[Federal Register Volume 78, Number 37 (Monday, February 25, 2013)]
[Rules and Regulations]
[Pages 12625-12627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04261]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 121022572-3075-02]
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: Final rule.


SUMMARY: This action reduces the Atlantic herring 2013 sub-annual catch 
limits in herring management area 1A to account for catch overages in 
2011, and to prevent overfishing.

DATES: This rule is effective from March 27, 2013 through December 31, 

ADDRESSES: Copies of supporting documents, the 2010-2012 Herring 
Specifications and Amendment 4 to the Herring Fishery Management Plan 
(FMP) are available from: John K. Bullard, Northeast Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930. This document is also accessible via the 
Internet at http://www.nero.noaa.gov. NMFS prepared a Final Regulatory 
Flexibility Analysis (FRFA), which is contained in the Classification 
section of this rule. Copies of the FRFA and the Small Entity 
Compliance Guide are available from: John K. Bullard, Regional 
Administrator, National Marine Fisheries Service, Northeast Region, 55 
Great Republic Drive, Gloucester, MA 01930-2276, or via the internet at 

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 Herring FMP divides the stock-wide 
herring ACL (91,200 mt) among three management areas, one of which has 
two sub-areas. Area 1 is located in the Gulf of Maine (GOM) and 
consists of 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). 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 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 seasonal 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 also established an AM that 
provided for overage deductions. If the catch of herring in any given 
management area in any given fishing year exceeds any sub-ACL, the 
overage will subsequently be deducted from the corresponding management 
area sub-ACL in a subsequent fishing year. A range of additional AMs 
are currently being considered as a part of the 2013-2015 
specifications process. Until then, the current AMs, including the 
overage deduction addressed in this rule, are still in place.

Final Adjustment to the 2013 Annual Catch Limits

    The 2011 Atlantic herring fishing year began on January 1, 2011, 
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 final rule, the Atlantic 
herring 2013 specifications have not yet been finalized. The 2013-2015 
herring specifications are currently in development and will not 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, and again on November 19, 2012, and recommended 
herring acceptable biological catch (ABC) levels for 2013-2015. The 
Council expects to take final action at its January meeting, and a 
proposed and final rule for the 2013-2015 herring specifications will 
follow. Although the 2013 herring specifications will not 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 
to the following year(s) when new specifications are delayed past the 
start of the fishing year. Therefore, in accordance with regulations at 
Sec.  648.201(a)(3), this action deducts the 1,425-mt 2011 overage in 
Area 1A from the 2013 Area 1A sub-ACL. Since the 2012 herring 
specifications will be in place on January 1, 2013, this action adjusts 
the rolled over sub-ACL in Area 1A until the 2013-2015 specifications 
are finalized. As a result, NMFS is revising the sub-ACL for Area 1A 
from 26,546 mt to 25,121 mt (a reduction of 1,425 mt). When the 2013 
specifications are finalized, NMFS will deduct the 1,425-mt overage 
from the final 2013 Area 1A sub-ACL.

Comments and Responses

    NMFS received five comment letters on the proposed rule for this 
action from the following: The Cape Cod Commercial Hook Fishermen's 
Association (CCCHFA); Coalition for the Atlantic Herring Fishery's 
Orderly, Informed, and Responsible Long-Term Development (CHOIR); the 

[[Page 12626]]

