[Federal Register Volume 78, Number 106 (Monday, June 3, 2013)]
[Proposed Rules]
[Pages 33020-33040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13172]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100203070-3463-01]
RIN 0648-AY47


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Amendment 5

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Amendment 5 
to the Atlantic Herring Fishery Management Plan (FMP). Amendment 5 was 
developed by the New England Fishery Management Council (Council) to: 
Improve the collection of real-time, accurate catch information; 
enhance the monitoring and sampling of catch at-sea; and address 
bycatch issues through responsible management. The proposed Amendment 5 
management measures include: Revising fishery management program 
provisions (permitting provisions, dealer and vessel reporting 
requirements, measures to address herring carrier vessels, regulatory 
definitions, requirements for vessel monitoring systems, and trip 
notifications); increasing observer coverage and requiring industry to 
contribute funds towards the cost of increased observer coverage; 
expanding vessel requirements to maximize observer's ability to sample 
catch at-sea; minimizing the discarding of unsampled catch; addressing 
the incidental catch and bycatch of river herring; and revising the 
criteria for midwater trawl vessels' access to groundfish closed areas.

DATES: Public comments must be received no later than July 18, 2013.

ADDRESSES: Copies of supporting documents used by the Council, 
including the Environmental Impact Statement (EIS) and Regulatory 
Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are 
available from: Thomas A. Nies, Executive Director, New England Fishery 
Management Council, 50 Water Street, Newburyport, MA 01950. The EIS/
RIR/IRFA is also accessible via the internet at http://www.nero.nmfs.gov.
    You may submit comments on this document, identified by NOAA-NMFS-
2013-0066, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0066, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: John K. Bullard, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope, ``Comments on the Herring 
Amendment 5 Proposed Rule.''
     Fax: (978) 281-9135, Attn: Carrie Nordeen.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF formats only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS, Northeast Regional Office and 
by email to OIRA [email protected], or fax to 202-395-7285.

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

SUPPLEMENTARY INFORMATION:

Background

    On May 8, 2008 (73 FR 26082), the Council published a notice of 
intent (NOI) to prepare an EIS for Amendment 4 to the Atlantic Herring 
FMP to consider measures to: Improve long-term monitoring of catch 
(landings and bycatch) in the herring fishery, implement annual catch 
limits (ACLs) and accountability measures (AMs) consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA), and 
develop a sector allocation process or other limited access privilege 
program for the herring

[[Page 33021]]

