[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Proposed Rules]
[Pages 67624-67626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27543]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 121022572-2572-01]
RIN 0648-XC318

Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Adjustment to 2013 Annual Catch Limits

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

ACTION: Proposed rule; request for comments.


SUMMARY: Through this action NMFS proposes to reduce the 2013 annual 
catch limits (ACLs) for the Atlantic herring (herring) fishery to 
account for catch overages in 2011 and to prevent overfishing.

DATES: Public comments must be received no later than 5 p.m., Eastern 
Standard Time, on December 13, 2012.

ADDRESSES: Copies of supporting documents, the 2010-2012 Herring 
Specifications and Amendment 4 to the Herring Fishery Management Plan 
(FMP) are available from: Paul J. Howard, Executive Director, New 
England Fishery Management Council, 50 Water Street, Mill 2, 
Newburyport, MA 01950, telephone (978) 465-0492. These documents are 
also accessible via the Internet at http://www.nero.nmfs.gov.
    You may submit comments, identified by NOAA-NMFS-2012-0197, by any 
one of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2012-0197 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
     Mail: NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope 
``Comments on Adjustment to 2013 Herring Catch Limits.''
     Fax: (978) 281-9135, Attn: Lindsey Feldman.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address) submitted voluntarily by the sender 
will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF formats 

FOR FURTHER INFORMATION CONTACT: Lindsey Feldman, Fishery Management 
Specialist, 978-675-2179, fax 978-281-9135.



    The New England Fishery Management Council (Council) developed 
herring specifications for 2010-2012, which were approved by NMFS on 
August 12, 2010 (75 FR 48874). The stock-wide herring ACL (91,200 mt) 
is divided among three management areas, one of which has two sub-
areas. Area 1 is located in the Gulf of Maine (GOM) and is divided into 
an inshore section (Area 1A) and an offshore section (Area 1B). Area 2 
is located in the coastal waters between Massachusetts and North 
Carolina, and Area 3 is on Georges Bank (GB). The herring stock complex 
is considered to be a single stock, but there are inshore (GOM) and 
offshore (GB) stock components. The GOM and GB stock components 
segregate during spawning and mix during feeding and migration. Each 
management area has its own sub-ACL to allow greater control of the 
fishing mortality on each stock component. The management area sub-ACLs 
established for 2010-2012 were: 26,546 mt for Area 1A, 4,362 mt for 
Area 1B, 22,146 mt for Area 2, and 38,146 mt for Area 3.
    Amendment 4 to the Herring FMP (Amendment 4) (76 FR 11373, March 2, 
2011) revised the specification-setting process, bringing the Herring 
FMP into compliance with ACL and accountability measure (AM) 
requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA). Under the FMP, if NMFS determines catch will 
reach 95 percent

[[Page 67625]]

of the sub-ACL allocated to a management area or seasonal period, then 
NMFS prohibits vessels from fishing for, possessing, catching, 
transferring, or landing more than 2,000 lb (907.2 kg) of herring per 
trip from that area or period. This AM slows catch to prevent or 
minimize catch in excess of a management area or seasonal period sub-
ACL. As a way to account for ACL overages in the herring fishery, 
Amendment 4 established an AM that provided for overage deductions. If 
the catch of herring in any given fishing year exceeds any ACL or sub-
ACL, the overage will subsequently be deducted from the corresponding 
ACL/sub-ACL. A range of reasonable alternatives to the current AMs will 
be considered as a part of the 2013-2015 specifications process. Until 
then, the current AMs, including the overage deduction addressed in 
this proposed rule, are still in place.
    Fishing year 2010 was the first year that NMFS monitored herring 
catch against the management area sub-ACLs. Herring catch from Areas 1B 
and 1A exceeded their 2010 allocations by 1,639 mt and 1,878 mt 
respectively. NMFS deducted the 2010 overages from the 2012 herring 
specifications in a final rule, which became effective on February 24, 
2012 (77 FR 10978). Due to the overages that occurred in 2010, NMFS had 
previously revised vessel reporting requirements to obtain more timely 
catch reports (76 FR 54385, September 1, 2011). Accordingly, limited 
access herring vessels are now required to report herring catch daily 
via vessel monitoring systems (VMS), open access herring vessels are 
required report catch weekly via the interactive voice response system 
(IVR), and all herring-permitted vessels are required to submit vessel 
trip reports (VTRs) weekly.
    The 2011 Atlantic herring fishing year began on January 1 and ended 
on December 31, 2011. Based on dealer, VTR, and observer data, 2011 
herring catch exceeded the sub-ACL in Area 1A by 1,425 mt. There were 
no sub-ACL overages in the other herring management areas. Therefore, 
NMFS is required to deduct the Area 1A overage in 2011 from the 2013 
Area 1A sub-ACL. At the time of this proposed rule, the Atlantic 
herring 2013 specifications have not yet been finalized. The 2013-2015 
herring specifications are currently in development and are not likely 
to be effective prior to the 2013 herring fishing year, which begins on 
January 1, 2013.
    The Council's Scientific and Statistical Committee (SSC) met on 
September 13, 2012, to recommend acceptable biological catch (ABC) 
levels for the herring fishery. The Council is expected to take final 
action at its November meeting, and a proposed and final rule will 
follow. Although the 2013 herring specifications won't be in place on 
January 1, 2013, the regulations at Sec.  648.200(d) include a 
provision that allows the previous years' specifications to roll over 
when the specifications are delayed past the start of the fishing year. 
Therefore, the 2012 herring specifications will be in place on January 
1, 2013, until the 2013-2015 specifications are finalized, and the 2011 
overage will be deducted initially from the 2011 herring 
specifications. Once the 2013-2015 specifications are final, the 2011 
overage will be deducted from that amount as part of the rulemaking for 
the 2013-2015 specifications.

