Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Atlantic Herring Fishery; Framework Adjustment 6 and the 2019-2021 Atlantic Herring Fishery Specifications
| Published date | 28 January 2020 |
| Citation | 85 FR 4932 |
| Record Number | 2020-01078 |
| Section | Proposed rules |
| Court | National Oceanic And Atmospheric Administration |
Federal Register, Volume 85 Issue 18 (Tuesday, January 28, 2020)
[Federal Register Volume 85, Number 18 (Tuesday, January 28, 2020)]
[Proposed Rules]
[Pages 4932-4943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01078]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 200115-0019]
RIN 0648-BJ13
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Atlantic Herring Fishery; Framework Adjustment 6 and the
2019-2021 Atlantic Herring Fishery 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: We are proposing regulations to implement Framework Adjustment
6 to the Atlantic Herring Fishery Management Plan, including the 2019-
2021 fishery specifications and management measures, as recommended by
the New England Fishery Management Council. In addition, Framework 6
would update the overfished and overfishing definitions for the herring
fishery and suspend the carryover of unharvested catch for 2020-2021.
The specifications and management measures are intended to meet
conservation objectives while providing sustainable levels of access to
the fishery. We are also proposing updating and clarifying specific
herring regulations.
DATES: Public comments must be received by February 12, 2020.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2019-0144, by either 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-2019-0144, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Michael Pentony, Regional
Administrator, 55 Great Republic Drive, Gloucester, MA 01930. Mark the
outside of the envelope, ``Comments on Atlantic Herring Framework 6.''
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 us. All comments received are a part of the
public record
[[Page 4933]]
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. We will accept anonymous comments (enter ``N/A''
in the required fields if you wish to remain anonymous).
Copies of this action, including the Environmental Assessment and
the Regulatory Impact Review/Initial Regulatory Flexibility Analysis
(EA/RIR/IRFA) prepared in support of this action, are available at:
https://s3.amazonaws.com/nefmc.org/Herring-FW6-DRAFT-final-submission.pdf, or from Thomas A. Nies, Executive Director, New England
Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA
01950. The supporting documents are also accessible via the internet
at: https://www.regulations.gov/.
FOR FURTHER INFORMATION CONTACT: Laura Hansen, Fishery Management
Specialist, 978-281-9225.
SUPPLEMENTARY INFORMATION:
Background
Regulations implementing the Atlantic Herring Fishery Management
Plan (FMP) for herring are located at 50 CFR part 648, subpart K.
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; domestic annual processing; U.S. at-sea processing; border
transfer; the sub-ACL for each management area, including seasonal
periods as specified at Sec. 648.201(d) and modifications to sub-ACLs
as specified at Sec. 648.201(f); and research set-aside (RSA) (up to 3
percent of the sub-ACL from any management area) for up to 3 years.
These regulations also allow the Council to recommend river herring and
shad catch caps as part of the specifications.
Under the Magnuson-Stevens Fishery Conservation and Management Act
(MSA), NMFS is required to publish proposed rules for comment after
preliminarily determining whether they are consistent with applicable
law. The MSA permits NMFS to approve, partially approve, or disapprove
framework adjustment measures proposed by the Council based only on
whether the measures are consistent with the fishery management plan,
plan amendment, the MSA and its National Standards, and other
applicable law. Otherwise, NMFS must defer to the Council's policy
choices. Under the regulations guiding the herring specifications
process, NMFS must review the Council's recommended specifications and
publish notice proposing specifications, clearly noting the reasons for
any differences from the Council's recommendations. NMFS is proposing
and seeking comment on measures to implement Framework 6 as well as
specifications and river herring/shad catch caps for the herring
fishery, consistent with the Council's recommendations.
The Northeast Fisheries Science Center has updated its schedule for
stock assessments, and will now hold herring assessments every 2 years,
with the next scheduled for June 2020. Accordingly, the Council and
NMFS now plan to develop specifications every two years for the
upcoming three-year cycle. For example, the Council and NMFS will
develop herring specifications in the summer/fall of 2020 for the 2021-
2023 fishing years.
In June 2018, a new stock assessment for herring was completed. The
assessment concluded that although herring were not overfished and
overfishing was not occurring in 2017, poor recruitment would likely
result in a substantial decline in herring biomass over the next
several years. The stock assessment estimated that recruitment was at
historic lows during the most recent five years (2013-2017), but
projected that biomass could increase after reaching a low in 2019 if
recruitment returns to average levels. The final stock assessment
summary report is available on the Center's website
(www.nefsc.noaa.gov/publications/).
Based on the stock assessment and at the request of the Council, we
reduced the 2018 ACL in August 2018 (83 FR 42450) (from 104,800 mt to
49,900 mt) and the 2019 ACL in February 2019 (84 FR 2760) (from 49,900
mt to 15,065 mt) through inseason adjustments to prevent overfishing
and lower the risk of the stock becoming overfished. The ACL reduction
for 2018 ensured at least a 50-percent probability of preventing
overfishing, while the ACL reduction for 2019 reflected the Council's
risk policy for herring and was consistent with the new ABC control
rule developed in Amendment 8 to the Herring FMP. The MSA requires NMFS
to notify the Council if the status of fishery has become overfished or
is approaching the condition of being overfished. According to the Act,
``a fishery shall be classified as approaching a condition of being
overfished if, based on trends in fishing effort, fishery resource
size, and other appropriate factors, the Secretary estimates that the
fishery will become overfished within two years.'' Within 2 years of
such notifications, the Council shall prepare an action to prevent
overfishing from occurring. In February 2019, we notified the Council
that herring was approaching an overfished condition.
Proposed Specifications
At its June 2019 meeting, the Council recommended maintaining
status quo catch limits for 2019 and reducing catch limits for 2020 and
2021 (see Table 1). This rule proposes herring specifications for 2019-
2021 consistent with the Council's recommendations. These
specifications are intended to provide for a sustainable herring
fishery and to be consistent with the Council's harvest policy for
herring. Although the 2019 fishing year has ended, the Herring FMP
requires NMFS to set the specifications for the herring fishery for 3
years after consideration of the Council's recommendations. The
Council's Framework 6 document fully analyzes maintaining status quo
2019 specifications for the remainder of that fishing year. Although
this action would reaffirm the 2019 specifications implemented in the
inseason action that published in February 2019, this rule focuses on
the 2020-2021 specifications.
Table 1--Comparison of the Proposed Atlantic Herring 2020-2021
Specifications (mt) to 2019
------------------------------------------------------------------------
2019 2020-2021
------------------------------------------------------------------------
Overfishing Limit................. 30,668 41,830--2020
69,064--2021
Acceptable Biological Catch....... 21,266 16,131
Management Uncertainty............ 6,200 4,560
Optimum Yield/Annual Catch Limit.. * 15,065 * 11,571
[[Page 4934]]
Domestic Annual Harvest........... 15,065 11,571
Border Transfer................... 0 100
Domestic Annual Processing........ 15,065 11,471
U.S. At-Sea Processing............ 0 0
Area 1A Sub-ACL (28.9%)........... * 4,354 * 3,344
Area 1B Sub-ACL (4.3%)............ 647 498
Area 2 Sub-ACL (27.8%)............ 4,188 3,217
Area 3 Sub-ACL (39%).............. 5,876 4,513
Fixed Gear Set-Aside.............. 39 30
Research Set-Aside................ + +
------------------------------------------------------------------------
* If New Brunswick weir landings are less than 2,942 mt through October
1, then 1,000 mt will be subtracted from the management uncertainty
buffer and reallocated to the Area 1A sub-ACL and ACL. Thus, the Area
1A sub-ACL would increase to 4,344 mt, and the ACL would increase to
12,571 mt.
+ 3 percent of each sub-ACL.
Several factors contributed to the Council's ABC recommendations
for 2020-2021. The ABC is reduced from the OFL to account for
scientific uncertainty. The Council's Scientific and Statistical
Committee (SSC) and the Council determined that a conservative method
of management, specifically one that accounts for scientific
uncertainty, was essential due to the current status of the herring
stock and the uncertainty surrounding estimates of biomass and
recruitment. In September 2018, the Council adopted Amendment 8, which
included a new ABC control rule intended to reduce the available
harvest to explicitly account for herring's role as forage in the
ecosystem. As with the 2019 ABC, the 2020 ABC was developed consistent
with the Council's harvest policy for herring in the new control rule.
