[Federal Register Volume 78, Number 193 (Friday, October 4, 2013)]
[Rules and Regulations]
[Pages 61828-61838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24271]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130408348-3835-02]
RIN 0648-BD17

Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Framework Adjustment 2 and Specifications

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

ACTION: Final rule.


SUMMARY: NMFS is implementing Framework Adjustment 2 to the Atlantic 
Herring Fishery Management Plan (Framework 2) and the 2013-2015 fishery 
specifications for the Atlantic herring fishery (2013-2015 
specifications). Framework 2 allows the New England Fishery Management 
Council (Council) to split annual catch limits seasonally for the four 
Atlantic herring management areas, and the carryover of unharvested 
catch, up to 10 percent for each area's annual catch limit. The 
specifications set catch specifications for the herring fishery for the 
2013-2015 fishing years and establish seasonal splits for management 
areas 1A and 1B as recommended to NMFS by the Council.

DATES: Effective September 30, 2014.

ADDRESSES: Copies of supporting documents used by the Council, 
including the Environmental Assessment (EA) 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, Mill 2, Newburyport, MA 01950, 
telephone (978) 465-0492. The EA/RIR/IRFA is also accessible via the 
Internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, (978) 281-9272, fax (978) 281-9135.



    NMFS published a proposed rule for Framework 2 and the 2013-2015 
specifications (Framework 2/2013-2015 Specifications) on August 2, 2013 
(78 FR 46897). The comment period on the proposed rule ended on 
September 3, 2013. NMFS received five comments, which are summarized in 
the ``Comments and Responses'' section of this final rule.
    Regulations implementing the Atlantic Herring Fishery Management 
Plan (FMP) for herring appear at 50 CFR part 648, subpart K. The 
regulations at Sec.  648.200 require the Council to recommend herring 
specifications for NMFS's review and proposal in the Federal Register, 
including the overfishing limit (OFL), acceptable biological catch 
(ABC), annual catch limit (ACL), optimum yield (OY), domestic annual 
harvest (DAH), domestic annual processing (DAP), U.S. at-sea processing 
(USAP), border transfer (BT), the sub-ACL for each management area, 
including seasonal periods as allowed by Sec.  648.201(d) and 
modifications to sub-ACLs as allowed by Sec.  648.201(f), and the 
amount to be set aside for the research set aside (RSA) (3 percent of 
the sub-ACL from any management area) for up to 3 years.
    The 2013-2015 herring specifications are based on the provisions 
currently in the FMP, and provide the necessary elements to comply with 
the ACL and accountability measure (AM) requirements of the Magnuson-
Stevens Fishery Conservation and Management Act (MSA). This action also 
includes measures in Framework 2 to the FMP.

Framework 2 Measures

    The regulations implementing Framework 2 allow seasonal splits of 
sub-ACLs for all herring management areas through the specifications 
process. The FMP already authorizes seasonal splits of the Area 1A sub-
ACL. The sub-ACL splitting under Framework 2 allows seasonal control of 
fishing effort and harvest in management areas by specifying the 
percent of the sub-ACL available for harvest. The fishing year (FY) 
2013-2015 specifications include the following seasonal splits:
    Area 1A: 100 percent of the sub-ACL available for harvest during 
June-December (none of the sub-ACL is available for harvest during 
January through May); and Area 1B: 100 percent of the sub-ACL available 
for harvest during May-December (none of the sub-ACL is available for 
harvest during January through April).
    Framework 2 also allows the carryover of unharvested catch, up to 
10 percent of each sub-ACL, provided the stock-wide catch did not 
exceed the stock-wide ACL. This measure allows a sub-ACL increase for a 
management area, but it does not allow a corresponding increase to the 
stock-wide ACL. Overall harvest would therefore remain constrained by 
the stock-wide ACL. Consequently, the fleet would be required to forego 
harvest in

[[Page 61829]]

one or more management areas in order to harvest the carryover 
available in an area. This measure maintains the management uncertainty 
buffer between ABC and the stock-wide ACL, while giving the fleet some 
flexibility in choosing where to harvest the stock-wide ACL.
    Under this measure, NMFS will allocate carryover in the second year 
after the applicable year ends. The interim year is necessary because 
the herring fishery can be active up to the end of December, and NMFS 
cannot finalize herring catch data until about 6 months after the end 
of the FY. Therefore, NMFS will apply carryover from FY 2013 in FY 
2015, for example.

2013-2015 Herring Specifications

    The Gulf of Maine-Georges Bank herring stock complex is a 
transboundary stock that is found in both U.S. and Canadian waters. The 
2012 Stock Assessment Review Committee of the 54th Northeast Regional 
Stock Assessment Workshop estimated the 2011 herring biomass at 517,930 
mt (biomass supporting maximum sustainable yield (BMSY) = 
157,000 mt) and the 2011 fishing mortality rate (F) at 0.14 
(FMSY (0.27)). Because the herring stock complex is above 
\1/2\ BMSY and the F is below FMSY, the stock is 
not overfished and overfishing is not occurring. This assessment 
increased natural mortality rates for 1996-2011 by 50 percent to 
resolve a retrospective pattern and ensure rates take into account 
estimated consumption of herring in the ecosystem.
    On March 9, 2012, in Flaherty v. Bryson, 850 F. Supp.2d 38 (D.D.C. 
2013) U.S. District Court for the District of Columbia (Court) found 
that the EA for Amendment 4 to the FMP did not analyze a reasonable 
range of alternatives for an ABC control rule or AMs. On August 2, 
2012, the Court ordered NMFS to recommend that the Council consider an 
adequate range of alternatives for AMs and an ABC control rule based on 
the best available science for setting ABC control rules for herring 
and other forage fish. Therefore, in an August 31, 2012, letter to the 
Council, NMFS strongly recommended that the Council analyze a range of 
alternatives for an ABC control rule that consider Atlantic herring's 
role as forage and AMs as part of the 2013-2015 herring specifications.
    On September 12, 2012, the Council's Scientific and Statistical 
Committee (SSC) considered various approaches for an ABC control rule. 
The SSC considered the ABC approaches examined by the Herring Plan 
Development Team (PDT), including considering the forage aspects of 
Atlantic herring, discussed other possible approaches, and agreed to 
support both PDT approaches as alternatives for ABC and the ABC control 
rule for 2013-2015 as the most appropriate for management at this time. 
The first approach sets ABC for all 3 years based on 75 percent 
FMSY. The second approach sets ABC at the same level for all 
3 years, which has a no greater than 50-percent probability of 
exceeding FMSY in 2015. The SSC concluded that these two 
approaches for setting ABC are nearly equivalent from a biological 
perspective, as they are expected to produce similar spawning stock 
biomass values for the herring stock in 2015. The SSC also determined 
that the two control rules would likely meet ecosystem-based targets 
for a forage species because they incorporated a major advance in 
accounting for natural mortality in the herring stock, which takes into 
account herring's role as forage in the ecosystem. The Council's 
Herring Oversight Committee met on September 20, 2012, to discuss the 
SSC's ABC and control rule recommendations, and to develop additional 
herring specifications (e.g., ACL, OY, RSA) based on that advice.
    At its September 26, 2012, meeting, the Council considered the 
SSC's recommendations for an ABC control rule. Based on advice from its 
scientific advisors, the SSC, the Council selected the ``constant 
catch'' ABC control rule as its preferred alternative. This rule 
provides consistency and potential stability to fishing industry 
operations and an opportunity for providing a steady supply of catch to 
the market. At the same time, it maintains a low probability of 
overfishing or the stock being overfished.
    Following the Council meeting, Earthjustice (representing the 
plaintiffs in the litigation on Amendment 4) sent a letter to the 
Council commenting that the Council's consideration of ABC control 
rules is not consistent with the Court order to evaluate an ABC control 
rule for forage fish. Earthjustice provided two additional forage fish 
ABC control rules for the Council to consider: One based on the Lenfest 
Forage Fish Report; and the other used by the Pacific Fishery 
Management Council for coastal pelagic species. As a result, the 
Herring PDT reviewed these two additional forage fish ABC control rules 
at its October 18, 2012, meeting. After considering and discussing 
these ABC control rules, the Herring PDT recommended to the Council 
that: (1) These two additional ABC control rules may not be appropriate 
for herring; and (2) the SSC should evaluate the applicability of these 
control rules for herring at its November 19, 2012, meeting, both for 
the 2013-2015 specifications and for long-term management.
    The Council also requested that the SSC evaluate the two additional 
ABC control rules recommended by Earthjustice. In considering the 
Lenfest and Pacific Council control rules in preparation for the SSC 
review, the Herring PDT expressed concern about adopting either of 
these control rules in the 2013-2015 specifications package. The 
Herring PDT stated that either would represent a significant change in 
management strategy, which may not be consistent with the Council's 
management regime or the underlying stock assessment advice, and that 
adopting such a rule would require consideration of a number of factors 
not appropriate to the specifications process (i.e., such a potentially 
significant deviation from the current management regime would be 
better considered in a Council amendment to the FMP).
    The SSC carefully considered the additional two control rules it 
was asked to review, and concluded that forage fish control rules based 
on the Lenfest and Pacific Council models would yield short-term 
biomass projections for 2013-2015 that are very similar to their 
previous ABC control rule recommendations (i.e., 75 percent of 
FMSY and constant catch control rules) (see Appendix II of 
the EA for the specifications). The SSC concluded that the 75-percent 
and constant catch control rules that it had already recommended to the 
Council are consistent with the intent of control rules recommended by 
Earth Justice. According to the SCC, the recommended control rules 
acknowledge that herring is an important forage species, take that into 
account, and allow for sufficient biomass through 2015 to support 
ecosystem considerations, including herring's forage role in the 
ecosystem. The SSC also noted that there are substantial differences 
between the Lenfest and Pacific Council control rules, and that 
considerably more analysis would be necessary to determine the 
suitability of applying forage fish control rules like the Lenfest and 
Pacific Council approaches to Atlantic herring in the future. The SSC 
concluded that it did not have sufficient information to evaluate the 
performance of the additional control rules for issues including 
predator-prey models, the relationship between MSY and changing natural 
mortality rates due to changes in consumption, and unintended