fishery. The Council subsequently conducted scoping meetings during May 
and June of 2008 to discuss and take comments on alternatives to these 
measures. After considering the complexity of the issues under 
consideration in Amendment 4, the Council voted on June 23, 2009, to 
split the action into two amendments to ensure the MSA requirements for 
complying with provisions for ACLs and AMs would be met by 2011. The 
ACL and AM components moved forward in Amendment 4, all other measures 
formerly considered in Amendment 4 were to be considered in Amendment 
5. A supplementary NOI was published on December 28, 2009, (74 FR 
68577) announcing the split between the amendments, and that impacts 
associated with alternatives considered in Amendment 5 would be 
analyzed in an EIS. At that time, measures considered under Amendment 5 
included: A catch-monitoring program; measures to address river herring 
bycatch; midwater trawl access to Northeast multispecies (groundfish) 
closed areas; and measures to address interactions with the Atlantic 
mackerel (mackerel) fishery.
    Following further development of Amendment 5, the Council conducted 
MSA public hearings in March 2012, National Environmental Policy Act 
(NEPA) public hearings at the beginning of June 2012, and, following 
the public comment period on the draft EIS that ended on June 4, 2012, 
the Council adopted Amendment 5 on June 20, 2012. The Council submitted 
Amendment 5 to NOAA Fisheries Service (NMFS) for review on September 
10, 2012. Following a series of revisions, the Council submitted a 
revised version of Amendment 5 to NMFS on March 25, 2013. This action 
proposes management measures that were recommended by the Council in 
Amendment 5. If implemented, these management measures would:
     Modify the herring transfer at-sea and offload definitions 
to better document the transfer of fish;
     Expand possession limit restrictions to all vessels 
working cooperatively, consistent with pair trawl requirements;
     Eliminate the vessel monitoring system (VMS) power-down 
provision for limited access herring vessels, consistent with VMS 
provisions for other fisheries;
     Establish an ``At-Sea Herring Dealer'' permit to better 
document the at-sea transfer and sale of herring;
     Establish an ``Areas 2/3 Open Access Permit'' to reduce 
the potential for the regulatory discarding of herring in the mackerel 
fishery;
     Expand dealer reporting requirements;
     Allow vessels to enroll as herring carriers with either a 
VMS declaration or letter of authorization to increase operational 
flexibility;
     Expand pre-trip and pre-landing notification requirements, 
as well as adding a VMS gear declaration, to all limited access herring 
vessels and vessels issued an Areas 2/3 Open Access Permit to help 
facilitate monitoring;
     Reduce the advance notice requirement for the observer 
pre-trip notification from 72 hours to 48 hours;
     Expand vessel requirements related to at-sea observer 
sampling to help ensure safe sampling and improve data quality;
     Establish measures to minimize the discarding of catch 
before it has been made available to observers for sampling;
     Increase observer coverage on Category A and B vessels and 
require industry contributions of a target maximum of $325 per day;
     Establish a framework provision for a river herring catch 
cap, such that a river herring catch cap may be implemented in a future 
framework to directly control river herring fishing mortality;
     Allow the existing river herring bycatch avoidance program 
to investigate providing real-time, cost-effective information on river 
herring distribution and fishery encounters in River Herring 
Monitoring/Avoidance Areas; and
     Expand at-sea sampling of midwater trawl vessels fishing 
in groundfish closed areas.
    A Notice of Availability (NOA) for Amendment 5, as submitted by the 
Council for review by the Secretary of Commerce, was published in the 
Federal Register on April 22, 2013 (78 FR 23733). The comment period on 
Amendment 5 NOA ends on June 21, 2013. Comments submitted on the NOA 
and/or this proposed rule prior to June 21, 2013, will be considered in 
NMFS's decision to approve, partially approve, or disapprove Amendment 
5. NMFS will consider comments received by the end of the comment 
period for this proposed rule (July 18, 2013) in its decision to 
implement measures proposed by the Council.

Proposed Measures

    The proposed regulations are based on the measures in Amendment 5. 
The Council has spent several years developing this amendment, and it 
contains many measures that would improve herring management and that 
can be administered by NMFS. NMFS supports improvements to fishery 
dependent data collections, either through increasing reporting 
requirements or expanding the at-sea monitoring of the herring fishery. 
NMFS also shares the Council's concern for reducing bycatch and 
unnecessary discarding. However, a few measures in Amendment 5 may lack 
adequate rationale or development by the Council, and NMFS identified 
potential utility and legal concerns with these measures. These 
measures include: A dealer reporting requirement; a cap that, if 
achieved, would require vessels discarding catch before it had been 
sampled by observers to return to port; and a requirement for 100-
percent observer coverage on Category A (All Areas Limited Access 
Herring Permit) and B (Areas 2/3 Limited Access Herring Permit) 
vessels, coupled with an industry contribution of a target maximum of 
$325 per day toward observer costs. NMFS expressed these potential 
concerns with these measures throughout the development of this 
amendment, but these measures have strong support from some 
stakeholders. This rulemaking describes potential concerns about these 
measures' consistency with the MSA and other applicable law. Following 
public comment, NMFS will determine if these measures can be approved 
or if they must be disapproved. NMFS seeks public comments on all 
proposed measures in Amendment 5, and in particular, NMFS seeks public 
comment on the proposed measures and whether those measures should be 
approved or disapproved.