For 2021, the SSC was uncomfortable with increasing the ABC based on
the recent assessment's projection that recruitment would increase from
historical lows to average levels. Therefore, the SSC and Council
recommended maintaining the 2020 ABC for 2021. The 2020 stock
assessment is expected to update recruitment information and allow the
Council to reconsider the 2021 ABC for the next specifications.
The ACL is reduced from ABC to account for management uncertainty.
Currently, although the FMP allows for consideration of other aspects
of management uncertainty (e.g., uncertainty around discard estimates
of herring caught in Federal and state waters), the only source for
management uncertainty that is applied to the 2020-2021 ABCs are
landings in the New Brunswick weir fishery. Because weir fishery
landings can be highly variable, fluctuating with effort and herring
availability, the Council recommended a management uncertainty buffer
of 4,560 mt, consistent with average landings in the New Brunswick weir
fishery over the last 10 years (2009-2018). The resulting ACL for both
2020 and 2021 would be 11,571 mt. The Council also recommended a
provision that if weir fishery landings are less than 2,942 mt through
October 1, NMFS would subtract 1,000 mt from the management uncertainty
buffer and reallocate that 1,000 mt to the Area 1A sub-ACL and ACL.
Currently, this provision is allowed if New Brunswick weir landings are
less than 4,000 mt through October 1.
Border transfer is a processing allocation available to Canadian
dealers that is included in, and does not reduce, the domestic catch
limits. The MSA provides for the issuance of permits to Canadian
vessels transporting U.S. harvested herring to Canada for sardine
processing. The Council recommended 100 mt for border transfer for 2020
and 2021. The amount specified for border has equaled 4,000 mt since
2000, but we reduced it to 0 mt as part of the 2019 inseason
adjustment. The Council recommended 100 mt for border transfer in case
there continues to be Canadian interest in transporting herring for
sardine processing.
The Council recommended maintaining status quo river herring/shad
catch caps for 2020-2021 (see Table 2). These catch caps were
originally set for the fishery in the 2016-2018 specifications, and we
maintained them in the inseason adjustment for 2019. Catch is tracked
against river herring/shad catch caps on trips landing more than 6,600
lb (3,000 kg) of herring. Once a catch cap is reached, the possession
limit for herring vessels using that gear type and fishing in that area
(or the corresponding catch cap closure area) is reduced to 2,000 lb
(907 kg) of herring for the remainder of the fishing year. These caps
are intended to meet the original catch cap goals to provide a strong
incentive for the herring fleet to continue to reduce river herring and
shad catch, while allowing the fleet to fully harvest the herring ACL.
Table 2--Proposed River Herring/Shad Catch Caps (mt) for 2020-2021
----------------------------------------------------------------------------------------------------------------
Southern New
Gulf of Maine Cape Cod England/Mid- Total
Atlantic
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Midwater Trawl.................................. 76.7 32.4 129.6 238.7
Bottom Trawl.................................... n/a n/a 122.3 122.3
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The Council recommended status quo methods to set all other herring
specifications, including the management area sub-ACLs, fixed gear set-
aside, and research set-aside.
Other Proposed Measures
Framework 6 would update the ``overfished'' and ``overfishing''
definitions to make them more
[[Page 4935]]
consistent with the 2018 herring stock assessment and definitions used
for other stocks in the region. The updated definitions are:
The stock is considered overfished if stock biomass is less than
\1/2\ the stock biomass associated with the Maximum Sustainable Yield
(MSY) level or its proxy (e.g., Spawning Stock Biomass at MSY (SSBMSY)
or proxy). The stock is considered subject to overfishing if the
estimated fishing mortality rate (F) exceeds the fishing mortality rate
associated with the MSY level or its proxy (e.g., FMSY or proxy).
Over time, the parameters used to assess the herring stock have
changed, and so have the corresponding projections used to evaluate
stock status and set catch levels. The updated definition is more
flexible because it could incorporate any estimate of biomass that is
warranted (total biomass, SSB, or relevant proxy), dependent on what is
used in the stock assessment and considered the best available science.
The new definitions are consistent with many overfishing and overfished
definitions used in the region, as well as parameters in the new ABC
control rule developed in Amendment 8.
Currently, regulations at Sec. 648.201 require that up to 10
percent of the unharvested catch in a herring management area shall be
carried over and added to that area's sub-ACL for the fishing year
following when total catch is determined. For example, total catch for
2018 would be determined in 2019. If there was unharvested catch in
2018, the unharvested catch in a management area (up to 10 percent of
the initial sub-ACL for that area) would be added to the area's sub-ACL
for 2020. This carryover increases the sub-ACL for that management
area, but it does not increase the total ACL.
Under Framework 6, carryover of unharvested catch would be
suspended for the 2020 and 2021, such that unharvested catch in 2018
and 2019 would not be added to sub-ACLs for 2020 and 2021,
respectively. Suspending carryover is proposed because the amount of
carryover from 2018 (just under 5,000 mt) is substantial relative to
the ACL for 2020 and 2021 (11,571 mt), and could have unintended
consequences on the stock or fishery. For example, if carryover is
harvested in specific management areas early in the year, other areas
that are typically fished later in the year may be constrained by the
ACL such that the sub-ACLs in those areas cannot be fully harvested. To
date, catch in 2019 is less than 85 percent of the ACL for 2019 (15,065
mt), so there may also be a substantial amount of unharvested catch
that would have otherwise been carried over relative to the reduced ACL
for 2021 (11,571 mt). Furthermore, given the low estimate of herring
biomass, concentrating fishing effort and catch in certain management
areas may have negative impacts on the herring stock. Continuation of
the suspension of carryover into 2021 is consistent with the Council's
conservative management due to the current status of the herring stock
and the uncertainty surrounding estimates of biomass and recruitment.
Proposed Clarifications
We are proposing the following clarifications to regulations for
fisheries of the Northeastern United States under the authority of
section 305(d) to the MSA, which provides that the Secretary of
Commerce may promulgate regulations necessary to carry out an FMP or
the MSA.
First, in Sec. Sec. 648.4, 648.7, 648.10, 648.11, 648.14, 648.15,
648.80, 648.201, 648.202, 648.204, and 648.205, this rule proposes
simplifying the names of herring vessel permits. Currently, each
herring vessel permit has two names used in regulations, the first name
specifies the permit type (i.e., limited or open access) and herring
management area and the second name assigns a category letter to each
permit type. For example, the All Areas Limited Access Herring Permit
is also known as a Category A Herring Permit. This rule proposes
simplifying references to herring vessel permits by only using the
category name in regulation. This clarification is intended to aid in
the understandability of herring regulations as most stakeholders refer
to herring vessel permits by category name.
Second, this rule proposes clarifying the transiting and pre-
landing prohibitions for the herring fishery in Sec. 648.14. This rule
would clarify that vessels are prohibited from transiting Area 1A
during June through September with midwater gear onboard, unless gear
is properly stowed and not available for immediate use, consistent with
Sec. 648.2. This rule would also clarify that herring vessels are
required to notify NMFS of offloading through the vessel monitoring
system of the time and place of offloading at least 6 hours prior to
landing or, if fishing ends less than 6 hours before landing, as soon
as the vessel stops catching fish. Both of these clarifications
currently exist elsewhere in the regulations and this rule would update
regulations in Sec. 648.14 accordingly.
Third, this rule proposes updating terminology in Sec. 648.200.
This rule would update the definition of OY consistent with new
National Standard guidance for OY. This rule would also update
terminology to reflect that the Atlantic States Marine Fisheries
Commission's (Commission's) Herring Section is now a Herring Board and
that the Commission's Atlantic Herring Plan Review Team is now a
Technical Committee.
Classification
The NMFS Assistant Administrator has determined that this proposed
rule is consistent with the Herring FMP, national standards and other
provisions of the MSA, and other applicable law.
This proposed rule has been preliminarily determined to be not
significant for purposes of Executive Order (E.O.) 12866.
This proposed rule is not an Executive Order 13771 regulatory
action because this rule is not significant under Executive Order
12866.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for
this proposed rule, as required by section 603 of the Regulatory
Flexibility Act (RFA), 5 U.S.C. 603. The IRFA describes the economic
impact that this proposed rule would have on small entities, including
small businesses, and also determines ways to minimize these impacts.
The IRFA includes this section of the preamble to this rule and
analyses contained in the EA/RIR/IRFA for this action. A copy of the
full analysis is available from the Council (see ADDRESSES). A summary
of the EA and IRFA follows.
