04-7661. 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.

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, [phone], e-mail at [e-mail], fax at [phone].

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.

Specifications and Area TACs for the 2004 Atlantic Herring Fishery

Specification	Proposed Allocation (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 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.