[[Page 61830]]

consequences of treating forage species differently than other managed 
species. As a result, the SSC recommended to the Council that control 
rules for forage species such as the Lenfest and Pacific pelagics 
control rules should receive further evaluation prior to any potential 
implementation as a long-term strategy for managing herring. Based on 
the SSC's recommendations, the Council determined that the 75-percent 
and constant catch control rules adequately account for herring's role 
as forage (and would yield similar results to short-term application of 
specific forage fish control rules) and that consideration of other 
approaches for the long term will require additional analyses of the 
appropriate multiple reference points, that should be evaluated in a 
full Council amendment to the FMP. Section ``Additional 
Alternatives for ABC Control Rule'' in the EA fully explains the 
Council's rationale for considering and rejecting these forage fish 
control rule alternatives as part of the specifications. NMFS agrees 
that the Council's control rule for this action, which is based on the 
SSC's scientific advice, is the most appropriate approach at this time. 
NMFS also agrees with the Council's conclusions that the Council should 
further consider a more specific forage fish control rule, including a 
consideration of the implications of forage control rules on other 
components of the ecosystem and on the biological reference points for 
herring. NMFS has urged the Council to consider this in the context of 
an amendment to the FMP to potentially be used when developing the 
2016-2018 specifications.
    The 2013-2015 specifications also address the Court order relative 
to AMs for the herring fishery. Due to some recent challenges 
monitoring the herring fishery, NMFS provided specific AM 
recommendations to the Council in a letter dated January 23, 2013. 
Herring catch exceeded one or more management area sub-ACLs in 2010 and 
2011, and preliminary data indicate that 2012 catch exceeded three 
management area sub-ACLs, as well as the stock-wide ACL. This reflects 
in the challenge of monitoring this high volume fishery, in which the 
fleet catches and lands large volumes of fish in a very short period of 
time. NMFS currently monitors herring catch using a combination of 
daily electronic vessel reports, weekly vessel trip reports, and weekly 
dealer reports. Data errors in catch reports, late reporting, or non-
compliance have adversely affected monitoring the fishery in real-time.
    As a result, in a letter dated January 23, 2013, NMFS recommended 
that the Council revise its management area closure measure to be more 
precautionary (close the directed fishery when 92 percent, rather than 
95 percent, of the area's sub-ACL is projected to be harvested) and 
adopt a measure that would close the directed fishery in all management 
areas when 92 percent of the stock-wide ACL is projected to be 
harvested. Additionally, the letter recommended that the Council 
maintain the current pound-for-pound overage deduction measure 
(allowing for an interim year to verify and finalize catch data) and 
that it not revise the overage deduction measure so that it would only 
require overage deductions when catch exceeded 105 percent of a 
management area sub-ACL.
    The Council considered a range of AM alternatives for the herring 
fishery to help prevent ACL overages and account for overages when they 
do occur. The Council recommended revising the existing management area 
closure measure by lowering the directed herring fishery (landings 
>2,000 lb) closure trigger in a management area from 95 percent to 92 
percent of the area's sub-ACL. The Council also recommended 
establishing a new AM that would close the entire directed herring 
fishery when 95 percent of the stock-wide ACL is harvested. Both of 
these measures would help prevent sub-ACL and stock-wide ACL overages 
that the fishery has experienced in 2010, 2011, and possibly 2012. 
Lastly, after considering a range of less precautionary overage 
deduction measures, the Council recommended maintaining the current 
overage deduction measure. This measure allows for an interim year to 
verify and finalize herring catch data before deducting overages from 
the sub-ACL and/or stock-wide ACL where the overage occurred, 
consistent with the carryover provision.
    At its January 29, 2013, meeting, the Council recommended the 2013-
2015 specifications for the herring fishery. This final rule implements 
the herring specifications as recommended by the Council as detailed in 
Table 1 below. For 2013-2015, the Council may annually review these 
specifications and recommend adjustments if necessary.

                    Table 1--2013-2015 Specifications
           Atlantic Herring Specifications (mt) for 2013-2015
Overfishing Limit.........................  2013--169,000.
Allowable Biological Catch................  114,000.
Optimum Yield/Annual Catch Limit..........  107,800.
Domestic Annual Harvest...................  107,800.
Border Transfer...........................  4,000.
Domestic Annual Processing................  103,800.
U.S. At-Sea Processing....................  0.
Area 1A Sub-ACL...........................  29,775.*
Area 1B Sub-ACL...........................  4,600.
Area 2 Sub-ACL............................  30,000.
Area 3 Sub-ACL............................  42,000.
Fixed Gear Set-Aside......................  295.
Research Set-Aside........................  3 percent of each sub-ACL.
* This value was reduced by 1,425 mt from 31,200 mt to 29,775 mt to
  account for an overage in 2011.

