[Federal Register Volume 78, Number 149 (Friday, August 2, 2013)]
[Proposed Rules]
[Pages 46897-46903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18655]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130408348-3348-01]
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: Proposed rule, request for comments.

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SUMMARY: NMFS proposes regulations to implement Framework Adjustment 2 
to the Atlantic herring Fishery Management Plan and the 2013-2015 
fishery specifications for the Atlantic herring fishery. Framework 2 
would allow the New England Fishery Management 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 would set catch 
specifications for the herring fishery for the 2013-2015 fishing years 
and would establish seasonal splits for management areas 1A and 1B as 
recommended to NMFS by the New England Fishery Management Council.

DATES: Public comments must be received by September 3, 2013.

ADDRESSES: Copies of supporting documents used by the New England 
Fishery Management Council (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.
    You may submit comments, identified by NOAA-NMFS-2013-0120, by any 
one of the following methods:
    --Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0120, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments;
    --Mail: Submit written comments to NMFS, Northeast Regional Office, 
55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the 
envelope ``Comments on Framework 2 and 2013-2015 Herring 
Specifications;''
    --Fax: (978) 281-9135, Attn: Carrie Nordeen.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Background

    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' 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 proposed 2013-2015 herring specifications are based on the 
provisions currently in the Herring 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 proposed in 
Framework Adjustment 2 (Framework 2) to the FMP.

Framework 2 Measures

    Framework 2 would allow seasonal splits of sub-ACLs for all herring 
management areas through the specifications process. The Herring FMP 
already authorizes seasonal splits of the Area 1A sub-ACL. The proposed 
sub-ACL splitting under Framework 2

[[Page 46898]]

would allow seasonal control of fishing effort and harvest in 
management areas by specifying the percent of the sub-ACL available for 
harvest. The FY 2013-2015 specifications propose the following:
    Area 1A: 100 percent of the sub-ACL available for harvest during 
June-December (none of the sub-ACL would be 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 would be available for harvest during 
January through April).
    Framework 2 would also allow the carryover of unharvested catch, up 
to 10 percent for 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 one or more management areas in order to harvest the 
carryover available in an area. This measure would maintain 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 would 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 fishing year (FY). Therefore, NMFS would apply carryover 
from fishing year 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 
[frac12] BMSY and the fishing mortality rate 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, U.S. District Court for the District of Columbia 
(Court) found that the environmental assessment 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 to the Council 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. The final rule for Amendment 4 stated that, if a new ABC 
control rule could be developed following the 2012 herring stock 
assessment, it would be developed in the 2013-2015 specifications. 
Additionally, the current herring regulations authorize the 
modification of existing AMs through the specification process. 
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), 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, Earth Justice (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. Earth Justice 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 and 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 Earth Justice. 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, as 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

[[Page 46899]]

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 in that they 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 two control rules and that 
considerably more analysis would be necessary to support 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 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, and should be evaluated in a full Council amendment 
to the FMP. Section 2.2.9.1 ``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 proposed 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 
further will urge 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 
a difficulty in 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 been a challenge to monitor 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 proposed carryover provision.
    At its January 29, 2013, meeting, the Council recommended the 2013-
2015 specifications for the herring fishery. NMFS proposes to implement 
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--Proposed Specifications
      [Proposed Atlantic herring specifications (mt) for 2013-2015]
------------------------------------------------------------------------
 
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Overfishing Limit...................  2013--169,000.
                                      2014--136,000.
                                      2015--114,000.
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.....................  31,200.
Area 1B Sub-ACL.....................  4,600.
Area 2 Sub-ACL......................  30,000.
Area 3 Sub-ACL......................  42,000.

[[Page 46900]]

