Rule2022-15351
Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Herring Fishery; Framework Adjustment 9
Primary source
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Published
July 19, 2022
Effective
August 18, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This rule approves and implements Framework Adjustment 9 to the Atlantic Herring Fishery Management Plan. This action establishes a rebuilding plan for herring and adjusts accountability measure catch threshold triggers when catch exceeds a herring annual catch limit or management area sub-annual catch limit. This action also revises regulatory text that is unnecessary, outdated, or unclear consistent with section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act. This action is necessary to respond to updated scientific information and to achieve the goals and objectives of the fishery management plan. The approved measures are intended to help prevent overfishing, rebuild the overfished herring stock, achieve optimum yield on a continuing basis, and ensure that management measures are based on the best scientific information available.
Full Text
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<title>Federal Register, Volume 87 Issue 137 (Tuesday, July 19, 2022)</title>
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[Federal Register Volume 87, Number 137 (Tuesday, July 19, 2022)]
[Rules and Regulations]
[Pages 42962-42968]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-15351]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No.: 220713-0155]
RIN 0648-BL06
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Atlantic
Herring Fishery; Framework Adjustment 9
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This rule approves and implements Framework Adjustment 9 to
the Atlantic Herring Fishery Management Plan. This action establishes a
rebuilding plan for herring and adjusts accountability measure catch
threshold triggers when catch exceeds a herring annual catch limit or
management area sub-annual catch limit. This action also revises
regulatory text that is unnecessary, outdated, or unclear consistent
with section 305(d) of the Magnuson-Stevens Fishery
[[Page 42963]]
Conservation and Management Act. This action is necessary to respond to
updated scientific information and to achieve the goals and objectives
of the fishery management plan. The approved measures are intended to
help prevent overfishing, rebuild the overfished herring stock, achieve
optimum yield on a continuing basis, and ensure that management
measures are based on the best scientific information available.
DATES: Effective August 18, 2022.
ADDRESSES: Copies of Framework 9, including the Environmental
Assessment (EA) and the Regulatory Impact Review (RIR) prepared by the
New England Fishery Management Council in support of this action, are
available from Thomas A. Nies, Executive Director, New England Fishery
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.
These documents are also accessible via the internet at <a href="https://www.nefmc.org/management-plans/herring">https://www.nefmc.org/management-plans/herring</a> or <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Copies of the small entity compliance guide are available from
Michael Pentony, Regional Administrator, NMFS, Greater Atlantic
Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA
01930-2298, or available on the internet at: <a href="http://www.greateratlantic.fisheries.noaa.gov">http://www.greateratlantic.fisheries.noaa.gov</a>.
FOR FURTHER INFORMATION CONTACT: Maria Fenton, Fishery Management
Specialist, (978) 281-9196, <a href="/cdn-cgi/l/email-protection#1a577b68737b345c7f746e75745a74757b7b347d756c"><span class="__cf_email__" data-cfemail="8ec3effce7efa0c8ebe0fae1e0cee0e1efefa0e9e1f8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
The Council adopted Framework Adjustment 9 to the Atlantic Herring
Fishery Management Plan (FMP) on September 28, 2021. The Council
submitted the framework and draft Environmental Assessment (EA) to NMFS
for review on November 10, 2021. NMFS published a proposed rule for
Framework 9 on March 2, 2022 (87 FR 11680). The 15-day public comment
period for the proposed rule closed on March 17, 2022.
NMFS has approved all of the measures in Framework 9 recommended by
the Council, as described below. This final rule implements Framework
9, which establishes a rebuilding plan for herring and adjusts
accountability measure catch threshold triggers when catch exceeds a
herring annual catch limit or management area sub-annual catch limit.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) allows NMFS to approve, partially approve, or disapprove
measures proposed by the Council based on whether the measures are
consistent with the FMP, the Magnuson-Stevens Act and its National
Standards, and other applicable law. NMFS generally defers to the
Council's policy choices unless there is a clear inconsistency with the
law or the FMP. Details concerning the development of these measures
were contained in the preamble of the proposed rule and are not
repeated here. This final rule also revises regulatory text that is
unnecessary, outdated, or unclear consistent with section 305(d) of the
Magnuson-Stevens Act, which provides authority to the Secretary of
Commerce to promulgate regulations necessary to ensure that amendments
to an FMP are carried out in accordance with the FMP and the Magnuson-
Stevens Act.