Proposed Measures

    In accordance with regulations at Sec.  648.201(a)(3), this action 
proposes to deduct the 1,425-mt 2011 overage in Area 1A from the 2013 
Area 1A sub-ACL. Since the 2012 herring specifications will not be in 
place on January 1, 2013, this action proposes adjusting the rolled 
over sub-ACL in Area 1A until the 2013-2015 specifications are 
finalized. Therefore, on January 1, 2013, the sub-ACL for Area 1A would 
be revised from 26,546 mt to 25,121 mt (a reduction of 1,425 mt) to 
account for the 2011 catch overage. When the 2013 specifications are 
finalized, we will deduct the 1,425-mt overage from the final 2013 Area 
1A sub-ACL.
    NMFS determined 2011 herring landings based on dealer reports 
(Federal and state) containing herring purchases, supplemented with 
VTRs (Federal and State of Maine) containing herring landings. NMFS 
compared dealer reports to VTRs for all trips that landed herring in 
2011. Because VTRs are generally a hail weight or estimate of landings, 
with an assumed 10 percent margin of error, dealer reports are a more 
accurate source of landings data. However, if the amount of herring 
reported via VTR exceeded by 10-percent or more the amount of herring 
reported by the dealer, it was assumed that the dealer report for that 
trip was in error. In those instances, the amount of herring reported 
via VTR was used to determine the amount of herring landed on that 
trip. Herring landings in the VTR database were checked for accuracy 
against the scanned image of the paper VTRs submitted by the owner/
operator of the vessel. VTR landings were also verified by comparing 
reported landings to harvesting potential and applicable possession 
limits for each vessel. Federal dealer reports and state reports for 
2011 were finalized in June 2012.
    Herring landings reported on VTRs were assigned to herring 
management areas using latitude and longitude coordinates. VTRs with 
missing or invalid latitude/longitude coordinates were manually 
corrected using the statistical area reported on the VTR. If no 
statistical area was reported on the VTR, then a combination of recent 
fishing activity and a review of the scanned images of the original VTR 
were used to assign landings to a herring management area. Dealer 
reports without corresponding VTRs were prorated to a herring 
management area using the proportion of total herring landings 
stratified by week, gear type, and management area.
    NMFS resolved data errors resulting from misreporting. This was 
done by reviewing the 2011 herring data, and comparing VMS daily catch 
reports. Common dealer reporting issues included: Missing dealer 
reports; incorrect or missing VTR serial numbers; incorrect or missing 
vessel permit numbers; and misidentification of pair trawling vessels 
landing catch. VMS daily catch reports and VTRs had similar errors. 
Common VMS daily catch report errors included: Missing reports; data 
entry mistakes (including too many or not enough zeros); and missing 
kept all data reported by haddock stock area. Common VTR reporting 
issues included: Missing VTRs; missing or incorrect dealer information; 
incorrect amounts of landed herring; incorrect dates; and missing or 
incorrect statistical area. The quality of herring landings data is 
affected by unresolved data errors; therefore, NMFS strongly encourages 
vessel owner/operators and dealers to double check reports for accuracy 
and ensure reports are submitted on a timely basis.
    Discards of herring in 2011 were determined by extrapolating 
Northeast Fisheries Observer Program (observer) data to the entire 
herring fishery. The amount of observed herring discards (``Atlantic 
herring'' and ``herring unknown'') was divided by the amount of 
observed fish (all species) landed. That discard ratio was then 
multiplied by the amount of all fish landed for each trip to calculate 
total amount of herring discards in 2011. The amount of discards was 
determined for each management area and gear type. Observer data for 
2011 were finalized on March 30, 2012.
    NMFS calculated the total herring catch for 2011 by adding the 
amount of herring landings to the amount of