 
Fixed Gear Set-Aside................  295.
Research Set-Aside..................  3 percent of each sub-ACL.
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    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 
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 would remove 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 the specification for BT be 
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 unchanged.
    The Herring FMP specifies that DAH will be set less than or equal 
to OY and be comprised of DAP and BT. Consistent with the proposed 
specifications for OY, the Council recommended that DAH be 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 that DAP be 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 it proposes that DAH be set at 107,800 
mt and DAP be set 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 availability of shore-side processing, status of the 
resource, and opportunities for vessels to participate in the herring 
fishery. During the 2007-2009 fishing years, 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 the 2007-2009 fishing years. However, this 
operation never materialized, and none of the USAP specification was 
used during the 2007-2009 fishing years. Consequently, the Council set 
USAP at zero for the 2010-2012 fishing years. The Council has not 
received any information that would suggest changing this specification 
for FYs 2013-2015.
    The Council recommended and NMFS is proposing a 3-percent herring 
research set-aside (RSA) for all management areas for fishing years 
2014-2015. The research set-aside 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 APA, provided 
that the additional catch can be available for harvest before the end 
of the fishing year for which that RSA is specified. Any unallocated or 
unused RSA would be re-allocated to the sub-ACL and made available to 
the fleet before the end of the fishing year in accordance with the 
APA, provided that the RSA can be available for harvest before the end 
of the fishing year for which the 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 proposed 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. 
Therefore, the Council recommended, and NMFS is proposing, that the 
fixed gear set-aside be set at 295 mt for 2013-2015.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has preliminarily determined that this proposed rule is 
consistent with the Atlantic Herring FMP, other provisions of the MSA, 
and other applicable law, subject to further consideration after public 
comment.

[[Page 46901]]

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A summary of the analysis follows.

Statement of Objective and Need

    This action proposes 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 
proposed rule and are not repeated here.

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

    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.
    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/Specifications are not expected to be disproportional for 
small versus large entities, as the proposed action will affect all 
entities, large and small, in a similar manner. 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 small entities at a competitive disadvantage relative to 
large entities.
    Subsequent to Council action related to this proposed 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 this IRFA, NMFS reviewed permit, landings, and ownership 
data, NMFS discovered an error in tabulating revenues and entities for 
2012 and corrects the numbers in this proposed 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. 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 7 
large shellfish fishing entities to which the proposed rule would 
apply. There are 63 small entities to which the proposed rule would 
apply.
    Of the 63 small entities, 39 reported no revenue from herring 
during 2012. For the twenty-four (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.
    After considering the new information, and the new SBA size 
standards, NMFS does not believe that the new size standards affect the 
above conclusion that the proposed action would affect all entities, 
whether large or small, in a similar manner. NMFS solicits public 
comment on the analyses in light of the new size standards and revised 
permit and entity information.

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

Proposed Actions
    Framework Adjustment 2, by allowing sub-ACL carryover, would 
improve profitability by allowing the industry to maximize 
opportunities to fish when markets are favorable. The proposed 2013-
2015 herring specifications, ABC, and the corresponding sub-ACLs would 
increase for the upcoming 3 fishing years (106,00 mt to 114,000 mt), 
which could also increase profitability. The proposed 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 below.
Seasonal Splits of Sub-ACLs
    Relative to the status quo, the proposed 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 
actions.
    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 proposed 
measures adds a seasonal split for Area 1B (0 percent January-April

[[Page 46902]]

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 
proposed 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, 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. However, the proposed 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. The seasonal splitting 
proposed 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.
Carryover Provisions
    Relative to the status quo, the proposed 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 
proposed 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 NMFS Regional Administrator. Under 
Option 3, the total stockwide ACL could increase but could not exceed 
ABC in any fishing year. 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 which would accrue to 
fishery managers (NMFS) associated with these options.
Impacts of OFL/ABC Alternatives
    Relative to the status quo, the proposed specifications for setting 
the herring ABC and OFL for 2013-2015 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 ABC for 2013-2015 would also increase the 
amount of available catch over the three 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 would 
provide lower net benefits than Alternative 2 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 other alternatives are expected to 
provide similar benefits because they are primarily distributive in 
nature.
Impacts of Other Proposed 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 proposed measures would close the directed fishery at 92 
percent of the 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 proposed 
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 that are proposed in Framework 2. The Council 
also evaluated an option that would close the entire fishery at 92 
percent of the total stockwide ACL; this would also impose a small cost 
on the herring industry relative to the status quo, but presumably less 
closing the fishery at 95 percent of the catch.
    Alternative 3 would have lower costs to the herring industry but 
may be less effective at achieving the conservation objectives of the 
Herring 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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: July 29, 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 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.14, paragraph (r)(1)(vi)(G) is added to read as 
follows:


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).
* * * * *
0
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

[[Page 46903]]

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-
December.
    (4) Area 3: 100 percent available for harvest during January-
December.
* * * * *
    (f) Carryover. Subject to the conditions described in this 
paragraph (f), up to 10 percent of unharvested catch in a herring 
management area in a fishing year shall be carried over and added to 
the sub-ACL for that herring management area for the fishing year 
following total catch determination. For example, NMFS will determine 
total 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 this 
paragraph (f).
* * * * *
[FR Doc. 2013-18655 Filed 8-1-13; 8:45 am]
BILLING CODE 3510-22-P