Approved Measures
This action approves the management measures proposed in Framework
Adjustment 9 to the Herring FMP. The measures implemented in this final
rule are:
1. Herring Rebuilding Plan
Framework 9 establishes a rebuilding plan for herring that
continues the use of the acceptable biological catch (ABC) control rule
that was implemented through Amendment 8 to the Herring FMP and is
expected to rebuild the stock by fishing year 2026 (the first year that
probability of rebuilding is estimated to be 50 percent or greater).
Under the ABC control rule, when biomass (B) is at or above 50 percent
of the biomass that can support harvest of the maximum sustainable
yield (B<INF>MSY</INF>) or its proxy, ABC is the catch associated with
an F of 80 percent of F<INF>MSY</INF> or its proxy. When biomass falls
below 50 percent of B<INF>MSY</INF> or its proxy, F declines linearly
to 0 at 10 percent of B<INF>MSY</INF> or its proxy. Under the
rebuilding plan, F will range from a low of 0.08 (fishing year 2023) to
a high of 0.43 (fishing years 2025 and 2026) based on current stock
biomass projections. The ABC control rule allows for a maximum F of
0.43 because 0.43 is 80 percent of the current estimate of
F<INF>MSY</INF> (0.54). The rebuilding plan will not make changes to
the fishing year 2022 ABC, so the specifications that the fishery is
currently operating under will not be disrupted.
2. Adjustments to Accountability Measure Catch Threshold Triggers
Framework 9 adjusts AM catch threshold triggers when a herring ACL
or Management Area sub-ACL is exceeded so that an overage of a sub-ACL
in one fishing year will only be deducted in a subsequent fishing year
if the overage exceeds 10 percent of the sub-ACL; and/or if the ACL is
also exceeded. Additionally, if a sub-ACL is exceeded by more than 10
percent and the ACL is not also exceeded, only the portion of the sub-
ACL overage above 10 percent will be deducted from the appropriate sub-
ACL in a subsequent fishing year. Under these regulations, the
following overage scenarios are possible:
<bullet> If catch exceeds a sub-ACL by 10 percent or less but does
not exceed the ACL in a given fishing year, then NMFS will not deduct
any amount of the overage from the applicable sub-ACL or ACL in the
fishing year following total catch determination.
<bullet> If catch exceeds a sub-ACL by more than 10 percent but
does not exceed the ACL in a given fishing year, then NMFS will
subtract the amount of the overage above 10 percent from the applicable
sub-ACL and ACL in the fishing year following total catch
determination. For example, if catch exceeds the Area 1A sub-ACL by 15
percent in a given fishing year and the ACL is not exceeded, the amount
equal to the 5 percent overage will be deducted from the ACL and Area
1A sub-ACL in the fishing year following total catch determination.
<bullet> If catch exceeds a sub-ACL by any amount and also exceeds
the ACL in a given fishing year, then NMFS will subtract the full
amount of the sub-ACL overage from the applicable sub-ACL, and the full
amount of the ACL overage from the ACL, in the fishing year following
total catch determination. For example, if catch exceeds the Area 1A
sub-ACL by 15 percent and the ACL by 5 percent in a given fishing year,
the amount equal to the 15-percent overage will be deducted from the
Area 1A sub-ACL and the amount equal to the 5-percent overage will be
deducted from the ACL in the fishing year following total catch
determination.
<bullet> If catch exceeds the ACL but does not exceed any sub-ACLs
in a given fishing year, then NMFS will subtract the full amount of the
overage from the ACL in the fishing year following total catch
determination. For example, if catch exceeds the herring ACL by 2
percent in a given fishing year and no sub-ACLs are exceeded, the
amount equal to the 2-percent overage will be deducted from the ACL
only in the fishing year following total catch determination. It is
possible for catch to exceed the ACL even if it does not exceed any
sub-ACLs because carryover from a previous fishing year may increase
the applicable sub-ACLs, but not the ACL. Therefore, the sum of the
individual sub-ACLs could exceed the ACL, and the fishery could harvest
more
[[Page 42964]]
than the ACL while staying within sub-ACLs.