    Consistent with the SSC's advice, the Council recommended changing 
the OFL from 127,000 mt in 2012 to 169,000 mt in 2013, 136,000 mt in 
2014, and 114,000 mt in 2015, and increasing the herring ABC from 
106,000 mt in 2010-2012 to a constant level of 114,000 mt for 2013-
2015. The Council believes that the buffer between OFL and ABC is 
reflective of scientific uncertainty. Reductions for additional sources 
of scientific uncertainty (e.g., biomass projections, recruitment, 
forage/natural mortality) were not recommended. OY may not exceed OFL 
and may be reduced by social, economic, or ecological factors. The 
Council did not recommend any additional buffers for 2013-2015, so OY 
is set equal to ACL. Herring regulations (Sec.  648.200(b)(3)) specify 
that the ACL is less than or equal to ABC minus expected catch in the 
New Brunswick weir fishery and the uncertainty around discard estimates 
of herring caught in Federal and state waters. The Council recommended 
a 6,200-mt deduction for New Brunswick weir catch based on recent 
performance in that fishery. Because state-only catch and herring 
discards are tracked against the ACL, the Council did not recommend any 
additional buffer between ABC and ACL to account for the uncertainty 
around discard estimates.
    Regulations at Sec.  648.201(f) state that if NMFS determines that 
the New Brunswick weir fishery landed less than 9,000 mt through 
October 15, NMFS shall allocate an additional 3,000 mt to the Area 1A 
sub-ACL in November. Because the Council recommended, and this action 
proposes, a much smaller deduction for New Brunswick weir catch (6,200 
mt) for 2013-2015 than in past years, the previous requirement to

[[Page 61831]]

allocate additional harvest to Area 1A if catch in the New Brunswick 
weir fishery is less than 9,000 mt is not appropriate for 2013-2015. 
Therefore, this action removes that requirement.
    BT is a processing allocation available to Canadian transport 
vessels and dealers. The MSA provides for the issuance of permits to 
Canadian vessels transporting U.S.-harvested herring to Canada for 
sardine processing. The Council recommended setting the specification 
for BT at 4,000 mt. The amount specified for BT has equaled 4,000 mt 
since 2000. As there continues to be Canadian interest in transporting 
herring for sardine processing, the specification for BT remains 
    The FMP specifies that DAH will be set less than or equal to OY and 
is comprised of DAP and BT. Consistent with the specifications for OY, 
the Council recommended setting the DAH at 107,800 mt for 2013-2015. 
DAH should reflect the actual and potential harvesting capacity of the 
U.S. herring fleet. Since 2001, total landings in the U.S. fishery have 
decreased, averaging 93,792 mt over the time series. Herring landings 
from the most recent 5-year period (2007-2011) averaged 86,373 mt. DAP 
is the amount of U.S. harvest that is processed domestically, as well 
as herring that is sold fresh (i.e., bait). DAP is calculated by 
subtracting BT from DAH. Using this formula, the Council recommended 
setting DAP at 103,800 mt. NMFS concurs that the U.S. herring fishery 
has the capacity to harvest and process the DAH and DAP recommended by 
the Council, so this final rule sets DAH at 107,800 mt and DAP at 
103,800 mt for 2013-2015.
    A portion of DAP may be specified for the at-sea processing of 
herring in Federal waters. When determining the USAP specification, the 
Council considers the availability of shore-side processing, status of 
the resource, and opportunities for vessels to participate in the 
herring fishery. During FY 2007-2009, the Council maintained a USAP 
specification of 20,000 mt (Areas 2/3 only) based on information 
received about a new at-sea processing vessel that intended to utilize 
a substantial amount of the USAP specification. At that time, landings 
from Areas 2 and 3--where USAP is authorized--were considerably lower 
than allocated sub-ACLs (formerly TACs) for each of the past several 
years. Moreover, the specification of 20,000 mt for USAP did not 
restrict either the operation or the expansion of the shoreside 
processing facilities during FY 2007-2009. However, the at-sea 
processing operation never materialized, and none of the USAP 
specification was used during FY 2007-2009. Consequently, the Council 
set USAP at zero for FY 2010-2012. The Council has not received any 
information that would suggest changing this specification for FYs 
    This final rule establishes a 3-percent herring research set-aside 
(RSA) for all management areas for fishing years 2014-2015. The RSA was 
established in Amendment 1 (0-3 percent for any management area). The 
herring RSA set-aside is removed from each sub-ACL prior to allocating 
the remaining sub-ACL to the fishery. If a proposal is approved, but a 
final award is not made by NMFS, or if NMFS determines that the 
allocated RSA cannot be utilized by a project, NMFS shall reallocate 
the unallocated or unused amount of the RSA to the respective sub-ACL, 
in accordance with the Administrative Procedure Act (APA), provided 
that the additional catch can be available for harvest before the end 
of the FY for which that RSA is specified. Herring regulations (Sec.  
648.201(g)) specify that up to 500 mt of the Area 1A sub-ACL shall be 
allocated for the fixed gear fisheries in Area 1A (weirs and stop 
seines) that occur west of 44[deg] 36.2 N. Lat. and 67[deg]16.8 W. 
Long. This set-aside shall be available for harvest by the fixed-gear 
within the specified area until November 1 of each year; any unused 
portion of the allocation will be restored to the Area 1A sub-ACL after 
November 1. During 2010-2012, the fixed gear set-aside was specified at 
295 mt. Because the Area 1A sub-ACL for 2013-2015 is not substantially 
different from the Area 1A sub-ACL in 2012, the Council recommended 
that the fixed gear set-aside remain the same. This final rule sets the 
fixed gear set-aside at 295 mt for 2013-2015.

