[Federal Register Volume 69, Number 66 (Tuesday, April 6, 2004)]
[Rules and Regulations]
[Pages 17980-17982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7661]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 031126296-4100-02;I.D. 111903B]
RIN 0648-AQ84


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery

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

ACTION: Final 2004 specifications for the Atlantic herring fishery.

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SUMMARY: NMFS announces final specifications for the 2004 Atlantic 
herring fishery. The intent of this action is to conserve and manage 
the Atlantic herring resource and provide for a sustainable fishery.

DATES: Effective May 6, 2004, through December 31, 2004.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, Final Regulatory Flexibility 
Analysis (EA/RIR/FRFA), Essential Fish Habitat Assessment, and the 
Stock Assessment and Fishery Evaluation (SAFE) Report for the 2001 
Atlantic Herring Fishing Year are available from Patricia A. Kurkul, 
Regional Administrator, Northeast Regional Office, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298. The EA/RIR/IRFA is accessible via the 
Internet at http://www.nero.nmfs.gov/ro/doc/nero.html.

FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy 
Analyst, (978) 281-9259, e-mail at [email protected], fax at (978) 
281-9135.

SUPPLEMENTARY INFORMATION: Regulations implementing the Atlantic 
Herring Fishery Management Plan (FMP) require the New England Fishery 
Management Council (Council) to recommend the following specifications 
annually: Allowable biological catch (ABC), optimum yield (OY), 
domestic annual harvest (DAH), domestic annual processing (DAP), total 
foreign processing (JVPt), joint venture processing (JVP), internal 
waters processing (IWP), U.S. at-sea processing (USAP), border transfer 
(BT), total allowable level of foreign fishing (TALFF), and reserve (if 
any). The Council also recommends the total allowable catch (TAC) for 
each management area and subarea identified in the FMP. Details about 
the process through which the Council developed its recommendations 
were provided in the preamble of the proposed rule, and is not repeated 
here.
    Proposed 2004 initial specifications were published on December 12, 
2003 (68 FR 69373). Public comments were accepted through January 12, 
2004. The final specifications are unchanged from those that were 
proposed.

2004 Final Initial Specifications

    The following table contains the final specifications for the 2004 
Atlantic herring fishery.

[[Page 17981]]



   Specifications and Area TACs for the 2004 Atlantic Herring Fishery
------------------------------------------------------------------------
                                                   Proposed Allocation
                 Specification                             (mt)
------------------------------------------------------------------------
                  ABC                                            300,000
                  OY                                             250,000
                  DAH                                            250,000
                  DAP                                            226,000
                  JVPt                                            20,000
                  JVP                               10,000 (Area 2 and 3
                                                                   only)
                  IWP                                             10,000
                  USAP                              20,000 (Area 2 and 3
                                                                   only)
                  BT                                               4,000
                  TALFF                                                0
                  Reserve                                              0
                  TAC Area 1A                    60,000 (January 1 - May
                                                     31, landings cannot
                                                           exceed 6,000)
                  TAC - Area 1B                                   10,000
                  TAC - Area 2                      50,000 (TAC reserve:
                                                                 70,000)
                  TAC - Area 3                                    60,000
------------------------------------------------------------------------