3. Revisions and Clarifications to Existing Regulations
This final rule revises regulatory text that is unnecessary,
outdated, or unclear consistent with section 305(d) of the Magnuson-
Stevens Act. The revisions at Sec. 648.13(f)(1)(ii)(B), (f)(2),
(f)(5), and (f)(6) clarify that vessels are not allowed to catch or
transfer at sea more than 40,000 lb (18,143.7 kg) of herring per trip
or calendar day if the vessel is in, or the fish were harvested from, a
management area subject to a 40,000-lb (18,143.7-kg) herring possession
limit. The revisions at Sec. 648.14(r)(1)(ii)(B) clarify that it is
unlawful for any person to land or attempt to land more than the
possession limits specified at Sec. 648.201(a) from a management area
subject to a possession limit adjustment or fishery closure. The
addition of paragraph Sec. 648.14(r)(1)(iv)(F) clarifies that is it
unlawful for any person to purchase, receive, possess, have custody of,
sell, barter, trade or transfer more than 2,000 lb (907.2 kg) or 40,000
lb (18,143.7 kg) of herring, or attempt to do any of these things, from
a vessel if the herring is from a management area subject to a herring
possession limit pursuant to Sec. 648.201(a). The revisions at Sec.
648.14(r)(1)(vii)(A) clarify that vessels may not transit or be in a
management area subject to a possession limit adjustment or fishery
closure with more than the applicable herring possession limit, unless
such herring were caught in an area not subject to the possession
limit, all fishing gear is stowed and not available for immediate use,
and the vessel is issued the appropriate herring permit. The revision
at Sec. 648.201(a)(1)(i) changes the paragraph heading from
``Management area closure'' to ``Possession limit adjustments.'' The
revisions at Sec. 648.201(a)(1)(i)(A), (a)(2)(i)(B)(1),
(a)(1)(i)(B)(2), (a)(1)(ii), (a)(2), and (a)(4)(ii) update possession
limit adjustment language to be consistent with Sec. 648.201(a)(1)(i),
and clarify that vessels may not fish for, possess, transfer, receive,
land, or sell more than the applicable possession limits described in
those paragraphs, or attempt to do any of these things. The revisions
at Sec. 648.201(a)(1)(i)(B)(1) clarify that, based on catch
projections, NMFS may implement a 2,000-lb (907.2-kg) herring
possession limit (Phase 2) without first implementing a 40,000-lb
(18,143.7-kg) possession limit (Phase 1) in Areas 2 or 3 in order to
avoid impracticable transitions from Phase 1 to Phase 2 thresholds,
avoid overages, or reduce the risk of exceeding the ABC. The revisions
at Sec. 648.201(b) and (c) correct typos by changing ``less than'' to
``greater than.'' The revisions at Sec. 648.201(g)(1) update the
language used in the carryover example to clarify the timing of when
carryover is applied and how it is calculated. The final revision
removes paragraph Sec. 648.201(g)(2) because the carryover provisions
contained within only applied to fishing years 2021 and 2022 and are
therefore no longer necessary.
Proposed Rule Comments and Responses
We received two comment letters on the Framework 9 proposed rule
during the public comment period. One joint comment letter was
submitted on behalf of Conservation Law Foundation, Blue Planet
Strategies, Natural Resources Defense Council, The Pew Charitable
Trust, Whale and Dolphin Conservation, Wild Oceans, and interested
stakeholders. The other comment letter was submitted by a member of the
public. Consolidated responses are provided to similar comments on the
proposed measures.
Herring Rebuilding Plan
Comment 1: Environmental advocacy groups commented in support of
the proposed herring rebuilding plan. In particular, they supported the
proposed rebuilding plan because compared to the other rebuilding
alternatives analyzed in Framework 9, the proposed rebuilding plan
would rebuild the stock in as short a time as possible, consistent with
Magnuson-Stevens Act requirements and relevant National Standard 1
guidelines. They supported the proposed rebuilding plan's use of the
existing ABC control rule that was implemented through Amendment 8,
which accounts for herring's role as forage in the ecosystem. They
supported that compared to the other rebuilding alternatives, the
proposed rebuilding plan prioritizes the benefits of rebuilding the
herring stock as quickly as possible over short-term economic
interests. They stated that the proposed rebuilding plan favors the
needs of fishing communities because these communities will benefit
from a rebuilt herring population. They noted that these benefits
extend beyond the herring fishing community to other fishing
communities (e.g., commercial tuna fishery, lobster fishery) and
industries (e.g., ecotourism) that rely on herring. They also supported
the proposed rebuilding plan because it had a greater chance of
rebuilding in as short a time as possible with a lower chance of a
fishery closure.
Response 1: We agree and have approved the herring rebuilding plan
for the reasons discussed in the proposed rule and the preamble to this
rule.
Comment 2: The member of the public commented that responsible
management would have prevented the need for a rebuilding plan.
