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NOAA Announces Partial Approval of Amendment 5 to the Atlantic Herring Fishery Management Plan

Atlantic herring.  Photo credit: NOAA Fisheries

NOAA Fisheries, on behalf of the Secretary of Commerce, has partially approved Amendment 5 to the Atlantic Herring Fishery Management Plan. Amendment 5 was developed to improve the Atlantic herring fishery catch monitoring program and address bycatch issues in the fishery. 

A notice of availability soliciting public comments on Amendment 5 was published on April 22, 2013, with a comment period ending June 21, 2013.  A total of 115 comments were received and considered in making the decision to partially approve Amendment 5.  The proposed rule to implement Amendment 5 was published on June 3, 2013, with a comment period ending July 18, 2013.  A summary of the comments received, and NOAA Fisheries’ responses to those comments, will be published in the final rule implementing Amendment 5.

Click here to view Volume 1 of the Environmental Impact Statement for this action.

Click here to view Volume 2 of the Environmental Impact Statement for this action.


     Approved Measures:

  • Modifying the herring transfer at-sea and offload definitions to better document the transfer of fish;
  • Expanding possession limit restrictions to all vessels working cooperatively, consistent with pair trawl requirements;
  • Eliminating the vessel monitoring system (VMS) power-down provision for limited access herring vessels, consistent with VMS provisions for other fisheries;
  • Establishing an “At-Sea Herring Dealer” permit to better document the at-sea transfer and sale of herring;
  • Establishing an “Areas 2/3 Open Access Permit” to reduce the potential for the regulatory discarding of herring in the Atlantic mackerel fishery;
  • Allowing vessels to enroll as herring carriers with either a VMS declaration or letter of authorization to increase operational flexibility;   
  • Expanding pre-trip and pre-landing notification requirements, as well as adding a VMS gear declaration, to help facilitate monitoring;
  • Expanding vessel requirements related to at-sea observer sampling to help ensure safe sampling and improve data quality;
  • Prohibiting slippage, with exceptions for safety concerns, mechanical failure, and spiny dogfish preventing catch from being pumped   aboard the vessel, and requiring a released catch affidavit to be completed for each slippage event;
  • Establishing the ability to consider a river herring catch cap in a future framework;
  • Establishing River Herring Monitoring/Avoidance Areas;
  • Evaluating the joint Sustainable Fisheries Coalition/University of Massachusetts School for Marine Science and Technology/Massachusetts Department of Marine Fisheries bycatch avoidance program investigation of providing real-time, cost-effective information on river herring distribution and fishery encounters in River Herring Monitoring/Avoidance Areas;
  • Expanding at-sea sampling requirements for all mid-water trawl vessels fishing in groundfish closed areas; and
  • Revising list of measures to be implemented via a framework action and/or specifications process to include measures established in  Amendment 5.


However, a few measures in Amendment 5 lacked adequate rationale or development by the Council, and we had utility and legal concerns about implementing these measures so they were disapproved. These measures are: a dealer reporting requirement; a cap that, if achieved, would require vessels discarding catch before it had been sampled by observers (known as slippage) to return to port; and a requirement for 100% observer coverage on Category A and B vessels, coupled with a limited industry contribution of $325 per day toward observer costs.

We expressed our concerns about the implementation of these measures throughout the development of this amendment and, most recently, articulated them in our comment letter (dated June 5, 2012) on the draft environmental impact statement. The proposed rule for Amendment 5 also described our concerns about these measures’ consistency with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. 

Commonly Asked Questions

Q. Why did NOAA Fisheries disapprove the 100% observer requirement for Category A and B herring vessels and requirement that industry pay $325 per day towards observer costs?

A. The at-sea costs associated with an observer in the herring fishery are higher than $325 per day. Currently we do not have a legal mechanism to allow cost-sharing of at-sea costs between NOAA Fisheries and the industry. Budget uncertainties prevent NOAA Fisheries from being able to commit to paying for increased observer coverage in the herring fishery.  Requiring 100-percent observer coverage would amount to an unfunded mandate. Because the New England Fishery Management Council did not identify a funding source to cover all of the increased costs of observer coverage, the measure is not sufficiently developed to approve at this time.

 Q. Did NOAA Fisheries disapprove other measures associated withthe Council’s recommendation for 100% observer coverage on Category A and B vessels?

 A. Yes, because these additional measures are inseparable from the 100% observer coverage requirement. Specific measures that were disapproved include:The 100% coverage requirement would be re-evaluated by the Council 2 years after implementation;

 Q. What are you doing to try to fund increased observer coverage in the herring fishery?

 A. Amendment 5 allowed for status quo observer coverage levels and funding for up to 1 year following its implementation. A technical team, comprised of both Council and NOAA Fisheries staff, is currently working on developing a legal mechanism to fund the at-sea costs associated with increased observer coverage. Even though NOAA Fisheries disapproved the 100% observer coverage requirement, the team will continue to work on finding a funding solution to pay for increased observer coverage in the herring fishery. 