Description of the Reasons Why Action by the Agency Is Being Considered
and Statement of the Objectives of, and Legal Basis for, the Proposed
Rule
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 This
Proposed Rule Would Apply
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (see 50 CFR 200.2). A business primarily
engaged in commercial fishing (NAICS code 11411) is classified as a
small business if it is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and has
combined annual receipts not in excess of $11 million for all its
affiliated operations worldwide.
[[Page 4936]]
For the purposes of this analysis, ownership entities are defined
by those entities with common ownership personnel as listed on permit
application documentation. Permits with identical ownership personnel
are categorized as a single entity. For example, if five permits have
the same seven personnel listed as co-owners on their application
paperwork, those seven personnel form one ownership entity, covering
those five permits. If one or several of the seven owners also own
additional vessels, with sub-sets of the original seven personnel or
with new co-owners, those ownership arrangements are deemed to be
separate ownership entities for the purpose of this analysis.
This rule would affect all permitted herring vessels; therefore, a
directly regulated entity is a firm that owns at least one herring
permit. There are many businesses that hold an open-access (Category D)
permit. These businesses catch a small fraction of herring;
furthermore, they are minimally affected by the regulations. Firms are
defined as active in the herring fishery if they landed any herring in
2018. This section describes the directly regulated small entities in
four classes: All permitted firms; all active firms; limited access
permitted firms; and active limited access permitted firms.
In 2018, there were 1,205 firms (1,193 small) that held at least
one herring permit. There were 62 (60 small) active firms that held at
least one herring permit. There were 68 (62 small) firms that held at
least one limited access permit, 31 (29 small) of which were active.
Small entity limited access permit holders as a whole derived
approximately 38 percent of total entity revenue from the herring
fishery. All small entity herring permit holders as a whole derived
approximately 29 percent of total entity revenue from the herring
fishery.
Alternative 1 (no action) serves as a baseline as it would maintain
the ACL from fishing year 2019 in 2020 and 2021 and would make no
changes to the management uncertainty buffers. This analysis focuses on
the ACL alternatives as the other specification alternatives would have
minimal impacts on firms participating in the fishery. The proposed
action would decrease the ACL in 2020 and 2021 from the baseline, as
presented in Table 3.
Table 3--Herring ACL for the Baseline (2019) Compared to Proposed 2020
and 2021 Specifications
------------------------------------------------------------------------
2020 and 2021
Year Baseline specifications
(mt) (mt)
------------------------------------------------------------------------
ACL.......................................... 15,066 11,571
Area 1A Sub-ACL (28.9%)...................... 4,354 3,344
Area 1B Sub-ACL (4.3%)....................... 647 498
Area 2 Sub-ACL (27.8%)....................... 4,188 3,217
Area 3 Sub-ACL (39%)......................... 5,876 4,513
------------------------------------------------------------------------
To examine effects of the preferred alternative this analysis
assumes catch is equal to ACL. Recent catch from the four herring
management areas has frequently been below the ACL and sub-ACLs.
However, recent ACLs have been much higher than the Council's preferred
ACL and portions of the fishery have been restricted due to catch of
non-target species (i.e., river herring and shad). With decreasing ACLs
but status quo non-target species catch caps, excessive catch of non-
target species becomes less likely. The sub-ACL percentages remain
constant between the baseline period (2019) through 2020 and 2021;
therefore, there is an approximate 23-percent decrease in available
catch in each management area from 2019 to 2021. Using this information
we can evaluate the effects of the proposed action on small entity
revenues. The average percentage of total small entity revenue derived
from each management area is listed in Table 4.
Table 4--Average Percentage of Small Entity Revenue From Each Herring
Management Area
------------------------------------------------------------------------
Overall
average
Management area percent entity
revenue
------------------------------------------------------------------------
1A...................................................... 44
1B...................................................... 40
2....................................................... 10
3....................................................... 43
------------------------------------------------------------------------
Seventeen small entities, mainly purse seine vessels, fished for
herring in Area 1A in 2018. Ten of these small entities derived 30
percent or less of total entity revenue from Area 1A. Seven small
entities derived more than 80 percent of total entity revenue from Area
1A. Area 1A generate revenue for more small entities than any other
area; all other areas only have 3 entities deriving more than 80
percent of revenue from herring. Nine small entities fished for herring
in Area 1B in 2018, with 5 entities deriving 30 percent or less from
the area and 4 entities deriving between 70 and 100 percent from 1B.
Thirty-nine small entities fished for herring in Area 2 in 2018.
Twenty-seven of them derived between 0 and 1 percent of total entity
revenue from Area 2, and another 6 entities derived less than 30
percent of entity revenue from Area 2. Four entities derived between 70
and 100 percent of total entity revenue from herring in Area 2.
Finally, 8 small entities fished for herring in Area 3 in 2018. Four of
those entities derived less than 30 percent of total entity revenue
from Areas 3 and 4 entities derived between 70 and 100 percent of total
entity revenue from Area 3.
While the overall fishery ACL will decline by 23 percent, NMFS does
not expect that each of these small entities will have a 23-percent
reduction in herring revenue. Rather, because of the low catch limits,
some companies may decide not to fish for herring in 2020 and 2021 and
would lose 100 percent of revenue from herring. If this happens, the
remaining small entities who fish for herring in 2020 and 2021 may
realize less than 23-percent reduction in revenue from herring, as
there may be fewer vessels herring fishing. Because entities that catch
herring are also active in other fisheries, the reduction in total
revenue for small entities would likely be less than the reduction in
herring revenue. Without being able to predict these specific shifts,
Table 5 estimates the percent change for small entities in total
revenue resulting from a 23-percent reduction in the herring ACL.
Table 5--Estimates of Percent Reduction in Total Small Entity Revenue
From This Action
------------------------------------------------------------------------
Count of small
Percent change in total small entity revenue entities
------------------------------------------------------------------------
0 to 1.................................................. 17
1 to 7.................................................. 4
18 to 23................................................ 8
------------------------------------------------------------------------
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This proposed rule does not introduce any new reporting,
recordkeeping, or other compliance requirements.
Federal Rules Which May Duplicate, Overlap, or Conflict With the
Proposed Rule
This action does not duplicate, overlap, or conflict with any other
Federal rules.
[[Page 4937]]
Description of Significant Alternatives to the Proposed Action Which
Accomplish the Stated Objectives of Applicable Statues and Which
Minimize Any Significant Economic Impact on Small Entities
This rule proposes herring specifications for 2019-2021, consistent
with the Herring FMP's objectives of preventing overfishing while
maximizing social and economic benefits. Non-preferred alternatives
would likely not accomplish these objectives for this action as well as
the proposed action.
Alternative 1 (no action) exceeds the catch limit recommendations
of the SSC and the Council. Alternative 1 is not expected to result in
overfishing, but it has a higher likelihood of resulting in overfishing
than either the proposed action (Alternative 2a) or Alternative 2b
(non-preferred). Given the uncertainty around the stock assessment's
estimates of herring biomass and recruitment, the Council and NMFS did
not select Alternative 1 as the proposed action because of its higher
risk of overfishing. The Council and NMFS determined that implementing
lower catch limits in the short-term is important to reduce the serious
adverse long-term biological and socioeconomic impacts that could occur
if higher limits are implemented.
Alternative 2b used the same process to develop the OFL and ABC as
Alternative 2a, but it incorporated an updated estimate of 2018 catch.
The updated estimate of 2018 catch used to develop Alternative 2b was
about 5,000 mt higher than the 2018 catch estimate used to develop the
Alternative 2a (proposed action). The Council decided to include the
updated catch estimate in a separate alternative (Alternative 2b), so
that the most recent estimate of 2018 catch could be considered, even
though the updated catch estimate was not available when the SSC met to
make ABC recommendations for the 2019-2021. When the 2018 estimate of
catch is increased by about 5,000 mt, it results in lowered OFL and ABC
for 2020 and 2021 compared to Alternative 2a. The Council did not
recommend Alternative 2b for several reasons. First, the SSC did not
have the opportunity to weigh in on this alternative, as the final 2018
numbers were not available when the SSC met and made their
recommendations in October 2018. In addition, Alternative 2b included a
lower ABC and ACL than the proposed action. Given the negative economic
impacts to the herring industry and other stakeholders are already
expected to be substantial with Alternative 2a, the Council and NMFS
determined that the additional small reduction in the risk of
overfishing (1-percent risk with Alternative 2b instead of a 2-percent
risk with Alternative 2a) did not warrant a further reduction in
available catch and associated revenue.