Response 2: We disagree. The best scientific information available
on the status and biology of the stock from the 2020 Management Track
Assessment show that herring spawning stock biomass (SSB) declined
during 2014-2019, with 2019 SSB estimated to be the lowest value since
the late 1980s. Data also indicate that herring recruitment has been
declining since 2013, hitting a historically-low level in 2019.
However, data show that fishing mortality on fully recruited fish by
the U.S. mobile fleet has declined since 2010, with 2019 fishing
mortality estimated to be the lowest value since the early 1990s. While
there are several sources of uncertainty in the stock assessment, the
assessment concluded that persistent low recruitment is the primary
factor driving the status of the herring stock, and that regulations
reducing U.S. herring catch have prevented overfishing from occurring.
Comment 3: The member of the public commented that herring has been
overfished for decades, and that MSY has long been exceeded.
Response 3: We disagree. A 2018 benchmark assessment found that the
herring stock was not overfished but was approaching an overfished
condition, and that overfishing was not occurring. The herring stock
was not formally determined to be overfished until 2020, based on the
results of the 2020 herring management track assessment. Additionally,
catch data indicate that during 2008-2020, the herring ACL was not
exceeded. Therefore, the fishery has not been exceeding MSY.
Comment 4: The member of the public commented that herring numbers
have declined to the point where recruitment is too low to support
annual harvest of the resource. They commented that there is no
acceptable catch limit for a severely depleted stock, and that the
importance of herring to the ecosystem merits a total ban on fishing.
They commented that decisions allowing continued harvest of the
resource do not constitute rebuilding.
Response: Herring is an important forage species in the Northeast
U.S. shelf ecosystem for a wide variety of fish, marine mammals, and
birds. However, we disagree that fishing for herring should be
prohibited at this time. The current conditions do not
[[Page 42965]]
warrant zero fishing mortality under the ABC control rule.
Consequently, implementing a ban on herring fishing under current
conditions would prevent the fishery from achieving optimum yield on a
continuing basis, which is inconsistent with National Standard 1 of the
Magnuson-Stevens Act. Additionally, prohibiting herring fishing could
result in a shortage of bait for other fisheries (e.g., lobster,
bluefin tuna), or could limit fishermen's ability to participate in
other fisheries that overlap with herring (e.g., squid, Atlantic
mackerel). Therefore, the negative impacts of prohibiting herring
fishing could extend beyond the herring fishery itself and into other
overlapping fisheries.
This action establishes a rebuilding plan for herring that
continues the use of the ABC control rule to set fishery
specifications. The ABC control rule was developed using a management
strategy evaluation (MSE) that accounted for herring's role as forage
when evaluating ABC control rule options. The model used for herring
included scenarios where herring productivity was high, as well as low,
to explicitly enable the Council to evaluate the impact of ABC control
rules on real-world specifications given fluctuations in herring
biomass.
The ABC control rule explicitly accounts for herring as forage in
the ecosystem by reserving a portion of the catch for predators,
limiting F to 80 percent of F<INF>MSY</INF> when biomass is high and
setting it at zero when biomass is low. The ABC control rule was
designed to balance the goals and objectives of the Herring FMP,
including managing the fishery at long-term sustainable levels, taking
forage for predators into account to support the ocean ecosystem, and
providing a biologically sustainable harvest as a source of revenue for
fishing communities and bait for the lobster fishery.
Comment 5: The member of the public commented that the assumption
that future recruitment will resemble long-term average recruitment is
highly doubtful. They commented that it is unlikely that current stock
can support future generations of herring long-term, and that continued
removal of these fish will contribute to continued low recruitment.
Response 5: We agree that current recruitment may not resemble
long-term average recruitment. During the development of Framework 9,
sensitivity analyses were completed in order to evaluate the risk
associated with different recruitment assumptions. SSB projections were
generated assuming (1) long-term average recruitment, consistent with
the 2020 stock assessment, and (2) autocorrelated recruitment. Under
the long-term average recruitment assumption, future recruitment is
predicted to be equal to median recruitment during 1965-2017. Under the
autocorrelated recruitment assumption, future recruitment is predicted
to be similar to the previous year plus some random variation. The
results of these sensitivity analyses showed that assuming
autocorrelated recruitment results in recruitment values that are more
similar to recent recruitment, and that are lower than the values that
result when assuming long-term average recruitment. Assuming long-term
average recruitment, the stock is projected to rebuild in 5 years (in
fishing year 2026). Assuming autocorrelated recruitment, the stock is
projected to rebuild in 9 years (in fishing year 2030). The next
herring management track assessment is scheduled to be completed in
June 2022. This assessment will provide NMFS and the Council with
additional data on recent herring recruitment levels, and will provide
the Council with an opportunity to evaluate rebuilding progress. Once
the herring rebuilding plan is implemented, NMFS will review and
evaluate the stock's rebuilding progress every 2 years, consistent with
Magnuson-Stevens Act requirements.