Comments and Responses

    NMFS received five comment letters on the proposed rule for 
Framework 2/2013-2015 Specifications from: A tuna fisherman from Maine; 
Cape Seafoods, Inc. and Western Sea Fishing, Inc. (two related herring 
processing and fishing businesses hereafter referred to as Cape 
Seafoods/Western Sea); the Cape Cod Commercial Fishermen's Alliance 
(CCCFA), a Cape Cod, MA, fishing community-based organization that 
seeks to protect ecosystems and promote fishing businesses; and 
Earthjustice, a non-profit public interest law organization dedicated 
to protecting the environment and defending people's rights to a 
healthy environment (Earthjustice, earthjustice.org). Earthjustice 
wrote two letters: one was on behalf of Michael Flaherty, Alan 
Hastbacka, and the Ocean Rivers Institute, the plaintiffs in the 
Flaherty legal challenge of Amendment 4 to the Herring FMP, and the 
other was on behalf of the Herring Alliance, an environmental 
organization that formed to protect and restore ocean wildlife and 
ecosystems in the northeast United States by reforming the Atlantic 
herring fishery (Herring Alliance, herringalliance.org). Earthjustice's 
two letters raised nearly identical issues on behalf of its clients. 
The summary of comments below includes Earthjustice's comments combined 
for its two clients except when the issue raised in one letter or the 
other is distinct.
    Comment 1: The tuna fisherman expressed concern that herring 
midwater trawl and purse seine vessels are having a severe negative 
impact on herring abundance in the Gulf of Maine. He stated that, once 
herring vessels arrive, the herring are gone. He stated that this is 
having negative impacts on cod, birds, whales, and other animals in the 
Gulf of Maine that rely on herring as a source of food. CCCFA commented 
that it feels strongly that a robust forage base is necessary for the 
health of all our fish stocks, particularly New England's depleted 
groundfish stocks, and that the organization has long been concerned 
with the high-volume herring fishery's direct and indirect impacts on 
other fisheries. CCCFA and Earthjustice urged the continued evaluation 
of ABC control rules intended specifically for forage fish for possible 
inclusion in the next appropriate action.
    Response: NMFS agrees that the Council should further consider 
catch control rules for herring that take into account herring's role 
as forage in the ecosystem. NMFS has asked the Council, in a letter 
dated August 29, 2013, to consider this, to the extent possible, prior 
to developing the next specifications for the herring fishery. The 
control rule implemented by these specifications, however, is based on 
a major advancement in accounting for herring's role as forage in the 
ecosystem. The Council's SSC concluded that the resulting catch levels 
established by these specifications allow for sufficient biomass to 
support ecosystem considerations, including herring's role as forage.
    Comment 2: The tuna fisherman urged NMFS to monitor herring vessels 
at sea and at the dock.
    Response: NMFS will continue to monitor the herring fishery through 
fishery observers, and vessel and dealer reports. NMFS cannot implement 
enhanced monitoring measures without further Council action. The 
Council would have to consider measures to implement dockside 
monitoring in an

[[Page 61832]]

amendment to the FMP, not through a specifications action. Previously, 
the Council removed consideration of dockside monitoring from Amendment 
5 to the FMP. This is a complex issue due to funding and administration 
of such a program, but one that the Council may reconsider in a future 
    Observer coverage levels can be determined outside of the Council 
process by NMFS, and NMFS currently monitors herring vessels at sea 
through the Northeast Fisheries Observer Program (Observer Program) 
consistent with coverage required by the Standard Bycatch Reporting 
Methodology (SBRM). Coverage rates in the herring fishery vary by area 
and gear. In 2012, the Observer Program observed approximately 16 
percent of purse seine, 18 percent of paired midwater trawl, 6 percent 
of single midwater trawl, and 5 percent of bottom-trawl herring trips 
in Area 1A (inshore Gulf of Maine). Coverage levels in other areas in 
2012 were higher for some gears, including approximately 37 percent of 
paired midwater trawl trips in Area 1B (offshore Gulf of Maine) and 75 
percent of paired midwater trawl trips in Area 3 (Georges Bank). 
Combined, this level of coverage was sufficient under SBRM to monitor 
bycatch in this fishery.
    Comment 3: Cape Seafoods/Western Sea expressed concerns about the 
delay in implementing the specifications past January 1, 2013, and 
increasingly late in 2013. The stockwide ACL and sub-ACLs all will 
increase under the new specifications, and the representative was 
concerned that the increased catch will not be available before the 
current lower catch levels are harvested and the fishery closed in the 
various management areas.
    Response: NMFS shares these concerns. For the 2013-2015 
specifications, the Council took final action in January 2013 and 
submitted its first version of the action in March 2013. NMFS and the 
Council went through a substantial amount of work to complete the EA 
that supports the Council's recommendations. The Council's final 
submission was in July 2013, and NMFS proceeded with a proposed rule 
quickly with an August 2, 2013, publication. Through this rule, NMFS is 
putting the specifications in place as soon as possible and will be 
considering re-opening any herring management areas that closed due to 
herring catch under the lower rollover 2013 catch limits that can be 
reopened under the higher 2013 catch limits implemented through this 
final rule.
    Comment 4: Cape Seafoods/Western Sea supported the seasonal control 
of fishing effort in the herring fishery through percentage allocated 
by season, but opposed splitting seasons in Areas 2 and 3, and delaying 
herring fishing in Area 1B until May (through the zero-percent 
allocation in January through April).
    Response: The comment provided no basis for opposing the Council's 
recommended and proposed seasonal splits for the herring management 
areas. The Council's justification for the measure is that the proposed 
seasonal sub-ACL split for Areas 1A and 1B would slow fishing effort by 
spreading it through the year, reducing the probability that the entire 
sub-ACL would be caught early in the fishing year. The Council noted 
that this may allow the fishery to maximize opportunities when market 
conditions may be more favorable. The Council noted that the seasonal 
split proposed for Area 1A is already in the FMP and has been effective 
for years through the Atlantic States Marine Fisheries Commission's 
(ASMFC's) days-out restrictions. The Council noted that the Area 1B 
sub-ACL is relatively small, and the fishery has exceeded the sub-ACL 
in that area in recent years. The split in Area 1B is intended, in 
part, to address this problem. NMFS agrees with this rationale, and 
also notes that the Council did not select seasonal allocation splits 
for Areas 2 and 3. If the Council considers such splits in the future, 
the Council would analyze the proposed splits as part of the 
appropriate specifications action. The herring industry and others 
interested in herring fishery management would have the opportunity to 
participate in the development of those actions.
    Comment 5: Cape Seafoods/Western Sea supported carryover of sub-
ACL, but urged NMFS to allow more than 10 percent of the sub-ACLs to be 
carried over because it believes sufficient buffers are built into 
setting the sub-ACLs and the payback provisions for overages minimize 
the need to limit carryover to 10 percent.
    Response: NMFS cannot choose a higher percentage for carryover 
without further Council action, because the Council only considered 
carryover of up to 10 percent. The Council could consider higher 
carryover in future years if it believes it is warranted. Whether or 
not sufficient buffers are included already in setting herring fishery 
ACLs, as suggested in the comment, would need to be analyzed in that 
future action.
    Comment 6: Cape Seafoods/Western Sea supported the sub-ACL 
specifications, but opposed the new AM that would close each area when 
it reaches 92 percent of the catch, instead of the 95-percent 
threshold. Cape Seafoods/Western Sea argued that the fishery has been 
below overfishing thresholds in recent years and there is no valid 
justification for the more precautionary closure threshold.
    Response: NMFS disagrees that the fishery has been below 
overfishing thresholds in recent years and there is no valid 
justification for the more precautionary closure threshold. Under MMSA 
requirements, NMFS must establish ACLs and ensure that the ACLs are not 
exceeded through fishery management measures. If ACLs are exceeded, 
NMFS must implement AMs to account for the overage. AMs can address 
management uncertainty, including uncertainty in quantifying catch and 
monitoring the quota on a real-time basis, as well as the ability of 
managers to constrain catch in order to avoid ACL overages. Setting the 
AM threshold at 92 percent for herring management area sub-ACLs, and 95 
percent for the fishery-wide herring ACL, addresses management 
uncertainty, including NMFS's ability to constrain catch as the fishery 
approaches the applicable sub-ACL. The lower threshold is warranted 
because of the level of catch that can happen in a short time when the 
fishery is approaching the sub-ACLs. At a lower threshold, NMFS is more 
likely to account for management uncertainty such as catch occurring 
after the closure announcement (NMFS provides, in general, 72-hr notice 
of a closure), incidental catch of herring after the closure (up to 
2,000 lb (907 kg) per trip), variable herring catch rates, and late/
missing catch reports that cause catch to increase after the closure. 
For some areas, like Area 1B, that have very small sub-ACLs, the larger 
buffer is important since catch leading up to the closure and after the 
closure announcement can cause the sub-ACL to be exceeded in just a few 
    Comment 7: CCCFA supported the 92-percent closure threshold for 
management areas and the 95-percent closure threshold for the stockwide 
ACL, as well as the carryover provision in Framework 2. However, CCCFA 
urged NMFS to eliminate the 1-year lag for implementing the overage 
deductions and carryover in favor of a more immediate response to under 
or over-harvesting the herring ACLs.
    Response: The interim year between the year the overage occurs and 
the overage deduction AM, and the same for the under-harvest and the 
carryover under this action, is necessary because the herring fishery 
can be active during the entire fishing year (January to