This rule is also proposing changes to the overfished and
overfishing definitions, suspending carryover of unharvested catch, and
clarifying existing regulations. The changes to overfished and
overfishing definitions and clarifications to existing regulations are
not expected to have direct economic impacts on small entities.
Suspending carryover of unharvested catch would reduce available
herring catch and the associated revenue in the short-term, but is
expected to have a low positive impact on small entities in the long-
term. The amount of carryover from 2018 (just under 5,000 mt) is
substantial relative to the ACL for 2020 and 2021 (11,571 mt), and
could have unintended consequences on the stock or fishery. For
example, if carryover is harvested in specific management areas early
in the year, other areas that are typically fished later in the year
may be constrained by the ACL such that the sub-ACLs in those areas
cannot be fully harvested. To date, catch in 2019 is less than 85
percent of the ACL for 2019 (15,065 mt), so there may also be a
substantial amount of unharvested catch that would have otherwise been
carried over relative to the reduced ACL for 2021 (11,571 mt).
Additionally, given the low estimate of herring biomass, concentrating
fishing effort and catch in certain management areas could have
negative impacts on the herring stock. Continuation of the suspension
of carryover into 2021 is consistent the Council's conservative
management due to the current status of the herring stock and the
uncertainty surrounding estimates of biomass and recruitment. For these
reasons, Alternative 1 (no action) would not meet the stated objective
of this action, lowering the risk of overfishing and providing for a
sustainable herring fishery, compared to suspending carryover for 2020
and 2021 under the proposed action.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: January 16, 2019.
Samuel D. Rauch, III,
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. 648.4, revise paragraphs (a)(10)(ii), (iv), and (v) and
remove paragraph (a)(10)(vi) to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(10) * * *
(ii) Atlantic herring carrier. An Atlantic herring carrier must
have been issued and have on board a herring permit and a letter of
authorization to receive and transport Atlantic herring caught by
another permitted fishing vessel or it must have been issued and have
on board a herring permit and have declared an Atlantic herring carrier
trip via VMS consistent with the requirements at Sec. 648.10(m)(1).
Once a vessel declares an Atlantic herring carrier trip via VMS, it is
bound to the VMS operating requirements, specified at Sec. 648.10, for
the remainder of the fishing year. On Atlantic herring carrier trips
under either the letter of authorization or an Atlantic herring carrier
VMS trip declaration, an Atlantic herring carrier is exempt from the
VMS, IVR, and VTR vessel reporting requirements, as specified in Sec.
648.7 and subpart K of this part, except as otherwise required by this
part. If not declaring an Atlantic herring carrier trip via VMS, an
Atlantic herring carrier vessel must request and obtain a letter of
authorization from the Regional Administrator, and there is a minimum
enrollment period of 7 calendar days for a letter of authorization.
Atlantic herring carrier vessels operating under a letter of
authorization or an Atlantic herring carrier VMS trip declaration may
not conduct fishing activities, except for purposes of transport, or
possess any fishing gear on board the vessel capable of catching or
processing herring, and they must be used exclusively as an Atlantic
herring carrier vessel, and they must carry observers if required by
NMFS. While operating under a valid letter of authorization or Atlantic
herring carrier VMS trip declaration, such vessels are exempt from any
herring possession limits associated with the herring vessel permit
categories. Atlantic herring carrier vessels operating under a letter
of authorization or an Atlantic herring carrier VMS trip declaration
may not possess, transfer, or land any species other than Atlantic
herring, except that they may possess Northeast multispecies
transferred by vessels
[[Page 4938]]
issued either a Category A or B Herring Permit, consistent with the
applicable possession limits for such vessels specified at Sec.
648.86(a)(3) and (k).
* * * * *
(iv) Limited access herring permits. (A) A vessel of the United
States that fishes for, possesses, or lands more than 6,600 lb (3 mt)
of herring, except vessels that fish exclusively in state waters for
herring, must have been issued and carry on board either one of the
limited access herring permits described in paragraphs
(a)(10)(iv)(A)(1) through (3) of this section or an open access
Category E Herring Permit (as described in Sec. 648.4(a)(10)(v)(B)),
including both vessels engaged in pair trawl operations.
(1) Category A Herring Permit (All Areas Limited Access Herring
Permit). A vessel may fish for, possess, and land unlimited amounts of
herring from all herring areas, provided the vessel qualifies for and
has been issued this permit, subject to all other regulations of this
part.
(2) Category B Herring Permit (Areas 2 and 3 Limited Access Herring
Permit). A vessel may fish for, possess, and land unlimited amounts of
herring from herring Areas 2 and 3, provided the vessel qualifies for
and has been issued this permit, subject to all other regulations of
this part.
(3) Category C Herring Permit (Limited Access Incidental Catch
Herring Permit). (i) A vessel that does not qualify for either of the
permits specified in paragraphs (a)(10)(iv)(A)(1) and (2) of this
section may fish for, possess, and land up to 55,000 lb (25 mt) of
herring from any herring area, provided the vessel qualifies for and
has been issued this permit, subject to all other regulations of this
part.
(ii) A vessel that does not qualify for a Category A Herring Permit
specified in paragraph (a)(10)(iv)(A)(1) of this section, but qualifies
for the Category B Herring Permit specified in paragraph
(a)(10)(iv)(A)(2) of this section, may fish for, possess, and land up
to 55,000 lb (25 mt) of herring from Area 1, provided the vessel
qualifies for and has been issued this permit, subject to all other
regulations of this part.
(B) Eligibility for Category A and B Herring Permits, and
Confirmation of Permit History (CPH). A vessel is eligible for and may
be issued either a Category A or B Herring Permit if it meets the
permit history criteria in paragraph (a)(10)(iv)(B)(1) of this section
and the relevant landing requirements in paragraphs (a)(10)(iv)(B)(2)
and (3) of this section.
(1) Permit history criteria for Category A and B Herring Permits.
(i) The vessel must have been issued a Federal herring permit (Category
1 or 2) that was valid as of November 10, 2005; or
(ii) The vessel is replacing a vessel that was issued a Federal
herring permit (Category 1 or 2) between November 10, 2003, and
November 9, 2005. To qualify as a replacement vessel, the replacement
vessel and the vessel being replaced must both be owned by the same
vessel owner; or, if the vessel being replaced was sunk or destroyed,
the vessel owner must have owned the vessel being replaced at the time
it sunk or was destroyed; or, if the vessel being replaced was sold to
another person, the vessel owner must provide a copy of a written
agreement between the buyer of the vessel being replaced and the owner/
seller of the vessel, documenting that the vessel owner/seller retained
the herring permit and all herring landings history.
(2) Landings criteria for the Category A Herring Permit--(i) The
vessel must have landed at least 500 mt of herring in any one calendar
year between January 1, 1993, and December 31, 2003, as verified by
dealer reports submitted to NMFS or documented through valid dealer
receipts, if dealer reports were not required by NMFS. In those cases
where a vessel has sold herring but there are no required dealer
receipts, e.g., transfers of bait at sea and border transfers, the
vessel owner can submit other documentation that documents such
transactions and proves that the herring thus transferred should be
added to their landings history. The owners of vessels that fished in
pair trawl operations may provide landings information as specified in
paragraph (a)(10)(iv)(B)(2)(iii) of this section. Landings made by a
vessel that is being replaced may be used to qualify a replacement
vessel consistent with the requirements specified in paragraph
(a)(10)(iv)(B)(1)(ii) of this section and the permit splitting
prohibitions in paragraph (a)(10)(iv)(N) of this section.
(ii) Extension of eligibility period for landings criteria for
vessels under construction, reconstruction, or purchase contract. An
applicant who submits written evidence that a vessel was under
construction, reconstruction, or was under written contract for
purchase as of December 31, 2003, may extend the period for determining
landings specified in paragraph (a)(10)(iv)(B)(2)(i) of this section
through December 31, 2004.
(iii) Landings criteria for vessels using landings from pair trawl
operations. To qualify for a limited access permit using landings from
pair trawl operations, the owners of the vessels engaged in that
operation must agree on how to divide such landings between the two
vessels and apply for the permit jointly, as verified by dealer reports
submitted to NMFS or valid dealer receipts, if dealer reports were not
required by NMFS.