Comments and Responses

    One comment was received from a company that owns herring boats and 
a processing plant. Another comment came from an environmental group 
with an interest in the fishery. A third comment, which was very 
similar to that made by the environmental group, came from a 
fishermen's association.
    Comment 1: The company said that it does not support any allocation 
to the JVPt, particularly for fish caught in Area 3. The company 
conceded that Area 2 might be able to support a JVP allocation at 
certain times of the year.
    Response: The JVPt allocation for 2004 should not have a negative 
impact on domestic operations because the allocation is relatively 
limited. In recent years the allocation of JVPt has not been fully 
utilized. In 2003 there was no JVP harvest and only 182 mt of IWP. JVPt 
offers a potential economic opportunity for the domestic fleet. If the 
full amount of the JVP (10,000 mt) were harvested, revenues to the 
participating U.S. vessels would approximate $1.4 million, based on an 
average price of $143/mt.
    Comment 2: Two comments concerned observer coverage and bycatch. 
The environmental group noted that, during the scoping process for 
Amendment 1, questions were raised about the adequacy of current 
observer coverage in the herring fishery and the related estimates of 
bycatch. The group argued that National Standard 9 requires all 
conservation measures, including annual specifications, to minimize 
bycatch to the extent practicable, and to the extent that bycatch 
cannot be avoided, minimize the mortality of incidentally caught 
species. The environmental group urged NMFS to immediately obtain an 
accurate and precise estimate of bycatch in the herring industry, and 
they stated that recent science suggests that 50-percent observer 
coverage on herring vessels might be the proper amount. The group 
questioned the legality of NMFS promulgating specifications without 
adequate observer coverage. Similarly, the fishermen's association 
argued that observer coverage has not been adequate in the herring 
fishery, and that current coverage levels are not sufficient to assess 
the bycatch associated with the trawl fleet.
    Response: Observer coverage and bycatch are important issues to be 
considered in relation to the herring fishery. However, current 
information does not suggest that bycatch is a significant problem in 
the herring fishery. There are occasionally relatively small catches of 
groundfish or sportfish, but, overall, the herring fishery appears to 
be relatively clean. In 1997, the State of Maine contracted for 50 
observed trips in the purse seine and mid-water trawl herring fishery. 
During these trips the bycatch was minimal, consisting primarily of 
mackerel, river herring, spiny dogfish and silver hake, as well as very 
small amounts of groundfish such as cod and white hake. In an effort to 
add to the data on bycatch in the fishery, NMFS recently placed 
observers on herring pair-trawlers in the Gulf of Maine. From the 
beginning of October 2003 through the middle of December 2003, a total 
of 22 trips were observed. The data generated during these trips are 
very similar to that generated on the trips observed under the Maine 
contract. NMFS notes that both of these issues--bycatch and observer 
coverage in the herring fishery--will be fully evaluated during the 
development of Amendment 1 to the FMP.
    NMFS disagrees that these specifications are inconsistent with 
National Standard 9, based on best available data concerning bycatch as 
described above. Further, these data do not suggest that a 50-percent 
level of observer coverage is necessary to assess bycatch adequately.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the discussion that follows, the comments and responses to 
the proposed rule, and the IRFA and other analyses completed in support 
of this action. A copy of the IRFA is available from the Regional 
Administrator (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action, is contained in 
the preamble to the proposed rule and is not repeated here.

Summary of Significant Issues Raised in Public Comments

    Three sets of comments were submitted on the proposed rule, but 
none were specific to the IRFA. However, one comment addressed 
potential economic impacts of an allocation of JVPt, and is addressed 
in the response to comment 1.

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

    All of the affected businesses (fishing vessels) are considered 
small entities under the standards described in NMFS guidelines because 
they have gross receipts that do not exceed $3.5 million annually. 
There were 140 vessels that landed herring in 2002, 37 of which 
averaged more than 2,000 lb (907 kg) of herring per trip.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

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

Minimizing Significant Economic Impacts on Small Entities

    The annual setting of the specifications is a relatively limited 
process that focuses on the allocation of herring to various groups and 
for various purposes. The limited nature of this process, in turn, 
necessarily limits the alternatives available for minimizing 
significant economic impacts on small entities. Alternatives that were 
considered to lessen the impacts on small entities are summarized 
below.
    One group of alternatives considered for the Atlantic herring 
fishery would have significantly increased the OY. For the 2003 
specifications, the Council considered non-preferred OY alternatives of 
300,000 and 1,000,000 mt. At these OY levels there would be 
increased potential revenues in comparison to the selected 2004 OY 
alternative of 250,000 mt. However, the Council determined that setting 
OY at

[[Page 17982]]

the ABC (300,00 mt) or above may have adverse impacts on the herring 
stock. Therefore, the Council decided that these greater OY options 
would pose an unacceptable level of risk to the sustainability of the 
herring stock.
    Another alternative considered involves DAP. Based on the proposed 
2004 DAP specification of 226,000 mt, there could be an increase of up 
to 134,169 mt in herring landings, or $19,186,167 in revenue based on 
$143/mt. Revenues to the fleet may also increase under the Council's 
non-preferred 2003 DAP alternative of 236,000 mt. However, the 
magnitude of economic impact of the DAP would depend on the processing 
sector's ability to expand markets and increase capacity to handle 
larger amounts of herring in 2004. Given the current capacity of the 
processing sector, the Council concluded that setting the DAP at 
226,000 mt would provide sufficient allocation for expansion of the 
U.S. domestic processing sector and that setting the DAP at 236,000 mt 
was unlikely to result in additional expansion.

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 take 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 Atlantic 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.nmfs.gov/ro/doc/nero.html.

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

    Dated: March 30, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-7661 Filed 4-5-04; 8:45 am]
BILLING CODE 3510-22-S