Comment 6: The member of the public commented that herring is a
keystone species, and that the cost to the ecosystem of the removal of
this species is not being accounted for in impact evaluations or
management decisions. They commented that herring is more important to
the ecosystem than it is to generating fishery profits.
Response 6: We agree that herring is an important component of the
Northeast U.S. shelf ecosystem. However, we disagree that management
decisions do not take herring's role in the ecosystem into account. As
previously mentioned, the ABC control rule is used to set fishery
specifications to prevent overfishing and explicitly account for
herring as forage in the ecosystem by reserving a portion of the catch
for predators.
National Standard 8 of the Magnuson-Stevens Act requires us to ``.
. . take into account the importance of fishery resources to fishing
communities by utilizing economic and social data that meet the
requirement of paragraph (2) [i.e., National Standard 2], in order to
(a) provide for the sustained participation of such communities, and
(b) to the extent practicable, minimize adverse economic impacts on
such communities'' consistent with conservation requirements. Herring
is an important source of revenue for some Northeast fishing vessels.
Data show that 51 vessels landed a total of 9,588 mt of herring, valued
at $6.7 million, during fishing year 2020. The majority (87 percent) of
herring landings were attributed to eight ports designated as ``primary
ports'' for herring due to their substantial level of engagement with
the fishery. Prohibiting herring fishing would lead to negative
economic impacts to the vessels and communities that rely on revenue
from this species. Additionally, prohibiting herring fishing would
prevent the fishery from achieving optimum yield on a continuing basis,
which is inconsistent with National Standard 1 of the Magnuson-Stevens
Act.
Further, as noted above, herring is an important source of bait for
the lobster and bluefin tuna fisheries, and vessels that participate in
the herring fishery often also participate in other co-occurring
fisheries (e.g., mackerel, squid). Prohibiting herring fishing could
result in a shortage of bait, or could limit fishermen's ability to
access to co-occurring fisheries using gear that could catch herring. A
prohibition on herring fishing under current conditions would
unnecessarily constrain participation in these other fisheries,
impacting their ability to achieve optimum yield and resulting in
negative economic impacts to the vessels and communities that rely on
those resources. Therefore, the impacts of prohibiting herring fishing
could extend far beyond the herring fishery to other overlapping
fishing communities as well.
Changes From the Proposed Rule
This final rule makes revisions to the regulations at Sec.
648.201(a)(1)(i)(B)(1) and (2) that were not included in the proposed
rule. The revisions clarify regulations that were discussed and
implemented in the Framework Adjustment 8 interim final rule. The
revisions are consistent with the discussion in the Framework 8 rules
and are made under our authority under section 305(d) of the Magnuson-
Stevens Act to promulgate regulations necessary to ensure that
amendments to an FMP are carried out in accordance with the FMP and the
Magnuson-Stevens Act. These revisions expressly state that we may
implement Phase 2 of the possession limit adjustment process (2,000-lb
(907.2-kg) possession limit) in Area 2 or 3 before implementing Phase 1
(40,000-lb (18,143.7-kg) possession limit) in order to avoid overages
and reduce the risk of catch exceeding the ABC. In years when herring
sub-ACLs are low, the high volume nature of the fishery and the limited
amount of time
[[Page 42966]]
between the fishery catching 90 percent of the Area 2 or 3 sub-ACL (the
trigger for implementing Phase 1) and 98 percent of the sub-ACL (the
trigger for implementing Phase 2) can make it impracticable and risky
to implement the 40,000-lb (18,143.7-kg) limit before implementing the
2,000-lb (907.2-kg) limit in these areas. The final rule implementing
Framework 8 explained that in certain instances NMFS may need to bypass
Phase 1 and immediately implement Phase 2 based on the most recent
catch information, and we are revising the regulations in this final
rule to expressly note this authority in the regulations and the
reasons for exercising it. We received no comments on these provisions
during the Framework 8 rulemaking, and the regulated community already
understands that Phase 1 may be bypassed to immediately implement Phase
2. In fact, since the two-step possession limit adjustment process was
implemented in 2021, NMFS twice has bypassed the Phase 1 40,000-lb
possession limit and instead immediately implemented the 2,000-lb
possession limit in Area 3 (in March 2021 and again in February 2022).