(3) Landings criteria for the Category B Herring Permit. (i) The
vessel must have landed at least 250 mt of herring in any one calendar
year between January 1, 1993, and December 31, 2003, as verified by
dealer reports submitted to NMFS or documented through valid dealer
receipts, if dealer reports were not required by NMFS. In those cases
where a vessel has sold herring but there are no required dealer
receipts, e.g., transfers of bait at sea and border transfers, the
vessel owner can submit other documentation that documents such
transactions and proves that the herring thus transferred should be
added to their landings history. The owners of vessels that fished in
pair trawl operations may provide landings information as specified in
paragraph (a)(10)(iv)(B)(2)(iii) of this section. Landings made by a
vessel that is being replaced may be used to qualify a replacement
vessel consistent with the requirements specified in paragraph
(a)(10)(iv)(B)(1)(ii) of this section and the permit splitting
prohibitions in paragraph (a)(10)(iv)(N) of this section.
(ii) Extension of eligibility period for landings criteria for
vessels under construction, reconstruction or purchase contract. An
applicant who submits written evidence that a vessel was under
construction, reconstruction, or was under written contract for
purchase as of December 31, 2003, may extend the period for determining
landings specified in paragraph (a)(10)(iv)(B)(3)(i) of this section
through December 31, 2004.
(iii) Landings criteria for vessels using landings from pair trawl
operations. See paragraph (a)(10)(iv)(B)(2)(iii) of this section.
(4) CPH. A person who does not currently own a fishing vessel, but
owned a vessel that satisfies the permit eligibility requirements in
paragraph (a)(10)(iv)(B) of this section that has sunk, been destroyed,
or transferred to another person, but that has not been replaced, may
apply for and receive a CPH that allows for a replacement vessel to
obtain the relevant limited access herring permit if the fishing and
permit history of such vessel has been retained lawfully by the
applicant as specified in paragraph (a)(10)(iv)(B)(1)(ii) of this
section and consistent with (a)(10)(iv)(N) of this section.
(C) Eligibility for Category C Herring Permit, and CPH. A vessel is
eligible for and may be issued a Category C Herring
[[Page 4939]]
Permit if it meets the permit history criteria specified in paragraph
(a)(10)(iv)(C)(1) of this section and the landings criteria in
paragraph (a)(10)(iv)(C)(2) of this section.
(1) Permit history criteria. (i) The vessel must have been issued a
Federal permit for Northeast multispecies, Atlantic mackerel, Atlantic
herring, longfin or Illex squid, or butterfish that was valid as of
November 10, 2005; or
(ii) The vessel is replacing a vessel that was issued a Federal
permit for Northeast multispecies, Atlantic mackerel, Atlantic herring,
longfin or Illex squid, or butterfish that was issued between November
10, 2003, and November 9, 2005. To qualify as a replacement vessel, the
replacement vessel and the vessel being replaced must both be owned by
the same vessel owner; or, if the vessel being replaced was sunk or
destroyed, the vessel owner must have owned the vessel being replaced
at the time it sunk or was destroyed; or, if the vessel being replaced
was sold to another person, the vessel owner must provide a copy of a
written agreement between the buyer of the vessel being replaced and
the owner/seller of the vessel, documenting that the vessel owner/
seller retained the herring permit and all herring landings history.
(2) Landings criteria for Category C Herring Permit. (i) The vessel
must have landed at least 15 mt of herring in any calendar year between
January 1, 1988, and December 31, 2003, as verified by dealer reports
submitted to NMFS or documented through valid dealer receipts, if
dealer reports were not required by NMFS. In those cases where a vessel
has sold herring but there are no required dealer receipts, e.g.,
transfers of bait at sea and border transfers, the vessel owner can
submit other documentation that documents such transactions and proves
that the herring thus transferred should be added to the vessel's
landings history. The owners of vessels that fished in pair trawl
operations may provide landings information as specified in paragraph
(a)(10)(iv)(B)(2)(iii) of this section. Landings made by a vessel that
is being replaced may be used to qualify a replacement vessel
consistent with the requirements specified in paragraph
(a)(10)(iv)(B)(1)(ii) of this section and the permit splitting
prohibitions in paragraph (a)(10)(iv)(N) of this section.
(ii) Extension of eligibility period for landings criteria for
vessels under construction, reconstruction or purchase contract. An
applicant who submits written evidence that a vessel was under
construction, reconstruction, or was under written contract for
purchase as of December 31, 2003, may extend the period for determining
landings specified in paragraph (a)(10)(iv)(C)(2)(i) of this section
through December 31, 2004.
(v) Open access herring permits. A vessel that has not been issued
a limited access herring permit may obtain:
(A) A Category D Herring Permit (All Areas Open Access Herring
Permit) to possess up to 6,600 lb (3 mt) of herring per trip from all
herring management areas, limited to one landing per calendar day; and/
or
(B) A Category E Herring Permit (Areas \2/3\ Open Access Herring
Permit) to possess up to 20,000 lb (9 mt) of herring per trip from
Herring Management Areas 2 and 3, limited to one landing per calendar
day, provided the vessel has also been issued a Limited Access Atlantic
Mackerel permit, as defined at Sec. 648.4(a)(5)(iii).
* * * * *
0
3. In Sec. 648.7, paragraph (b)(2) is revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
* * * * *
(b) * * *
(2) IVR system reports--(i) Atlantic herring vessel owners or
operators issued a Category D Herring Permit. The owner or operator of
a vessel issued a Category D Herring Permit to fish for herring must
report catch (retained and discarded) of herring via an IVR system for
each week herring was caught, unless exempted by the Regional
Administrator. IVR reports are not required for weeks when no herring
was caught. The report shall include at least the following
information, and any other information required by the Regional
Administrator: Vessel identification; week in which herring are caught;
management areas fished; and pounds retained and pounds discarded of
herring caught in each management area. The IVR reporting week begins
on Sunday at 0001 hr (12:01 a.m.) local time and ends Saturday at 2400
hr (12 midnight). Weekly Atlantic herring catch reports must be
submitted via the IVR system by midnight each Tuesday, Eastern Time,
for the previous week. Reports are required even if herring caught
during the week has not yet been landed. This report does not exempt
the owner or operator from other applicable reporting requirements of
this section.
(ii) [Reserved]
* * * * *
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4. In Sec. 648.10, paragraphs (b)(8) and (m) are revised to read as
follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(b) * * *
(8) A vessel issued a limited access herring permit (i.e., Category
A, B, or C), or a vessel issued a Category E Herring Permit, or a
vessel declaring an Atlantic herring carrier trip via VMS.
* * * * *
(m) Atlantic herring VMS notification requirements. (1) A vessel
issued a limited access herring permit (i.e., Category A, B, or C) or a
Category E Herring Permit intending to declare into the herring fishery
or a vessel issued a herring permit and intending to declare an
Atlantic herring carrier trip via VMS must notify NMFS by declaring a
herring trip with the appropriate gear code prior to leaving port at
the start of each trip in order to harvest, possess, or land herring on
that trip.
(2) A vessel issued a limited access herring permit (i.e., Category
A, B, or C) or a Category E Herring Permit or a vessel that declared an
Atlantic herring carrier trip via VMS must notify NMFS Office of Law
Enforcement through VMS of the time and place of offloading at least 6
hours prior to landing or, if fishing ends less than 6 hours before
landing, as soon as the vessel stops catching fish. The Regional
Administrator may adjust the prior notification minimum time through
publication of a document in the Federal Register consistent with the
Administrative Procedure Act.
* * * * *
0
5. In Sec. 648.11, paragraphs (m)(1)(i), (iv), and (v) are revised to
read as follows:
Sec. 648.11 Monitoring Coverage.
* * * * *
(m) Atlantic herring monitoring coverage--(1) Monitoring
requirements. (i) At least 48 hours prior to the beginning of any trip
on which a vessel may harvest, possess, or land Atlantic herring, a
vessel issued a limited access herring permit or a vessel issued a
Category E Herring Permit on a declared herring trip or a vessel issued
a Category D Herring Permit fishing with midwater trawl gear in
Management Areas 1A, 1B, and/or 3, as defined in Sec. 648.200(f)(1)
and (3), and herring carriers must provide notice of the following
information to NMFS: Vessel name, permit category, and permit number;
contact name for coordination of observer deployment; telephone number
for contact; the date, time, and port of departure; gear type; target
species; and intended area of fishing, including whether the vessel
intends to engage in
[[Page 4940]]
fishing in the Northeast Multispecies Closed Areas (Closed Area I North
(Sec. 648.81(c)(3)), Closed Area II (Sec. 648.81(a)(5)), Cashes Ledge
Closure Area (Sec. 648.81(a)(3)), and Western GOM Closure Area (Sec.
