or land fish in or from the Closed Areas,
including Closed Area I, Closed Area II, Nantucket Lightship Closed
Area, Cashes Ledge Closure Area, Western GOM Closure Area, as defined
in Sec. 648.81(a) through (e), respectively, unless it has declared
first its intent to fish in the Closed Areas as required by Sec.
648.11(m)(1), and is carrying onboard a NMFS-approved observer.
(2) No vessel issued an Atlantic herring permit and fishing with
midwater trawl gear, when fishing any part of a midwater trawl tow in
the Closed Areas, may release fish from the codend of the net, transfer
fish to another vessel that is not carrying a NMFS-approved observer,
or otherwise discard fish at sea, unless the fish has first been
brought aboard the vessel and made available for sampling and
inspection by the observer, except in the following circumstances:
(i) The vessel operator has determined, and the preponderance of
available evidence indicates that, there is a compelling safety reason;
or
(ii) A mechanical failure precludes bringing some or all of the
catch on board the vessel for inspection; or,
(iii) The vessel operator determines that pumping becomes
impossible as a result of spiny dogfish clogging the pump intake. The
vessel operator shall take reasonable measures, such as strapping and
splitting the net, to remove all fish which can be pumped from the net
prior to release.
(3) Vessels may make test tows without pumping catch on board if
the net is re-set without releasing its contents provided that all
catch from test tows is available to the observer to sample when the
next tow is brought on board.
(4) If fish are released prior to being brought aboard the vessel
due to any of the above exceptions, the vessel operator must:
(i) Stop fishing and immediately exit the Closed Areas. Once the
vessel has exited the Closed Areas, it may continue to fish, but may
not fish inside the Closed Areas for the remainder of that trip.
(ii) Complete and sign a Released Catch Affidavit detailing the
vessel name and permit number; the VTR serial number; where, when, and
for what reason the catch was released; the estimated weight of each
species brought on board or released on that tow. A completed affidavit
must be submitted to NMFS within 48 hr of the end of the trip.
0
12. In Sec. 648.204, paragraph (b) is revised to read as follows:
Sec. 648.204 Possession restrictions.
* * * * *
(b) Each vessel working cooperatively in the herring fishery,
including vessels pair trawling, purse seining, and transferring
herring at-sea, must be issued a valid herring permit to fish for,
possess, or land Atlantic herring and are subject to the most
restrictive herring possession limit associated with the permits issued
to vessels working cooperatively.
0
13. Section 648.205 is revised to read as follows:
Sec. 648.205 VMS requirements.
The owner or operator of any limited access herring vessel or
vessel issued an Areas 2/3 Open Access Permit, with the exception of
fixed gear fishermen, must install and operate a VMS unit consistent
with the requirements of Sec. 648.9. The VMS unit must be installed on
board, and must be operable before the vessel may begin fishing.
Atlantic herring carrier vessels are not required
[[Page 8817]]
to have VMS. (See Sec. 648.10(m) for VMS notification requirements.)
0
14. In Sec. 648.206, paragraphs (b)(30) and (b)(31) are revised, and
paragraphs (b)(32) through (37) are added to read as follows:
Sec. 648.206 Framework provisions.
* * * * *
(b) * * *
(30) AMs;
(31) Changes to vessel trip notification and declaration
requirements;
(32) Adjustments to measures to address slippage, including
sampling requirements;
(33) River Herring Monitoring/Avoidance Areas;
(34) Provisions for river herring catch avoidance program,
including adjustments to the mechanism and process for tracking fleet
activity, reporting catch events, compiling data, and notifying the
fleet of changes to the area(s); the definition/duration of `test
tows,' if test tows would be utilized to determine the extent of river
herring catch in a particular area(s); the threshold for river herring
catch that would trigger the need for vessels to be alerted and move
out of the area(s); the distance that vessels would be required to move
from the area(s); and the time that vessels would be required to remain
out of the area(s).
(35) Changes to criteria/provisions for access to Northeast
Multispecies Closed Areas;
(36) River herring catch caps; and
(37) Any other measure currently included in the FMP.
* * * * *
[FR Doc. 2014-03179 Filed 2-12-14; 8:45 am]
BILLING CODE 3510-22-P