Classification
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator is promulgating final regulations that have
been determined to be consistent with the Herring FMP, provisions of
the Magnuson-Stevens Act, and other applicable law.
The Office of Management and Budget has determined that this final
rule is not significant pursuant to Executive Order (E.O.) 12866.
This final rule does not contain policies with federalism or
takings implications as those terms are defined in E.O. 13132 and E.O.
12630, respectively.
This final rule does not contain any new information collection
requirements, including reporting or recordkeeping requirements, for
the purposes of the Paperwork Reduction Act.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a final regulatory
flexibility analysis was not required and none was prepared.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: July 13, 2022.
Kimberly Damon-Randall,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is 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. 648.13, revise paragraphs (f)(1)(ii)(B), (f)(2)(ii),
(f)(5), and (f)(6) to read as follows:
Sec. 648.13 Transfers at sea.
* * * * *
(f) * * *
(1) * * *
(ii) * * *
(B) Provided that the transfer of herring at sea to another vessel
for personal use as bait does not exceed the possession limit specified
for the transferring vessel in Sec. 648.204, except that no more than
the applicable 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) herring
possession limit may be caught or transferred per trip or per calendar
day if the vessel is in, or the fish were harvested from, a management
area subject to a possession limit adjustment or fishery closure as
specified in Sec. 648.201.
(2) * * *
(ii) A vessel issued an Atlantic herring permit may transfer
herring at sea to an Atlantic herring carrier up to the applicable
possession limits specified in Sec. 648.204, provided it is issued a
letter of authorization for the transfer of herring and that no more
than the applicable 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg)
herring possession limit may be caught or transferred at sea per trip
or per calendar day if the vessel is in, or the fish were harvested
from, an area subject to a possession limit adjustment or fishery
closure as specified in Sec. 648.201.
* * * * *
(5) Transfer to at-sea processors. A vessel issued an Atlantic
herring permit may transfer herring to a vessel issued an at-sea
processing permit specified in Sec. 648.6(a)(2)(ii), up to the
applicable possession limit specified in Sec. 648.204, except that no
more than the applicable 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg)
herring possession limit may be caught or transferred at sea per trip
or per calendar day if the vessel is in, or the fish were harvested
from, a management area subject to a possession limit adjustment or
fishery closure as specified in Sec. 648.201.
(6) Transfers between herring vessels. A vessel issued a valid
Atlantic herring permit may transfer and receive herring at sea,
provided such vessel has been issued a letter of authorization from the
Regional Administrator to transfer or receive herring at sea. Such
vessel may not transfer, receive, or possess at sea, or land per trip
herring in excess of the applicable possession limits specified in
Sec. 648.204, except that no more than 2,000 lb (907.2 kg) or 40,000
lb (18,143.7 kg) of herring may be caught, transferred, received, or
possessed at sea, or landed per trip or per calendar day if the vessel
is in, or the fish were harvested from, a management area subject to a
possession limit adjustment or fishery closure as specified in Sec.
648.201.
* * * * *
0
3. In Sec. 648.14:
0
a. Revise paragraphs (r)(1)(ii)(B);
0
b. Add paragraph (r)(1)(iv)(F); and
0
c. Revise paragraph (r)(1)(vii)(A).
The revisions read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(r) * * *
(1) * * *
(ii) * * *
(B) Attempt or do any of the following: Fish for, possess,
transfer, receive, land, or sell, more than the possession limits
specified at Sec. 648.201(a) from a management area subject to a
possession limit adjustment or fishery closure, or from a river herring
and shad catch cap closure area that has been closed to specified gear
pursuant to Sec. 648.201(a)(4)(ii), if the vessel has been issued and
holds a valid herring permit.
* * * * *
(iv) * * *
(F) Purchase, receive, possess, have custody or control of, sell,
barter, trade or transfer, or attempt to purchase, receive, possess,
have custody or control of, sell, barter, trade or transfer, more than
the applicable 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg)
possession limit of herring from a vessel if the herring is from a
management area subject to a possession limit for Atlantic herring
pursuant to Sec. 648.201(a).