648.81(a)(4))) at any point in the trip. Trip notification calls must
be made no more than 10 days in advance of each fishing trip. The
vessel owner, operator, or manager must notify NMFS of any trip plan
changes at least 12 hours prior to vessel departure from port.
* * * * *
(iv) If a vessel issued a Category A or B Herring Permit slips
catch for any of the reasons described in paragraph (m)(4)(i) of this
section, the vessel operator must move at least 15 nm (27.78 km) from
the location of the slippage event before deploying any gear again, and
must stay at least 15 nm (27.78 km) away from the slippage event
location for the remainder of the fishing trip.
(v) If catch is slipped by a vessel issued a Category A or B
Herring Permit for any reason not described in paragraph (m)(4)(i) of
this section, the vessel operator must immediately terminate the trip
and return to port. No fishing activity may occur during the return to
port.
* * * * *
0
6. In Sec. 648.14, revise paragraphs (k)(1)(i)(D); (r)(1)(vi)(A),
(r)(1)(vii)(D) and (E), (r)(1)(viii)(B) and (C), (r)(2), and remove
paragraph (r)(1)(viii)(D) to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(k) * * *
(1) * * *
(i) * * *
(D) Any haddock, and up to 100 lb (45 kg) of other regulated NE
multispecies other than haddock, were harvested by a vessel issued a
Category A or B Herring Permit on a declared herring trip, regardless
of gear or area fished, or a vessel issued a Category C and/or a
Category D or E Herring Permit that fished with midwater trawl gear,
pursuant to the requirements in Sec. 648.80(d) and (e), and such fish
are not sold for human consumption.
* * * * *
(r) * * *
(1) * * *
(vi) Area requirements. (A) For the purposes of observer
deployment, fail to notify NMFS at least 72 hours prior to departing on
a declared herring trip with a vessel issued a Category A or B Herring
Permit and fishing with midwater trawl or purse seine gear, or on a
trip with a vessel issued a Category C and/or Category D or E Herring
Permit that is fishing with midwater trawl gear in Management Areas 1A,
1B, and/or 3, as defined in Sec. 648.200(f)(1) and (3), pursuant to
the requirements in Sec. 648.80(d) and (e).
* * * * *
(vii) * * *
(D) Transit Area 1A from June 1 through September 30 with more than
2,000 lb (907.2 kg) of herring while having on board midwater trawl
gear that is not properly stowed or available for immediate use as
defined in Sec. 648.2.
(E) Discard haddock at sea that has been brought on deck, or pumped
into the hold, of a vessel issued a Category A or B Herring Permit
fishing on a declared herring trip, regardless of gear or area fished,
or on a trip with a vessel issued a Category C and/or Category D or E
Herring Permit fishing with midwater trawl gear, pursuant to the
requirements in Sec. 648.80(d) and (e).
* * * * *
(viii) * * *
(B) Fail to notify NMFS Office of Law Enforcement through VMS of
the time and place of offloading at least 6 hours prior to landing or,
if fishing ends less than 6 hours before landing, as soon as the vessel
stops catching fish, if a vessel has been issued a limited access
herring permit or a Category E Herring Permit or has declared an
Atlantic herring carrier trip via VMS.
(C) Fail to declare via VMS into the herring fishery by entering
the appropriate herring fishery code and appropriate gear code prior to
leaving port at the start of each trip to harvest, possess, or land
herring, if a vessel has been issued a Limited Access Herring Permit or
issued a Category E Herring Permit or is intending to act as an
Atlantic herring carrier.
* * * * *
(2) Vessel and operator permit holders. It is unlawful for any
person owning or operating a vessel holding a valid Federal Atlantic
herring permit, or issued an operator's permit, to do any of the
following:
(i) Sell, purchase, receive, trade, barter, or transfer haddock or
other regulated NE multispecies (cod, witch flounder, plaice,
yellowtail flounder, pollock, winter flounder, windowpane flounder,
redfish, white hake, and Atlantic wolffish); or attempt to sell,
purchase, receive, trade, barter, or transfer haddock or other
regulated NE multispecies for human consumption; if the regulated NE
multispecies are landed by a vessel issued a Category A or B Herring
Permit fishing on a declared herring trip, regardless of gear or area
fished, or by a vessel issued a Category C Herring Permit and/or a
Category D or E Herring Permit fishing with midwater trawl gear
pursuant to Sec. 648.80(d).
(ii) Fail to comply with requirements for herring processors/
dealers that handle individual fish to separate out, and retain, for at
least 12 hours, all haddock offloaded from a vessel issued a Category A
or B Herring Permit that fished on a declared herring trip regardless
of gear or area fished, or by a vessel issued a Category C Herring
Permit and/or a Category D or E Herring Permit that fished with
midwater trawl gear pursuant to Sec. 648.80(d).
(iii) Sell, purchase, receive, trade, barter, or transfer; or
attempt to sell, purchase, receive, trade, barter, or transfer; to
another person, any haddock or other regulated NE multispecies (cod,
witch flounder, plaice, yellowtail flounder, pollock, winter flounder,
windowpane flounder, redfish, white hake, and Atlantic wolffish)
separated out from a herring catch offloaded from a vessel issued a
Category A or B Herring Permit that fished on a declared herring trip
regardless of gear or area fished, or by a vessel issued a Category C
Herring Permit and/or a Category D or E Herring Permit that fished with
midwater trawl gear pursuant to Sec. 648.80(d).
(iv) While operating as an at-sea herring processor, fail to comply
with requirements to separate out and retain all haddock offloaded from
a vessel issued a Category A or B Herring Permit that fished on a
declared herring trip regardless of gear or area fished, or by a vessel
issued a Category C Herring Permit and/or a Category D or E Herring
Permit that fished with midwater trawl gear pursuant to Sec.
648.80(d).
(v) Fish with midwater trawl gear in any Northeast Multispecies
Closed Area, as defined in Sec. 648.81(a)(3) through (5) and (c)(3)
and (4), without a NMFS-approved observer on board, if the vessel has
been issued an Atlantic herring permit.
(vi) Slip or operationally discard catch, as defined at Sec.
648.2, unless for one of the reasons specified at Sec. 648.202(b)(2),
if fishing any part of a tow inside the Northeast Multispecies Closed
Areas, as defined at Sec. 648.81(a)(3) through (5) and (c)(3) and (4).
(vii) Fail to immediately leave the Northeast Multispecies Closed
Areas or comply with reporting requirements after slipping catch or
operationally discarding catch, as required by Sec. 648.202(b)(4).
(viii) Slip catch, as defined at Sec. 648.2, unless for one the
reasons specified at Sec. 648.11(m)(4)(i).
[[Page 4941]]
(ix) For vessels with Category A or B Herring Permits, fail to move
15 nm (27.78 km), as required by Sec. 648.11(m)(4)(iv) and Sec.
648.202(b)(4)(iv).
(x) For vessels with Category A or B Herring Permits, fail to
immediately return to port, as required by Sec. 648.11(m)(4)(v) and
Sec. 648.202(b)(4)(iv).
(xi) Fail to complete, sign, and submit a Released Catch Affidavit
as required by Sec. 648.11(m)(8)(iii) and Sec. 648.202(b)(4)(ii).
(xii) Fail to report or fail to accurately report a slippage event
on the Atlantic herring daily VMS catch report, as required by Sec.
648.11(m)(4)(iii) and Sec. 648.202(b)(4)(iii). (xiii) For vessels with
Category A or B Herring Permits, fail to comply with industry-funded
monitoring requirements at Sec. 648.11(m).
(xiv) For a vessel with a Category A or B Herring Permit, fail to
comply with its NMFS-approved vessel monitoring plan requirements, as
described at Sec. 648.11(m).
* * * * *
0
7. In Sec. 648.15, paragraphs (d) and (e) are revised to read as
follows:
Sec. 648.15 Facilitation of enforcement.
* * * * *
(d) Retention of haddock by herring dealers and processors. (1)
Federally permitted herring dealers and processors, including at-sea
processors, that cull or separate out from the herring catch all fish
other than herring in the course of normal operations, must separate
out and retain all haddock offloaded from a vessel issued a Category A
or B Herring Permit that fished on a declared herring trip regardless
of gear or area fished, or by a vessel issued a Category C Herring
Permit and/or a Category D or E Herring Permit that fished with
midwater trawl gear pursuant to Sec. 648.80(d). Such haddock may not
be sold, purchased, received, traded, bartered, or transferred, and
must be retained, after they have been separated, for at least 12 hours
for dealers and processors on land, and for 12 hours after landing by
at-sea processors. The dealer or processor, including at-sea
processors, must clearly indicate the vessel that landed the retained
haddock or transferred the retained haddock to an at-sea processor.