If a funding solution can be developed, and we have available funding to cover our portion of the costs, a measure requiring 100-percent observer coverage on Category A and B vessels could be implemented in a future action, perhaps within the 1-year interim period specified in Amendment 5.  

Q. What measures did NOAA Fisheries approve to reduce slippage?

A. If catch is discarded before it has been made available to the observer, that catch is considered slippage. We approved the Council recommendation prohibiting slippage, which will improve the quality of observer monitored catch data, especially data on the bycatch of species in the herring fishery. Consistent with the Council recommendation, the only time when slippage will be allowed is when safety, mechanical failure, or spiny dogfish catch would prevent the catch from being brought aboard the vessel.  We also approved the requirement that a released catch affidavit (statement by the vessel operator) be completed for slipped catch, which can provide us with more information about when and why slippage occurs.   

 Q. Why did NOAA Fisheries disapprove the slippage cap?

 A. The Council had recommended that for limited access vessels once 10 slippage events occur in a herring management area by vessels using a particular gear type (including mid-water trawl, bottom trawl, and purse seine) and carrying an observer, the vessel would be required to stop fishing and immediately return to port.

We did not approve this measure due to legal, safety, and fairness concerns. For instance, once a slippage cap has been met (after the 11th slippage event in a management area), the vessel that commits this slippage event would be required to return to port even if had not had a role in the previous 10 events, and even if the slippage was for safety or mechanical reasons. This measure may result in a vessel operator having to choose between ending a trip and bringing catch aboard despite a safety concern. 

Furthermore, there is not strong rationale for the trigger being set at 10 slippage events by area and gear type. Observer data indicate that the number of slippage events is variable across years and gear types and the estimated amount of slipped catch is relatively low (approximately 1.25 percent) compared to total catch. 

For these reasons, we believe the slippage caps are inconsistent with Federal law (Administrative Procedure Act) and National Standards 2 and 10 and had to be disapproved.  

Q. Why did NOAA Fisheries disapprove the dealer reporting requirement?

A. Dealers are currently required to accurately report the weight of fish, obtained by scale weights and/or volumetric estimates. Because the recommended measure does not specify the methods dealers must use to determine weight and allows volumetric estimates, we don’t expect this will change dealer behavior. Therefore, it is not expected to improve accuracy of dealer reported catch weights. 

The Council also recommended that the dealers report methods used to determine relative species composition of purchased catch.  However, it did not provide standards for estimating species composition. Without consistent standards, we would be unable to incorporate this qualitative information into catch monitoring. We disapproved this measure because the utility of the measure does not outweigh the additional reporting and administrative burden on the dealers (inconsistent with National Standard 7 and the Paperwork Reduction Act).

Q. If Amendment 5 will not increase observer coverage or establish a slippage cap, does the amendment contain other improvements to catch monitoring?

A. Yes. It contains a number of measures including: (1) Revising regulatory definitions to help improve the accuracy of reporting; (2) expanding trip notification requirements to help place observers on vessels; (3) expanding vessel requirements to help observers collect catch information in a safe and efficient way; (4) prohibiting slippage, with exceptions for safety concerns, mechanical failure, and spiny dogfish preventing catch from being pumped aboard the vessel, and requiring a released catch affidavit to be completed for each slippage event to help improve catch data; and (5) requiring 100% observer coverage on mid-water trawl vessels fishing in groundfish closed areas to help improve catch data; (6) establishing the River Herring Monitoring/Avoidance Areas to help improve bycatch data; and (7) evaluating the effectiveness of the voluntary river herring bycatch avoidance program to help improve our understanding of interactions with river herring.

Q. Are you doing anything else to help river herring?

A. Yes. We have supported both financially and in staff time a number of efforts over many years to help restore river herring habitat and river herring populations and the ecosystems that support them.  Some of these projects are just getting underway and others are already generating results. From 2010-2013, the NOAA Restoration Center funded approximately 67 projects that provided fish passage to over 6,800 acres (27.5 sq km) of river herring habitat along the East Coast from Florida to Maine. And, these projects are having success. For instance, in 2007, we helped to install two fishways on the Acushnet River in Massachusetts. Since then, there has been an astounding 1,140% increase in migrating herring able to access prime spawning grounds, according to data collected by the state.  We have also supported several projects on the Penobscot, St. Croix, Susquehanna river basins and in the Chesapeake Bay and Hudson River estuary that should all benefit river herring.