* * * * *
(vii) * * *
(A) Transit or be in an area subject to a possession limit
adjustment or fishery
[[Page 42967]]
closure pursuant to Sec. 648.201(a) with more than the applicable
2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) herring possession
limit, unless such herring were caught in an area not subject to the
2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) limit specified in Sec.
648.201(a), all fishing gear is stowed and not available for immediate
use as defined in Sec. 648.2, and the vessel is issued a permit
appropriate to the amount of herring on board and the area where the
herring was harvested.
* * * * *
0
4. In Sec. 648.201:
0
a. Revise paragraphs (a)(1)(i) introductory text, (a)(1)(i)(A),
(a)(1)(i)(B)(1) and (2), (a)(1)(ii), (a)(2), (a)(3), (a)(4)(ii), (b),
(c), (g)(1); and
0
b. Remove and reserve paragraph (g)(2).
The revisions read as follows:
Sec. 648.201 AMs and harvest controls.
* * * * *
(a) * * *
(1) * * *
(i) Possession Limit Adjustments--(A) Areas 1A and 1B Possession
Limit Adjustment. If NMFS projects that catch from Area 1A or 1B will
reach 92 percent of the annual sub-ACL allocated to Area 1A or Area 1B,
before the end of the fishing year, or 92 percent of the Area 1A sub-
ACL allocated to the seasonal period as set forth in paragraph (d) of
this section, beginning the date the catch is projected to reach 92
percent of the sub-ACL, vessels may not attempt or do any of the
following: Fish for, possess, transfer, receive, land, or sell more
than 2,000 lb (907.2 kg) of Atlantic herring per trip in or from the
applicable area, and from landing herring more than once per calendar
day, except as provided in paragraphs (b) and (c) of this section. NMFS
shall implement these restrictions in accordance with the APA.
(B) * * *
(1) Possession Limit Adjustment--Phase 1. If NMFS projects that
catch from Area 2 or Area 3 will reach 90 percent of the annual sub-ACL
allocated to Area 2 or Area 3 before the end of the fishing year,
beginning the date the catch is projected to reach 90 percent of the
applicable sub-ACL, vessels may not attempt or do any of the following:
Fish for, possess, transfer, receive, land, or sell more than 40,000 lb
(18,143.7 kg) of Atlantic herring per trip in or from the applicable
area, and from landing herring more than once per calendar day, except
as provided in paragraphs (b) and (c) of this section. Based on catch
projections in relation to the amount of catch available between the
applicable 90 percent (Phase 1) and 98 percent (Phase 2) sub-ACL
adjustment thresholds, NMFS may bypass implementing this Phase 1,
40,000-lb (18,143.7-kg) possession limit and instead implement the
Phase 2, 2,000-lb (907.2-kg) possession limit described at Sec.
648.201(a)(1)(i)(B)(2) as warranted to avoid impracticable transitions
from Phase 1 to Phase 2 thresholds, avoid overages, or reduce the risk
of exceeding the ABC. NMFS shall implement these restrictions in
accordance with the APA.
(2) Possession Limit Adjustment--Phase 2. If NMFS projects that
catch will reach 98 percent of the annual sub-ACL allocated to Area 2
or Area 3 before the end of the fishing year, beginning the date the
catch is projected to reach 98 percent of the sub-ACL, vessels may not
attempt or do any of the following: Fish for, possess, transfer,
receive, land, or sell more than 2,000 lb (907.2 kg) of Atlantic
herring per trip in the applicable area, and from landing herring more
than once per calendar day, except as provided in paragraphs (b) and
(c) of this section. Based on catch projections, NMFS may implement
this Phase 2, 2,000-lb (907.2-kg) possession limit without first
implementing the Phase 1, 40,000-lb (18,143.7-kg) possession limit
described at Sec. 648.201(a)(1)(i)(B)(1) as warranted to avoid
impracticable transitions from Phase 1 to Phase 2 thresholds, avoid
overages, or reduce the risk of exceeding the ABC. NMFS shall implement
these restrictions in accordance with the APA.
(ii) Herring fishery closure. If NMFS projects that catch will
reach 95 percent of the ACL before the end of the fishing year,
beginning the date the catch is projected to reach 95 percent of the
ACL, vessels may not attempt or do any of the following: Fish for,
possess, transfer, receive, land, or sell more than 2,000 lb (907.2 kg)
of Atlantic herring per trip in all herring management areas, and from
landing herring more than once per calendar day, except as provided in
paragraphs (b) and (c) of this section. NMFS shall implement these
restrictions in accordance with the APA.
(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,
transfer, receive, land, or sell 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.