[[Page 61833]]

December). This may be enhanced with the seasonal splits in Areas 1A 
and 1B. Once all data are available to NMFS (considering corrected and 
late reports), NMFS finalizes herring fishery year-end accounting about 
halfway through the interim year (in 2013, NMFS completed this in 
August). Within this process, NMFS completes quality control checks on 
herring catch data in February finalizes observer data in May, and 
finalizes dealer data in June. As we are seeing this year with late 
implementation of these specifications, an inseason adjustment of the 
herring sub-ACLs is disruptive and confusing to the herring fleet. 
Although NMFS understands that an adjustment sooner after the overage 
or underage occurred would be preferable, biologically, there is little 
difference in making the AM or carryover effective 1 year, or 2 years 
after the overage or underage.
    Comment 8: CCCFA supported the sub-ACL specifications, but insisted 
that the specifications should be revisited annually to ensure that 
these allocations are still consistent with the resource. CCCFA 
commented that is particularly the case for the 2015 specifications, 
since the ABC is equal to the OFL for that year. The Herring Alliance, 
through Earthjustice, commented that NMFS and the Council initiate 
structured annual Council and SSC review of stock status similar to the 
procedures used by the Mid-Atlantic Council and its SSC for reviewing 
multi-year specifications annually in the Mackerel, Squid, and 
Butterfish Fishery Management Plan.
    Response: The 3-year specifications for this and other species 
promotes efficiency in the Council process, which can be hampered by 
numerous conflicting actions and priorities in its various fishery 
management plans. However, nothing prevents the Council from adjusting 
the specifications within the 3-year period, if information suggests 
that the specifications need adjustment. The current herring 
regulations state that the Council can adjust the herring 
specifications within an established 3-year period if it determines 
that it should do so based on information provided by its herring PDT 
or the ASMFC's herring Plan Review Team, or other stock-related 
information. Further, the regulations state that the herring PDT will 
meet at least once during the 3 years to review the stock status in 
relations to the OFLs, if information is available to do so. The 
Council would use the specifications-setting process that it uses for 
the typical 3-year specifications. Currently, the need for adjustment 
is speculative. CCCFA and any other organization may suggest such 
action of the Council when and if new information about the herring 
resource suggests that the Council should consider adjusting the 
herring specifications, either upward or downward.
    Comment 9: Earthjustice commented that NMFS failed to consider a 
reasonable range of alternatives to the interim ABC Control Rule in the 
Specifications. Earthjustice claimed that the record for the action 
does not support NMFS's conclusion in the proposed rule that the two 
forage-based control rules, which were rejected, were carefully 
considered by the SSC during development of the Specifications. 
Earthjustice claims that NMFS has failed to satisfy the Court's 
remedial Order in Flaherty, which requires NMFS to consider a range of 
alternatives to the interim ABC control rule for the Atlantic herring 
fishery, at least one of which is based on the most recent best 
available science for setting ABC control rules for herring and other 
forage fish. Earthjustice commented that NMFS must implement an ABC 
Control Rule consistent with the best available science for herring and 
other forage fish in the next specifications package.
    Response: Earthjustice's comment and summary of the Council's 
consideration of the two forage fish control rules does not provide an 
accurate summary of the Council's consideration of the range of control 
rules in the specifications. The Council considered five alternative 
control rules that could be used to set an ABC and ACLs for the herring 
fishery, including the no action alternative. Earthjustice and its 
clients presented two of the alternatives (the Lenfest and Pacific 
Control Rules) to the Council, and the Council used additional time in 
the specifications process to consider them. The Council's SSC 
evaluated all of the control rules and recommended to the Council that 
the two alternative forage-based control rules should not be used for 
the 2013-2015 specifications. The basis for this recommendation had two 
parts: First, the SSC found that evaluating catch limits through such 
as the alternatives proposed by Earthjustice required further 
scientific development and guidance from the Council because the rules 
as designed may not be suitable for the herring fishery; and second, 
that based on available information, the alternative control rules 
proposed by Earthjustice would yield ABC and ACLs similar to the three 
other control rules evaluated by the SSC and the Council. In suggesting 
that the record for the action does not support the Council's 
conclusions, Earthjustice failed to recognize or address the discussion 
of the two control rules that is included in the EA that explains the 
SSC's consideration of the two control rules and the Council's reasons 
for including them in the considered but rejected section of the EA. In 
that section, the Council provides a thorough description of the two 
forage-based control rules proposed by Earthjustice, the SSC 
recommendations, and the reasons why those two control rules should not 
be further analyzed in the EA. Earthjustice also failed to recognize 
and address the two SSC reports, included as appendices to the EA, that 
present the SSC's full consideration of the two forage fish control 
rules and its full reasons for delaying consideration of the 
alternative forage-based control rules.
    Comment 10: Earthjustice commented that NMFS's disapproval of 
Amendment 5's 100-percent observer coverage requirement, the net 
slippage cap, and the requirement for dealers to weigh fish undermines 
the specifications. It claims that the disapproval of these monitoring 
revisions is problematic because the catch limits in the specifications 
were analyzed with the expectation that these monitoring measures would 
be approved. Earthjustice characterized several statements in the EA as 
demonstrating that the full approval of Amendment 5 is necessary for 
the implementation of the Council's preferred specification 
alternatives. The Herring Alliance, through Earthjustice, commented 
that, as a result of the disapproval, NMFS should approve the ``No 
Action'' alternative for specifying ABC and ACL, which would maintain 
the status quo of 106,000 mt ABC and 91,200 mt ACL for the next 3 
    Response: NMFS strongly disagrees with these comments. The 
specifications are not dependent on the approval of Amendment 5. With 
or without approved Amendment 5 management measures, the proposed 
specifications will continue to serve as management measures that are 
necessary and appropriate to comply and are consistent with the MSA and 
applicable laws. Earthjustice cited pieces of the Framework 2/2013-2015 
Specifications document that reference Amendment 5, and provided its 
own interpretation of those statements, concluding that the proposed 
specifications are not legal as a result of the disapproval of 
Amendment 5. These statements are not accurate.
    The EA for these specifications includes references to Amendment 5 
as a reasonably foreseeable action. It includes references to the AM 
measures in the specifications that support Amendment 5 objectives. It 
also includes references to all of the monitoring measures in Amendment 