Authorized officers must be given access to inspect the haddock.
(2) All haddock separated out and retained is subject to reporting
requirements specified at Sec. 648.7.
(e) Retention of haddock by herring vessels using midwater trawl
gear. A vessel issued a Category A or B Herring Permit fishing on a
declared herring trip regardless of gear or area fished, or a vessel
issued a Category C Herring Permit and/or a Category D or E Herring
Permit and fishing with midwater trawl gear pursuant to Sec.
648.80(d), may not discard any haddock that has been brought on the
deck or pumped into the hold.
0
8. In Sec. 648.80, paragraphs (d)(4) through (6), and (e)(4) through
(6) are revised to read as follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on
gear and methods of fishing.
* * * * *
(d) * * *
(4) The vessel does not fish for, possess or land NE multispecies,
except that a vessel issued a Category A or B Herring Permit and
fishing on a declared herring trip, regardless of gear or area fished,
or a vessel issued a Category C Herring Permit and/or a Category D or E
Herring Permit and fishing with midwater trawl gear pursuant to
paragraph (d) of this section, may possess and land haddock and other
regulated multispecies consistent with the catch caps and possession
restrictions in Sec. 648.86(a)(3) and (k). Such haddock or other
regulated NE multispecies may not be sold, purchased, received, traded,
bartered, or transferred, or attempted to be sold, purchased, received,
traded, bartered, or transferred for, or intended for, human
consumption. Haddock or other regulated NE multispecies that are
separated out from the herring catch pursuant to Sec. 648.15(d) may
not be sold, purchased, received, traded, bartered, or transferred, or
attempted to be sold, purchased, received, traded, bartered, or
transferred for any purpose. A vessel issued a Category A or B Herring
Permit fishing on a declared herring trip, regardless of gear or area
fished, or a vessel issued a Category C Herring Permit and/or a
Category D or E Herring Permit and fishing with midwater trawl gear
pursuant to paragraph (d) of this section, may not discard haddock that
has been brought on the deck or pumped into the hold;
(5) To fish for herring under this exemption, a vessel issued a
Category A or B Herring Permit fishing on a declared herring trip, or a
vessel issued a Category C Herring Permit and/or a Category D or E
Herring Permit fishing with midwater trawl gear in Management Areas 1A,
1B, and/or 3, as defined in Sec. 648.200(f)(1) and (3), must provide
notice of the following information to NMFS at least 72 hours prior to
beginning any trip into these areas for the purposes of observer
deployment: Vessel name; contact name for coordination of observer
deployment; telephone number for contact; the date, time, and port of
departure; and whether the vessel intends to engage in fishing in
Closed Area I, as defined in Sec. 648.81(c)(3), at any point in the
trip; and
(6) A vessel issued a Category A or B Herring Permit fishing on a
declared herring trip with midwater trawl gear, or a vessel issued a
Category C Herring Permit and fishing with midwater trawl gear in
Management Areas 1A, 1B, and/or 3, as defined at Sec. 648.200(f)(1)
and (3), must notify NMFS Office of Law Enforcement through VMS of the
time and place of offloading at least 6 hours prior to landing or, if
fishing ends less than 6 hours before landing, as soon as the vessel
stops catching fish. The Regional Administrator may adjust the prior
notification minimum time through publication of a notice in the
Federal Register consistent with the Administrative Procedure Act.
* * * * *
(e) * * *
(4) The vessel does not fish for, possess, or land NE multispecies,
except that vessels that have a Category A or B Herring Permit fishing
on a declared herring trip may possess and land haddock or other
regulated species consistent with possession restrictions in Sec.
648.86(a)(3) and (k), respectively. Such haddock or other regulated
multispecies may not be sold, purchased, received, traded, bartered, or
transferred, or attempted to be sold, purchased, received, traded,
bartered, or transferred for, or intended for, human consumption.
Haddock or other regulated species that are separated out from the
herring catch pursuant to Sec. 648.15(d) may not be sold, purchased,
received, traded, bartered, or transferred, or attempted to be sold,
purchased, received, traded, bartered, or transferred for any purpose.
A vessel issued a Category A or B Herring Permit may not discard
haddock that has been brought on the deck or pumped into the hold;
(5) To fish for herring under this exemption, vessels that have a
Category A or B Herring Permit must provide notice to NMFS of the
vessel name; contact name for coordination of observer deployment;
telephone number for contact; and the date, time, and port of
departure, at least 72 hours prior to beginning any trip into these
areas for the purposes of observer deployment; and
(6) All vessels that have a Category A or B Herring Permit must
notify NMFS Office of Law Enforcement through VMS of the time and place
of offloading
[[Page 4942]]
at least 6 hours prior to landing or, if fishing ends less than 6 hours
before landing, as soon as the vessel stops catching fish. The Regional
Administrator may adjust the prior notification minimum time through
publication of a notice in the Federal Register consistent with the
Administrative Procedure Act.
* * * * *
0
9. In Sec. 648.83, paragraph (b)(4) is revised to read as follows:
Sec. 648.83 Multispecies minimum fish sizes.
* * * * *
(b) * * *
(4) Vessels that have a Category A or B Herring Permit may possess
and land haddock and other regulated species that are smaller than the
minimum size specified under Sec. 648.83, consistent with the bycatch
caps specified in Sec. Sec. 648.86(a)(3) and 648.86(k). Such fish may
not be sold for human consumption.
* * * * *
0
10. In Sec. 648.86, paragraphs (a)(3)(i), (a)(3)(ii)(A)(1), and
paragraph (k) are revised to read as follows:
Sec. 648.86 NE Multispecies possession restrictions.
* * * * *
(a) * * *
(3)(i) Incidental catch allowance for some Atlantic herring
vessels. A vessel issued a Category A or B Herring Permit fishing on a
declared herring trip, regardless of gear or area fished, or a vessel
issued a Category C Herring Permit and/or a Category D or E Herring
Permit and fishing with midwater trawl gear pursuant to Sec.
648.80(d), may only possess and land haddock, in accordance with
requirements specified in Sec. 648.80(d) and (e).
(ii) Haddock incidental catch cap. (A)(1) When the Regional
Administrator has determined that the incidental catch allowance for a
given haddock stock, as specified in Sec. 648.90(a)(4)(iii)(D), has
been caught, no vessel issued an Atlantic herring permit and fishing
with midwater trawl gear in the applicable stock area, i.e., the
Herring GOM Haddock Accountability Measure (AM) Area or Herring GB
Haddock AM Area, as defined in paragraphs (a)(3)(ii)(A)(2) and (3) of
this section, may fish for, possess, or land herring in excess of 2,000
lb (907.2 kg) per trip in or from that area, unless all herring
possessed and landed by the vessel were caught outside the applicable
AM Area and the vessel's gear is stowed and not available for immediate
use as defined in Sec. 648.2 while transiting the AM Area. Upon this
determination, the haddock possession limit is reduced to 0 lb (0 kg)
for a vessel issued a Federal Atlantic herring permit and fishing with
midwater trawl gear or for a vessel issued a Category A or B Herring
Permit fishing on a declared herring trip, regardless of area fished or
gear used, in the applicable AM area, unless the vessel also possesses
a NE multispecies permit and is operating on a declared (consistent
with Sec. 648.10(g)) NE multispecies trip. In making this
determination, the Regional Administrator shall use haddock catches
observed by NMFS-approved observers by herring vessel trips using
midwater trawl gear in Management Areas 1A, 1B, and/or 3, as defined in
Sec. 648.200(f)(1) and (3), expanded to an estimate of total haddock
catch for all such trips in a given haddock stock area.
* * * * *
(k) Other regulated NE multispecies possession restrictions for
some Atlantic herring vessels. A vessel issued a Category A or B
Herring Permit on a declared herring trip, regardless of area fished or
gear used, or a vessel issued a Category C Herring Permit and/or a
Category D or E Herring Permit and fishing with midwater trawl gear
pursuant to Sec. 648.80(d), may possess and land haddock, and up to
100 lb (45 kg), combined, of other regulated NE multispecies, other
than haddock, in accordance with the requirements in Sec. 648.80(d)
and (e). Such fish may not be sold for human consumption.