(3) ACL and sub-ACL overage deductions. (i) If NMFS determines that
total catch exceeded an Atlantic herring sub-ACL by 10 percent or less
and the ACL was not exceeded in a given fishing year, then NMFS shall
not deduct any amount of the overage from the applicable sub-ACL or ACL
in the fishing year following total catch determination.
(ii) If NMFS determines that total catch exceeded an Atlantic
herring sub-ACL by greater than 10 percent and the ACL was not exceeded
in a given fishing year, then NMFS shall subtract the amount of the
overage above 10 percent from the ACL and applicable sub-ACL in the
fishing year following total catch determination. For example, if catch
exceeded the Area 1A sub-ACL by 15 percent in Year 1 and the ACL was
not exceeded, the amount equal to the 5 percent overage would be
deducted from the ACL and Area 1A sub-ACL in Year 3.
(iii) If NMFS determines that total catch exceeded an Atlantic
herring sub-ACL by any amount and the ACL was also exceeded in a given
fishing year, then NMFS shall subtract the full amount of the sub-ACL
overage from the applicable sub-ACL, and the full amount of the ACL
overage from the ACL, in the fishing year following total catch
determination. For example, if catch exceeded the Area 1A sub-ACL by 15
percent and the ACL by 5 percent in Year 1, the amount equal to the 15-
percent overage would be deducted from the Area 1A sub-ACL and the
amount equal to the 5-percent overage would be deducted from the ACL in
Year 3.
(iv) If NMFS determines that total catch exceeded the Atlantic
herring ACL and no herring sub-ACLs were exceeded in a given fishing
year, then NMFS shall
[[Page 42968]]
subtract the full amount of the overage from the ACL in the fishing
year following total catch determination. For example, if catch
exceeded the herring ACL by 2 percent in Year 1, the amount equal to
the 2-percent overage would be deducted from the ACL in Year 3, and no
sub-ACLs would be reduced.
(v) NMFS shall make overage determinations and implement any
changes to ACLs or sub-ACLs, through notification in the Federal
Register, and if possible, prior to the start of the fishing year
during which the reduction would occur.
(4) * * *
(ii) Beginning on the date that NMFS projects that river herring
and shad catch will reach 95 percent of a catch cap for specified gear
applicable to an area specified in Sec. 648.200(f)(7) for the
remainder of the fishing year, vessels may not attempt or do any of the
following: Fish for, possess, transfer, receive, land, or sell more
than 2,000 lb (907.2 kg) of Atlantic herring per trip using the
applicable gear in the applicable catch cap closure area, specified in
Sec. 648.200(f)(8), and from landing herring more than once per
calendar day, except as provided in paragraphs (b) and (c) of this
section. NMFS shall implement these restrictions in accordance with the
APA.
(b) A vessel may transit an area that is limited to the 2,000-lb
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in
paragraph (a) of this section with greater than 2,000 lb (907.2 kg) or
greater than 40,000 lb (18,143.7 kg) of herring on board, provided such
herring were caught in an area or areas not subject to the 2,000-lb
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in
paragraph (a) of this section, and that all fishing gear is stowed and
not available for immediate use as defined in Sec. 648.2, and provided
the vessel is issued a vessel permit appropriate to the amount of
herring on board and the area where the herring was harvested.
(c) A vessel may land an area that is limited to the 2,000-lb
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in
paragraph (a) of this section with greater than 2,000 lb (907.2 kg) or
greater than 40,000 lb (18,143.7 kg) of herring on board, provided such
herring were caught in an area or areas not subject to the 2,000-lb
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in
paragraph (a) of this section, and that all fishing gear is stowed and
not available for immediate use as defined in Sec. 648.2, and provided
the vessel is issued a vessel permit appropriate to the amount of
herring on board and the area where the herring was harvested.
* * * * *
(g) * * *
(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 Year 1, not the sub-ACL for Year 1 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 100 mt of herring is added as carryover
from Year 1 to a 5,000 mt sub-ACL in Year 3, catch in that management
area would be tracked against a total sub-ACL of 5,100 mt. NMFS shall
add sub-ACL carryover only if catch does not exceed the Year 1 ACL,
specified consistent with Sec. 648.200(b)(3). The ACL, consistent with
Sec. 648.200(b)(3), shall not be increased by carryover specified in
this paragraph (g).
(2) [Reserved]
* * * * *
[FR Doc. 2022-15351 Filed 7-18-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on July 19, 2022.
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