[[Page 61834]]

and the expectation that those measures would build on recent 
monitoring improvements in the herring fishery. The 100-percent 
monitoring coverage requirement referred to by Earthjustice is only one 
of the Amendment 5 measures that were expected to build on these 
improvements. The monitoring and other measures approved in Amendment 5 
are still expected to improve recent monitoring.
    The record does not support Earthjustice's claims that additional 
uncertainty would need to be built into the specifications and that the 
2013-2015 specifications should be reduced to account for the 
disapproval of some measures in Amendment 5. NMFS and the Council 
consider a full range of alternatives for an action that is dependent 
on possible approval or disapproval and implementation of measures 
included in an umbrella action (see Amendment 15 and Framework 
Adjustment 22 to the Scallop Fishery Management Plan (76 FR 43746, July 
21, 2011, and 76 FR 43774, July 21, 2011, respectively)). These two 
scallop actions were directly related, and the documents supporting the 
action and the rules published in the Federal Register noted those 
relationships. As noted in this rule, the ABC is sufficient to prevent 
overfishing. New AMs are being implemented by this action to support 
those limits. For the 2013-2015 Herring Specifications, the Council 
merely noted improvements expected through Amendment 5. The Council did 
not state anywhere that the 2013-2015 Specifications rely on the 
approval of Amendment 5 in full.
    Comment 11: Earthjustice commented that NMFS is past its deadline 
to establish management measures that minimize bycatch consistent with 
National Standard 9 of the MSA. It commented that NMFS must act quickly 
to implement a river herring catch cap through Framework 3 to the FMP. 
Earthjustice also noted that NMFS must ensure that the cap reduces 
bycatch and incidental catch of river herring consistent with National 
Standard 9 and the goals and objectives of the FMP.
    Response: This comment is not relevant to Framework 2/2013-2015 
Specifications. NMFS notes, however, that it has asked the Council to 
quickly move forward on its development and completion of Framework 3 
to implement river herring catch cap for the herring fishery. NMFS 
disagrees that it has missed a deadline to minimize bycatch as required 
by the Court. Rather, NMFS believes that the measures implemented in 
Amendment 5 minimize bycatch and mortality of bycatch to the extent 
practicable, as required by the MSA. NMFS will continue to implement a 
rigorous monitoring program for the herring fishery to maintain 
consistency with these requirements.
    Comment 12: Earthjustice commented that NMFS violated the law by 
failing to consider adding river herring and shad to the FMP. It stated 
that, although the Council made such an action a priority for 2013, it 
has failed to take any action on it. Earthjustice commented that the 
Council inexplicably delayed action instead until the completion of the 
river herring catch cap action in Framework 3 and an action to 
establish an industry-funded observer program. Earthjustice commented 
that failure to initiate an amendment to consider adding river herring 
and shad to the FMP as managed species would further unlawfully delay 
NMFS meeting its statutory obligations to manage species in need of 
conservation and management and that the Council must initiate such an 
amendment at its September Council meeting.
    Response: Adding river herring and shad to the herring FMP is 
outside of the scope of this action. NMFS agrees, however, that the 
Council should consider adding river herring and shad to the FMP as 
managed species, or managing river herring and shad under its own 
management plan, and has urged the Council to consider these issues in 
a letter to the Council from NMFS dated August 29, 2013. The Council 
will determine its management action priorities at its November Council 
meeting, and NMFS will urge it to prioritize consideration of managing 
river herring and shad. NMFS does not believe that considering 
industry-funded observer provisions would be an impediment to the 
Council's consideration of river herring and shad as stocks in the 
fishery, as NMFS is proposing to develop an action, with close 
coordination with both the New England and Mid-Atlantic Fishery 
Management Councils, that could establish provisions for industry-
funded observer programs for all managed fisheries.
    Comment 13: The Herring Alliance, through Earthjustice, opposed the 
2013-2015 specifications because it believes they are too high and do 
not account for sufficient uncertainty related to monitoring of the 
fishery. The Herring Alliance is concerned about discarding and 
uncertainties in herring catch as a result of monitoring deficiencies 
created by NMFS's disapproval of some monitoring provisions in 
Amendment 5 to the FMP. The Herring Alliance, through Earthjustice, 
also opposed the 2015 specifications because the terminal year of the 
2013-2015 Specifications does not include any buffer for scientific 
uncertainty in setting OFL and ABC.
    Response: The FMP, as adjusted by these specifications, is in 
compliance with the MSA and applicable law. The SSC concluded that the 
proposed specifications are unlikely to result in overfishing in the 
next 3 years, including FY 2015. The best available scientific 
information, as presented in the EA, supports these conclusions. If new 
scientific information about the herring resource and fishery shows 
that the Council should adjust the specifications, the Council may take 
action to do so to prevent overfishing or to address any issues that 
are not evident in the scientific information supporting this action. 
Further, the new lower AM thresholds implemented by these 
specifications will assist with maintaining these catch limits.
    Comment 14: The Herring Alliance, through Earthjustice, opposed the 
``Constant Catch ABC Control Rule'' and the failure to consider an ABC 
control rule that can respond to changing stock conditions necessary to 
determine how many fish can safely be removed from the ecosystem. The 
Herring Alliance stated that a well-designed ABC control rule 
establishes ABC under a wide range of stock conditions, including 
setting catch at zero when a minimum biomass limit is reached.
    Response: The Constant Catch ABC Control Rule will apply to the 
next 3 years of the herring fishery. The SSC has analyzed this catch 
rule and determined it sufficiently accounts for herring's role as 
forage and protects from overfishing. If the Council finds that this 
control rule is insufficient, or results in too much risk of 
overfishing, it may choose to change the ABC control rule. In addition, 
NMFS is urging the Council to further consider control rules for the 
herring fishery that take into account the role of herring as forage in 
the ecosystem. Although the Council determined that forage-specific 
control rules would provide no distinct difference from the constant 
catch control rule or its alternatives in the next 3 years, it 
recognized the need to further develop and consider forage-based 
control rules for this species. NMFS therefore believes that the 
Council will further consider different control rules in the next 
scheduled specifications and that the herring resource is not at risk 
of overfishing in the meantime.

Changes From Proposed Rule to Final Rule

    In Sec.  648.201(g), the first sentence is changed to read 
``Subject to the

[[Page 61835]]

conditions described in this paragraph (f), unharvested catch in a 
herring management area in a fishing year (up to 10 percent of that 
area's sub-ACL) shall be carried over and added to the sub-ACL for that 
herring management area for the fishing year following total catch 
determination.'' The change brings the regulatory text in line with the 
Council's recommended measure because carryover is a maximum of 10 
percent of the sub-ACL, not 10 percent of the unused portion of the 
sub-ACL and so the original text was in error.


    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.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The need to implement these measures in an expedited manner in 
order to help achieve conservation objectives for Atlantic herring 
constitutes good cause, under authority contained in 5 U.S.C. 
553(d)(3), to waive the 30-day delay in effectiveness. If there is a 
delay in implementing the ACLs in this action, the herring fleet will 
continue to fish in Federal waters under lower ACLs that are currently 
in effect. In some cases, these allocations are close to being fully 
harvested, which would force a closure of the affected management areas 
prior to the end of the fishing year. NMFS would need to re-open the 
fisheries after the closures, and delaying such reopening could 
constrain catch for the remainder of the year. The allocations in this 
action were developed to reflect an updated estimate of the annual 
catch that can be harvested, and could be underutilized if the herring 
fishery is not given sufficient time to harvest it. The herring fishery 
supplies bait to the lobster and other fisheries, and the process of 
closing and reopening the fishery could lead to a potential under-
harvest and also cause widespread fishery disruption. Further, 
continuation of inconsistent state and Federal management measures 
creates unnecessary confusion in the industry about regulatory 
requirements. For example, the states recently closed the herring 
fishery in Area 1A under Atlantic States Marine Fisheries Commission 
rules in order to prolong the fishery. This closure has confused vessel 
owners and interested members of the public public because of the 
overlap in this state and Federal management measures. This rule would 
allow the states to re-open the fishery.
    A final regulatory flexibility analysis (FRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
FRFA describes the economic impact this final rule would have on small 
entities. A summary of the analysis follows.