[[Page 67626]]

herring discarded. The methodology used by NMFS to calculate the amount 
of landed herring and the amount of discarded herring was reviewed and 
approved by the Council's Herring Plan Development Team (PDT) in August 
2012. The final 2011 herring catch data differs from the catch data 
presented on the NOAA Fisheries Northeast Regional Office Web page 
(www.nero.noaa.gov) at the end of the 2011 fishing year due to 
differences in real-time quota monitoring and end of the year 
accounting methods. Herring catch was monitored in real time using 
weekly IVR reports supplemented with dealer data until September 8, 
2011, when the VMS catch reports were required for limited access 
vessels. From September 8, 2011, through the remainder of the fishing 
year, herring catch was monitored in real-time using daily VMS catch 
reports for limited access herring vessels, and IVR reports for open 
access vessels. While using daily VMS catch reports are crucial for 
monitoring high volume fisheries such as the herring fishery in real-
time, the final 2011 herring catch estimates used a combination of 
dealer and VTR data, which tends to have fewer errors and is more 
accurate. In addition, the year-end accounting method includes any late 
reported landings. Therefore, the final 2011 herring catch estimates 
can differ (sometimes significantly) from the real-time estimates shown 
on the NOAA Fisheries Northeast Regional Office Web site.
    The following chart contains information on the 2011 herring 

                                     Total Catch of Atlantic Herring in 2011
                                                                                                   Herring catch
         Management area           Sub-ACL (mt)       Landed         Discarded     Total herring   as percentage
                                                   herring (mt)    herring (mt)     catch (mt)      of sub-ACL
1A..............................          26,546          30,621              55          30,676             105
1B..............................           4,362           3,528               2           3,530              81
2...............................          22,146          14,919              81          15,001              68
3...............................          38,146          36,966              71          37,038              97


    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
the Atlantic Herring FMP, other provisions of the MSA, and other 
applicable law, subject to further consideration after public comment.
    The National Environmental Policy Act analysis to support this 
action was completed in Amendment 4 (76 FR 11373, March 2, 2011).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. This proposed rule does not contain 
a collection-of-information requirement for purposes of the Paperwork 
Reduction Act.
    The Council prepared an IRFA, as required by section 603 of the 
Regulatory Flexibility Act (RFA) in the Environmental Assessment for 
Amendment 4. The IRFA describes the economic impact that herring 
accountability measures, including overage deductions, would have on 
small entities. A summary of the analysis and additional analysis on 
the economic impact of this proposed rule follows. A copy of the 
Amendment 4 analysis is available from the Council or NMFS (see 
ADDRESSES) or via the Internet at http://www.nero.noaa.gov.

Statement of Objective and Need

    In 2011, there was a herring catch limit overage in herring 
management area 1A equal to 1,425 mt. In accordance with regulations at 
Sec.  648.201(a)(3), this action proposes to deduct the 2011 management 
Area 1A overage from the 2013 management Area 1A catch limits. Since 
the 2013 specifications will not be finalized by January 1, 2013, and 
the 2012 specifications will be in place at the start of the herring 
fishing year, NMFS proposes to revise the rolled over sub-ACL for Area 
1A for 2013 from 26,546 mt to 25,121 mt to account for 2011 the catch 
overage. When the 2013 herring specifications are finalized, NMFS will 
deduct the 1,425 mt from the final 2013 Area 1A sub-ACL.

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

    In 2011, 93 vessels were issued limited access herring permits, and 
2,149 were issued open access herring permits. All participants in the 
herring fishery are small entities as defined by the SBA under the 
Regulatory Flexibility Act, as none grossed more than $4 million 
annually, so there would be no disproportionate economic impacts on 
small entities.
    Total herring revenue in 2011 equaled approximately $22.4 million 
for limited access vessels and $43,000 for open access vessels. The 
reduced sub-ACL in Areas 1A is estimated to equal approximately 
$400,000 in lost revenue for the fishery in 2013. While this action 
reduces the amount of fish available for harvest, both the fishery-wide 
and individual-vessel economic effects are anticipated to be minimal, 
because the reduction is relatively minor, as compared with the 
fishery's overall revenue, and because it only affects one of the 
herring management areas.

Minimizing Significant Economic Impacts on Small Entities

    Amendment 4 analyzed the effects of deducting ACL/sub-ACL overages 
from the subsequent corresponding ACL/sub-ACL. During a year when the 
ACL/sub-ACL is exceeded, fishery participants may benefit economically 
from higher catch. In the subsequent year, when the amount of the 
overage is deducted from that ACL/sub-ACL and the amount of harvest is 
lower, fishery participants may experience negative economic impacts. 
Since the participants in the fishery from year to year vary, there 
could be a minor economic impact on the fishery participants operating 
in Area 1A in 2013 due to the overage deduction from 2011.

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

    Dated: November 7, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
National Marine Fisheries Service.
[FR Doc. 2012-27543 Filed 11-9-12; 8:45 am]