Law Foundation (CLF) and Earthjustice, both on behalf of the Herring 
Alliance; and a member of the public.
    Comment 1: CCCHFA, CHOIR, CLF, and the member of the public 
commented in support of adjusting the 2013 Herring sub-ACL in Area 1A 
to account for catch overages in 2011.
    Response: NMFS agrees and is adjusting the 2013 Area 1A sub-ACL to 
account for 2011 Area 1A sub-ACL catch overages in this final rule.
    Comment 2: CCCHFA, Earthjustice, and CHOIR commented that the catch 
overage of 1,425 mt in Area 1A indicates that the current monitoring, 
reporting methods, and AMs in the Atlantic herring FMP are not 
sufficient to prevent sub-ACL overages.
    Response: The comment on NMFS's ability to adequately monitor catch 
in the herring fishery, and comments on the reporting methods and AMs 
in the Herring FMP are beyond the scope of this rulemaking, which 
simply implements the AM currently required under the Herring FMP. 
Nevertheless, NMFS believes the current reporting and monitoring 
methods and AMs are sufficient to adequately monitor the fishery on a 
real-time basis. However, NMFS recognizes the difficulties in 
monitoring high volume fisheries, such as the herring fishery, in which 
the fleet catches and lands large volumes of fish in a very short 
period of time. We currently monitor the herring quota using a 
combination of daily VMS reporting, weekly VTR reporting, and weekly 
dealer reporting. We recognize that VMS catch reports may be 
overestimate catch, and that data errors in catch reports, late 
reporting, or non-compliance have been a challenge to monitor the 
fishery in real-time. While we believe that the current reporting and 
monitoring methods are sufficient to adequately monitor this fishery on 
a real-time basis, it is imperative that vessels and dealers report 
catch and landings consistently and accurately. We are currently 
planning outreach meetings with the Atlantic herring industry to 
discuss ways to improve the accuracy of catch reporting to improve the 
timing of management area closures. In addition, for the 2013-2015 
herring specifications, the Council is considering a range of AMs to 
better ensure that herring catch does not exceed management area sub-
ACLs. Moreover, under the National Standard Guidelines at 50 CFR 
600.310(g)(3), if herring fishery exceeds the stockwide herring ACL, 
the stock's ACLs and AMs may be reexamined.
    Comment 3: Earthjustice and CHOIR commented that NMFS should modify 
the overage deduction AM so that NMFS deducts any sub-ACL overages from 
the following year's sub-ACL, instead of from the 2nd fishing year 
after the overage. CHOIR noted that waiting until two years after the 
catch overage to account for any sub-ACL overages could have a 
significant impact on the herring resource.
    Response: Like Comment 2, this comment on adjusting the AMs is 
beyond the scope of this rulemaking, which NMFS is implementing under 
the limited authority under the Herring FMP. AMs must be adjusted 
through a Council action, such as the 2013-2015 specifications or a 
future framework or amendment. This action is an inseason adjustment to 
the herring ACL. Because this is not a framework adjustment or 
    Furthermore, there is no evidence that accounting for sub-ACL 
overages in the year after determining the total catch has a 
significant adverse impact on the herring resource. For example, there 
is no evidence that a single year delay versus an immediate deduction 
the year following an overage affects the reproductive potential of the 
stock. Herring is a relatively long-lived species (over 10 years) and 
the fishery harvests multiple year classes. These characteristics 
suggest that the herring stock may withstand a single year delay in 
overage deductions. Moreover, the herring stock is neither overfished 
nor subject to overfishing at this time.
    Comment 4: Earthjustice criticized NMFS' discard accounting 
methodology for the herring fishery. Earthjustice believes that 
discards coded as ``fish not known (fish nk)'' contain substantial 
amounts of herring, which should have been included in the amount of 
Atlantic herring caught during the 2011 fishing year. In referenced 
prior comments, Earthjustice argues that counting ``fish nk'' as 
herring catch would change the amount of the overage and overage 
deduction. When calculating a herring discard estimate, they 
recommended that NMFS assume all ``fish nk'' discarded from limited 
access herring vessels are Atlantic herring and that the fleet-wide 
estimate of discarded ``fish nk'' should be added to the discard 
estimate of herring to calculate total herring discards in 2011.
    Response: NMFS calculated 2011 herring discards consistent with how 
it calculated discards in 2010, as recommended by the Herring Plan 
Development Team (PDT). Herring discards are estimated by dividing the 
amount of observed herring discards (labeled ``herring'' and ``herring 
not known (herring nk'') in observer haul logs) by the amount of all 
observed fish landed. NMFS then multiplies that discard ratio by the 
amount of all fish landed for each trip to calculate total amount of 
herring discards in 2011. If an observer verifies that fish are 
Atlantic herring, they code those fish as ``herring'' and if the 
observer identifies the fish as a type of herring but cannot verify 
species of herring, the observer codes those fish as ``herring nk.'' 
Only in the instance where an observer cannot verify species 
identification on discarded catch, does the observer code that discard 
event as ``fish nk.'' When developing the discard methodology, the 
Herring PDT concurred that NMFS should calculate the discard estimate 
for the herring based on the amount of observed ``herring'' and 
``herring nk'' and that it should not include discards coded as ``fish 
    NMFS does not believe it is appropriate to count discards coded as 
`fish nk' as Atlantic herring. Including `fish nk' discards in 
determining the amount of an overage would likely overstate the 
overage. `Fish nk' consists of a mix of multiple species and is not 
limited to Atlantic herring. And while excluding `fish nk' discards 
would likely understate the overage, any understatement would be an 
extremely small percentage of the sub-ACL for Area 1A. Total `fish nk' 
discards for the Atlantic herring fishery in 2011 are estimated at 510 
mt, equaling less than 1 percent of the 26,546 mt quota in Area 1A, and 
only a portion of those total discards occurred in Area 1A. Given these 
facts, we believe that when choosing between including all or including 
none of the `fish nk' discards, the better course is to not include 
`fish nk' discards.


    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this final rule is consistent with 
the Atlantic Herring FMP, other provisions of the MSA, and other 
applicable law.
    NMFS completed the National Environmental Policy Act analysis to 
support this action in Amendment 4 (76 FR 11373, March 2, 2011).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This final rule does not contain a 
collection-of-information requirement for purposes of the Paperwork 
Reduction Act.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act, 
has prepared a FRFA, included in the preamble of this final rule. The 
FRFA describes the economic impact that this final rule, along with 
other non-preferred alternatives, will have on small entities.

[[Page 12627]]

    The FRFA incorporates the economic impacts and analysis summaries 
in the IRFA, a summary of the significant issues, if any, raised by the 
public in response to the IRFA, and NMFS' responses to those comments. 
A copy of the IRFA, the RIR, and the EA are available upon request (see 

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 deducts 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, this action revises 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 
NMFS finalizes the 2013 herring specifications, it will deduct the 
1,425 mt from the final 2013 Area 1A sub-ACL.

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 Final Rule as a 
Result of Such Comments

    There were no issues related to the IRFA raised in public comments.

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

    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. In 2011, 93 
vessels were issued limited access herring permits, and 2,149 were 
issued open access herring permits.
    Total herring revenue in 2011 equaled approximately $22.4 million 
for limited access vessels, and $43,000 for open access vessels. NMFS 
estimates the reduced sub-ACL in Areas 1A 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 overall and per vessel is relatively minor, as 
compared with the fishery's overall revenue, and because it only 
affects one of the herring management areas.

Description of Projected Reporting, Recordkeeping, and Other Compliance 

    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action. In addition, 
there are no Federal rules that duplicate, overlap, or conflict with 
this rule.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impacts 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

    Amendment 4 analyzed the effects of deducting ACL/sub-ACL overages 
from the subsequent corresponding ACL/sub-ACL. During a year when the 
fishery exceeds the ACL/sub-ACL, fishery participants may benefit 
economically from higher catch. In the subsequent year, when NMFS 
deducts the amount of the overage 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: February 19, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-04261 Filed 2-22-13; 8:45 am]