Statement of Objective and Need

    This action implements management measures and 2013-2015 
specifications for the herring fishery. A complete description of the 
reasons why this action is being considered, and the objectives of and 
legal basis for this action, are contained in the preamble to this 
final rule and are 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 no comments relative to the IRFA or economic impacts 
of the proposed Framework 2 or 2013-2015 herring fishery 

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

    NMFS determined in the Initial Regulatory Flexibility Analysis that 
based on 2012 permit data, the number of potential fishing vessels in 
each permit category in the herring fishery are as follows: 40 for 
Category A (limited access, All Areas); 4 for Category B (limited 
access, Areas 2 and 3); 45 for Category C (limited access, incidental); 
and 1,984 for Category D (open access). Using ownership data and this 
permit information, 61 entities were analyzed relative to the impacts 
on small entities when the Council made its recommendations on this 
action. Three entities, owning vessels with Category A permits, were 
considered large entities, as defined in section 601 of the RFA, based 
on the small business size standards in effect when the Council made 
its recommendations on this action.
    Subsequent to Council action related to this rule, SBA revised its 
small business size standards for several industries in a final rule 
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. NMFS has reviewed the analyses 
prepared for this action in light of the new size standards.
    In preparing the FRFA for this final rule, NMFS reviewed permit, 
landings, and ownership data, and discovered an error in tabulating 
revenues and entities for 2012, which is now being corrected in this 
rule. NMFS has now identified 70 entities (compared to 61 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. In the IRFA, NMFS, determined that 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 criteria, there are seven large shellfish fishing entities to 
which the rule would apply. There are 63 small entities to which the 
rule would apply.
    Of the 63 small entities, 39 reported no revenue from herring 
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 herring. Seven of these 24 
active small entities derive more than 95 percent of their total 
fishing revenue from herring.
    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 
Framework 2/2013-2015 Specifications are not expected to be 
disproportional for small versus large entities, as the action will 
affect all entities, large and small, in a similar manner. As a result, 
this action would have proportionally similar impacts on revenues and 
profits of each vessel and each multi-vessel owner compared both to 
status quo (i.e., FY 2012) and no action levels. Therefore, this action 
is not expected to have disproportionate impacts or place a substantial 
number of

[[Page 61836]]

small entities at a competitive disadvantage relative to large 

Description of Projected Reporting, Recordkeeping, and Other Compliance 

    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements. It does not 
duplicate, overlap, or conflict with any other Federal rules.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objective of the Applicable Statutes, Including a Statement of 
the Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

    Framework Adjustment 2 would improve profitability by allowing sub-
ACL carryover, thus permitting the industry to maximize opportunities 
to fish when markets are favorable. The 2013-2015 herring 
specifications, ABC, and the corresponding sub-ACLs would increase 
(from 106,00 mt to 114,000 mt) for the upcoming 3 fishing years, which 
could also increase profitability. The AMs are expected to act as an 
incentive to avoid exceeding the ACL and are expected to have minimal 
impacts on profitability. The impacts of these measures are described 

Seasonal Splits of Sub-ACLs

    Relative to the status quo, the approved measures, which allow for 
seasonal splits, may have costs to the herring industry. A seasonal 
split would delay harvest of herring and potentially reallocate herring 
effort from earlier in the season to later in the season. The purpose 
of this measure is to ensure that the herring sub-ACLs are not met or 
exceeded early in the fishing year. Prolonging the fishing season, or 
delaying fishing opportunities until late in the fishing year may be 
desirable in many cases. For example, because herring and mackerel are 
jointly caught at the end of the fishing year in Area 2, there may be 
an opportunity to increase catch by delaying some effort until later 
during the year to provide an opportunity to catch mackerel along with 
herring. Therefore, there may be benefits to fishing businesses that 
participate in both the herring and mackerel fishery if the Council 
chooses to adopt a seasonal split in Area 2, or other areas, in future 
    The specifications for 2013-2015 implement the actual seasonal 
splits. The status quo for seasonal splits includes a seasonal split 
for Area 1A (0 percent for January-May and 100 percent for June-
December), and no seasonal splits for the other areas. The approved 
measures adds a seasonal split for Area 1B (0 percent January-April and 
100 percent in May-December). This would delay fishing in Area 1B to 
allow for sufficient time for overage or carryover determinations so 
the industry may be better able to harvest within the sub-ACL. The Area 
1B split may increase user-group conflicts, particularly between the 
midwater trawl herring vessels and recreational anglers who utilize 
Area 1B in June. With the exception of 2011 and 2012, however, Area 1B 
has been open year-round to the herring fishery (only in 2012 was it 
closed in June) without significant conflict with the recreational 
fishery though the seasonal split may increase herring vessel activity 
in Area 1B in June.
    An Area 2 split of 67 percent in January-February and 33 percent in 
March-December was considered, but not selected. This seasonal 
splitting for Area 2 could ensure herring availability towards the end 
of the year. This could have positive economic benefits for fishing 
vessels that are jointly catching herring and mackerel at the end of 
the calendar year. Based on industry input during development of this 
action, the Council determined that allowing the fleet to operate in 
Area 2 based on market conditions and fish availability would be more 
preferable than setting a season in Area 2. Both herring and mackerel 
availability in this area occur during the winter and can be quite 
variable, and an early-year split like the one proposed for Area 2 
could preclude the fleet from optimizing these fisheries.

Carryover Provisions

    Relative to the status quo, the approved measures to allow for 
carryover of up to 10 percent of sub-ACL benefits the herring industry 
by increasing operational flexibility and efficiency. For all carryover 
options, there are slightly higher regulatory and monitoring costs for 
NMFS. The Council also considered three options for how to apply the 
carryover, which have different potential economic impacts to affected 
entities. Under the Preferred Option (Option 1), there would be no 
corresponding increase in the total stockwide ACL. Under Option 2, an 
increase in the total stockwide ACL would be possible and the 
determination would be authorized by the NMFS Regional Administrator. 
Under Option 3, the total stockwide ACL could increase but could not 
exceed ABC in any fishing year. These options were not selected by the 
Council because increasing the stockwide ACL would increase the risk of 
exceeding overfishing limits for the herring fishery. All options would 
provide benefits to the herring industry in terms of increased 
operational flexibility, higher levels of catch in subsequent years, or 
both. There may be moderate increases in monitoring and reporting costs 
that would accrue to fishery managers (NMFS) associated with these 

Impacts of OFL/ABC Alternatives

    Relative to the status quo, the specifications for setting the 
herring constant catch ABC and OFL for 2013-2015 implemented by this 
rule will result in an increase in OFL and ABC. Increasing, then 
maintaining a stable OFL and ABC would provide net benefits to the 
herring industry in the short and long term, relative to the status 
quo. Moderately higher amounts of catch may result in slightly lower 
bait costs to the lobster industry. Alternative 3 for setting a 
declining ABC for 2013-2015 would also increase the overall amount of 
available catch over the 3-year specifications period and thereby the 
potential net benefits to the herring industry in the short and long 
term, relative to the status quo. However, Alternative 3 was rejected 
because its declining catch limits would provide lower net benefits 
than Alternative 2, the approved Alternative implemented through this 
final action, because it would not provide the industry with stable 
market expectations and improved ability for business planning.