* * * * *
0
11. In Sec. 648.200, paragraphs (a), (b)(1), and (c) are revised to
read as follows:
Sec. 648.200 Specifications.
(a) The Atlantic Herring Plan Development Team (PDT) shall meet at
least every 3 years, but no later than July of the year before new
specifications are implemented, with the Atlantic States Marine
Fisheries Commission's (Commission) Atlantic Herring Technical
Committee (TC) to develop and recommend the following specifications
for a period of 3 years for consideration by the New England Fishery
Management Council's Atlantic Herring Oversight Committee: 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 specified at Sec. 648.201(d) and modifications to sub-ACLs as
specified at Sec. 648.201(f), the amount to be set aside for the RSA
(from 0 to 3 percent of the sub-ACL from any management area), and
river herring and shad catch caps, as specified in Sec. 648.201(a)(4).
Recommended specifications shall be presented to the New England
Fishery Management Council.
(1) The PDT shall meet with the Commission's TC to review the
status of the stock and the fishery and prepare a Stock Assessment and
Fishery Evaluation (SAFE) report at least every 3 years. The Herring
PDT will meet at least once during interim years to review the status
of the stock relative to the overfishing definition if information is
available to do so. When conducting a 3-year review and preparing a
SAFE Report, the PDT/TC will recommend to the Council/Commission any
necessary adjustments to the specifications for the upcoming 3 years.
(2) If the Council determines, based on information provided by the
PDT/TC or other stock-related information, that the specifications
should be adjusted during the 3-year time period, it can do so through
the same process outlined in this section during one or both of the
interim years.
(b) * * *
(1) OFL must be equal to catch resulting from applying the maximum
fishing mortality threshold to a current or projected estimate of stock
size. When the stock is not overfished and overfishing is not
occurring, this is the fishing rate supporting maximum sustainable
yield (FMSY or proxy). Catch that exceeds this amount would
result in overfishing. The stock is considered overfished if stock
biomass is less than \1/2\ the stock biomass associated with the MSY
level or its proxy (e.g., SSBMSY or proxy). The stock is
considered subject to overfishing if the fishing mortality rate exceeds
the fishing mortality rate associated with the MSY level or its proxy
(e.g., FMSY or proxy).
* * * * *
(c) The Atlantic Herring Oversight Committee shall review the
recommendations of the PDT and shall consult with the Commission's
Herring Board. Based on these recommendations and any public comment
received, the Herring Oversight Committee shall recommend to the
Council appropriate specifications for a 3-year period. The Council
shall review these recommendations and, after considering public
comment, shall recommend appropriate 3-year specifications to NMFS.
NMFS shall review the recommendations, consider any comments received
from the Commission, and publish notification in the Federal Register
proposing 3-year specifications. If the proposed specifications differ
from those recommended by the Council, the
[[Page 4943]]
reasons for any differences shall be clearly stated and the revised
specifications must satisfy the criteria set forth in paragraph (b) of
this section.
* * * * *
0
12. In Sec. 648.201, paragraphs (a)(2), (g), and (h) are revised to
read as follows:
Sec. 648.201 AMs and harvest controls.
(a) * * *
(2) When the Regional Administrator has determined that the GOM
and/or GB incidental catch cap for haddock in Sec.
648.90(a)(4)(iii)(D) has been caught, no vessel issued a Federal
Atlantic herring permit and fishing with midwater trawl gear in the
applicable Accountability Measure (AM) Area, i.e., the Herring GOM
Haddock AM Area or Herring GB Haddock AM Area, as defined in Sec.
648.86(a)(3)(ii)(A)(2) and (3) of this part, may fish for, possess, or
land herring in excess of 2,000 lb (907.2 kg) per trip in or from the
applicable AM Area, and from landing herring more than once per
calendar day, unless all herring possessed and landed by a vessel were
caught outside the applicable AM Area and the vessel's gear is not
available for immediate use as defined in Sec. 648.2 while transiting
the applicable AM Area. Upon this determination, the haddock possession
limit is reduced to 0 lb (0 kg) in the applicable AM area for a vessel
issued a Federal Atlantic herring permit and fishing with midwater
trawl gear or for a vessel issued a Category A or B Herring Permit
fishing on a declared herring trip, regardless of area fished or gear
used, in the applicable AM area, unless the vessel also possesses a
Northeast multispecies permit and is operating on a declared
(consistent with Sec. 648.10(g)) Northeast multispecies trip.
* * * * *
(g) Carryover. (1) Subject to the conditions described in this
paragraph (g), 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 catch from Year 1 during Year 2, and
will add carryover to the applicable sub-ACL(s) in Year 3. 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 caught 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 (g).
(2) Carryover of unharvested catch as described in Sec. 648.201(g)
shall not be added to any herring management area's sub-ACL in the 2020
and 2021 herring fishing years.
(h) If NMFS determines that the New Brunswick weir fishery landed
less than 2,942 mt of herring through October 1, NMFS will subtract
1,000 mt from management uncertainty and reallocate that 1,000 mt to
the ACL and Area 1A sub-ACL. NMFS will notify the Council of this
adjustment and publish the adjustment in the Federal Register.
0
13. In Sec. 648.202, paragraph (b)(4)(iv) is revised to read as
follows:
Sec. 648.202 Season and area restrictions.
* * * * *
(b) * * *
(4) * * *
(iv) Comply with the measures to address slippage specified in
Sec. 648.11(m)(4)(iv) and (v) if the vessel was issued a Category A or
B Herring Permit.
* * * * *
0
14. In Sec. 648.204, paragraph (a) is revised to read as follows:
Sec. 648.204 Possession restrictions.
(a) A vessel must be issued and possess a valid Category A, B, C,
or E Herring Permit (as defined in Sec. 648.4(a)(10)(iv) and (v)) to
fish for, possess, or land more than 6,600 lb (3 mt) of Atlantic
herring from any herring management area in the EEZ. A vessel must
abide by any harvest restriction specified in Sec. 648.201 that has
been implemented.
(1) A vessel issued a Category A Herring Permit may fish for,
possess, or land Atlantic herring with no possession restriction from
any of the herring management areas defined in Sec. 648.200(f),
provided none of the accountability measures or harvest restrictions
specified in Sec. 648.201 have been implemented.
(2) A vessel issued only a Category B Herring Permit may fish for,
possess, or land Atlantic herring with no possession restriction only
from Area 2 or Area 3, as defined in Sec. 648.200(f), provided none of
the accountability measures or harvest restrictions specified in Sec.
648.201 have been implemented. Such a vessel may fish in Area 1 only if
issued a Category C or D Herring Permit, and only as authorized by the
respective permit.
(3) A vessel issued a Category C Herring Permit may fish for,
possess, or land up to, but no more than, 55,000 lb (25 mt) of Atlantic
herring in any calendar day, and is limited to one landing of herring
per calendar day, from any management area defined in Sec. 648.200(f),
provided none of the accountability measures or harvest restrictions
specified in Sec. 648.201 have been implemented.
(4) A vessel issued a Category D Herring Permit may fish for,
possess, or land up to, but no more than, 6,600 lb (3 mt) of Atlantic
herring from any herring management area per trip, and is limited to
one landing of herring per calendar day, provided none of the
accountability measures or harvest restrictions specified in Sec.
648.201 have been implemented.
(5) A vessel issued a Category E Herring Permit may fish for,
possess, or land up to, but no more than, 20,000 lb (9 mt) of Atlantic
herring from only Area 2 or Area 3, as defined in Sec. 648.200(f), per
trip, and is limited to one landing of herring per calendar day,
provided none of the accountability measures or harvest restrictions
specified in Sec. 648.201 have been implemented.
(6) A vessel issued a herring permit may possess herring roe
provided that the carcasses of the herring from which it came are not
discarded at sea.
* * * * *
0
15. Sec. 648.205 is revised to read as follows:
Sec. 648.205 VMS requirements.
The owner or operator any vessel issued a Category A, B, C, or E
Herring Permit, with the exception of fixed gear fishermen, must
install and operate a VMS unit consistent with the requirements of
Sec. 648.9. The VMS unit must be installed on board, and must be
operable before the vessel may begin fishing. Atlantic herring carrier
vessels are not required to have VMS. (See Sec. 648.10(m) for VMS
notification requirements.)
[FR Doc. 2020-01078 Filed 1-27-20; 8:45 am]
BILLING CODE 3510-22-P