Sub-ACL Options

    Relative to the status quo, these specifications would provide 
16,600 mt of additional yield each year in 2013-2015 relative to the 
yield available in 2012. Increasing a sub-ACL results in positive 
economic impacts, if the increase translates into increased catch. 
Increases in sub-ACLs that are not likely to be fully utilized will 
provide minimal, if any, economic benefits. The values of sub-ACLs 
under consideration in all options are within the range of recent sub-
ACLs and catches. This suggests that the herring industry could 
approach full utilization of the sub-ACLs under any of the options. 
Relative to the status quo, all alternatives are expected to provide 
similar benefits because they are primarily distributive in nature.

[[Page 61837]]

Impacts of Other 2013-2015 Fishery Specifications

    No costs or benefits are expected for the specifications of 
management uncertainty, RSAs, Fixed Gear Set-Aside (FGSA), DAH, BT, or 
USAP relative to the status quo.

Accountability Measures

    The approved measures would close the directed fishery in each 
management area at 92 percent of the corresponding area sub-ACL. 
Relative to the status quo of 95 percent of the sub-ACL, this 
alternative may limit fishing opportunities, which would be a cost to 
the industry. However, this measure may also ensure that sub-ACLs are 
not exceeded and deducted from future ACLs. The measure would close the 
entire fishery at 95 percent of the total stockwide ACL; this differs 
from the status quo because there is currently no trigger to close the 
directed fishery in all areas based on a percentage of the total ACL. 
This may impose a small short-term cost on the herring industry 
relative to the status quo, but there are expected to be long-term 
benefits from reducing ACL overages. Moreover, the 92-percent trigger 
for the sub-ACLs in the management areas should minimize impacts 
associated with closures, especially when combined with carryover 
provisions in Framework 2.
    Alternative 3 would continue to rely on herring catch estimation 
from NMFS' ``year-end'' catch tallying methods to trigger the AM for 
overage paybacks. The AM for closing the directed fishery in a 
management area would continue to be triggered based on NMFS' ``in-
season'' monitoring but would be modified in the following ways: (1) 
The AM trigger for closing the directed herring fishery in a management 
area would be reduced to 92% of the sub-ACL and (2) The current AM to 
require a pound-for-pound sub-ACL overage deduction based on year-end 
catch tallies (with a one-year lag) would remain effective, but the 
deduction would only be required if the sub-ACL is exceeded by 5% or 
more when overfishing is not occurring and the stock is rebuilt (i.e., 
above the target biomass). Alternative 3 would have lowered costs to 
the herring industry but may be less effective at achieving the 
conservation objectives of the FMP. Under Alternative 4, the closure 
trigger would be affected by any previous overages. This would increase 
the management complexity for regulators and the industry because there 
could be different triggers for each management area. Alternative 4 was 
rejected because its complexity could slow the implementation of the 
closures and disrupt the opperations of vessel owners.

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 shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to make to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of permits issued for the herring fishery. In addition, 
copies of this final rule and guide (i.e., permit holder letter) are 
available from the Regional Administrator (see ADDRESSES) and may be 
found at the following Web site: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: September 30, 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.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:


1. The authority citation for part 648 continues to read as follows:

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

2. In Sec.  648.14, paragraph (r)(1)(vi)(G) is added to read as 

Sec.  648.14  Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (vi) * * *
    (G) Fish for, possess, or retain herring in any management area 
during a season that has zero percent of the herring sub-ACL allocated 
as specified in Sec.  648.201(d).
* * * * *

3. In Sec.  648.201, paragraphs (a)(1), (d), and (f) are revised to 
read as follows:

Sec.  648.201  AMs and harvest controls.

    (a) * * *
    (1) Herring sub-ACLs and ACL-- (i) Management area closure. If NMFS 
projects that catch will reach 92 percent of the annual sub-ACL 
allocated to a management area before the end of the fishing year, or 
92 percent of the Area 1A or Area 1B sub-ACL allocated to a seasonal 
period as set forth in paragraph (d) of this section, NMFS shall 
prohibit vessels, beginning the date the catch is projected to reach 92 
percent of the sub-ACL, from fishing for, possessing, catching, 
transferring, or landing more than 2,000 lb (907.2 kg) of Atlantic 
herring per trip in the applicable area, and from landing herring more 
than once per calendar day, except as provided in paragraphs (b) and 
(c) of this section. NMFS shall implement these restrictions in 
accordance with the APA.
    (ii) Herring fishery closure. If NMFS projects that catch will 
reach 95 percent of the ACL before the end of the fishing year, NMFS 
shall prohibit vessels, beginning the date the catch is projected to 
reach 95 percent of the ACL, from fishing for, possessing, catching, 
transferring, or landing more than 2,000 lb (907.2 kg) of Atlantic 
herring per trip in all herring management areas, and from landing 
herring more than once per calendar day, except as provided in 
paragraphs (b) and (c) of this section. NMFS shall implement these 
restrictions in accordance with the APA.
* * * * *
    (d) Seasonal sub-ACL periods. The sub-ACL for each herring 
management area may be divided into seasonal periods by month. Seasonal 
sub-ACLs for herring management areas, including the specification of 
the seasonal periods, shall be set through the annual specification 
process described at Sec.  648.200. The seasonal allocation of sub-ACLs 
are as follows:
    (1) Area 1A: Zero percent available for harvest during January-May; 
100 percent available for harvest during June-December.
    (2) Area 1B: Zero percent available for harvest during January-
April; 100 percent available for harvest during May-December.
    (3) Area 2: 100 percent available for harvest during January-
    (4) Area 3: 100 percent available for harvest during January-
* * * * *
    (f) Carryover. Subject to the conditions described in this 
paragraph (f), unharvested catch in a herring management area in a 
fishing year (up to 10 percent of that area's sub-ACL) shall be carried 
over and added to the sub-ACL for that herring management area for the 
fishing year following the year when total catch is determined. For 
example, NMFS will determine total

[[Page 61838]]

catch from 2013 during 2014, and will add carryover to the applicable 
sub-ACL(s) in 2015. All such carryover shall be based on the herring 
management area's initial sub-ACL allocation for the fishing year, not 
the sub-ACL as increased by carryover or decreased by an overage 
deduction, as specified in paragraph (a)(3) of this section. All 
herring landed from a herring management area shall count against that 
area's sub-ACL, as increased by carryover. For example, if 500 mt of 
herring is added as carryover to a 5,000 mt sub-ACL, catch in that 
management area would be tracked against a total sub-ACL of 5,500 mt. 
NMFS shall add sub-ACL carryover only if the ACL, specified consistent 
with Sec.  648.200(b)(3), for the fishing year in which there is 
unharvested herring, is not exceeded. The ACL, consistent with Sec.  
648.200(b)(3), shall not be increased by carryover specified in this 
paragraph (f).

[FR Doc. 2013-24271 Filed 9-30-13; 4:15 pm]