1. Adjustments to the Fishery Management Program

    Amendment 5 would revise several existing fishery management 
provisions, such as regulatory definitions, reporting requirements, and 
VMS requirements, and establish new provisions, such as additional 
herring permits and increased operational flexibility for herring 
carriers, to better administer the herring fishery.
Definitions
    Amendment 5 would revise the regulatory definitions of transfer at-
sea and offload to clarify these activities for the herring fishery. 
Amendment 5 would define a herring transfer at-sea as a transfer of 
fish from one herring vessel (including fish from the hold, deck, 
codend, or purse seine) to another vessel, with the exception of fish 
moved between vessels engaged in pair trawling. Amendment 5 would also 
define a herring offload as removing fish

[[Page 33022]]

from a herring vessel to be sold to a dealer. Both transfers at-sea and 
offloading are frequent activities in the herring fishery, and the 
differences between these activities are not always well understood. 
These definition revisions attempt to more clearly differentiate 
between activities that trigger reporting requirements. By clarifying 
these activities for the herring fishery, fishery participants are more 
likely to report these activities consistently, thereby improving 
reporting compliance, helping ensure data accuracy and completeness, 
and lessening the likelihood of double counting herring catch.
Herring Carriers
    Amendment 5 would revise operating provisions for herring carrier 
vessels by establishing an At-Sea Herring Dealer permit for herring 
carriers that sell fish, allowing vessels to declare herring carrier 
trips via VMS, and exempting herring carriers from vessel trip report 
(VTR) requirements. Currently, herring carriers are vessels that may 
receive and transport herring caught by another fishing vessel, 
provided the herring carrier has been issued a herring permit, does not 
have any gear on board capable of catching or processing herring, and 
has been issued a letter of authorization (LOA) from the NMFS Regional 
Administrator (RA). The herring carrier LOA exempts the herring carrier 
from possession limits and catch reporting requirements associated with 
the vessel's herring permit. To allow time for the processing, 
issuance, and, if necessary, cancelation of the LOAs, the herring 
carrier LOAs have a minimum 7-day enrollment period. During the LOA 
enrollment period, vessels may only act as herring carriers and they 
may not fish for any species or transport species other than herring.
    Amendment 5 would allow vessels to choose between enrolling as a 
herring carrier with an LOA or declaring a herring carrier trip via 
VMS. If a vessel chooses to declare a herring carrier trip via VMS, it 
would be allowed to receive and transport herring caught by another 
fishing vessel provided the herring carrier has been issued a herring 
permit, does not have any gear on board capable of catching or 
processing fish, and only transports herring. By declaring a herring 
carrier trip via VMS, a vessel would be exempt from the catch reporting 
(i.e., daily VMS reporting) associated with its herring permit and not 
bound by the 7-day enrollment period of the LOA. A vessel declaring a 
herring carrier trip via VMS may only act as a herring carrier and may 
not fish for any species or transport species other than herring. This 
measure would increase operational flexibility by allowing vessels to 
schedule herring carrier trips on a trip-by-trip basis. Vessels that do 
not possess a VMS or choose not to declare a herring trip via VMS may 
still act as carriers by obtaining a herring carrier LOA from the NMFS 
RA and operating in accordance with the LOA requirements.
    Herring carriers typically receive herring from harvesting vessels 
and transport those herring to Federal dealers. The harvesting vessel 
reports those herring as catch, and dealers report those herring as a 
purchase. NMFS verifies the amount of herring caught by comparing the 
amount reported by the harvesting vessel against the amount reported by 
the dealer. If the herring transported by a herring carrier is not 
purchased by a Federal dealer, then NMFS does not have any dealer 
reports to compare to the vessel reports. Amendment 5 would establish 
an At-Sea Atlantic Herring Dealer Permit that would be required for 
herring carriers that sell herring, rather than deliver those fish on 
behalf of a harvesting vessel to a dealer for purchase. This permit 
would require compliance with Federal dealer reporting requirements. 
Vessels that have both an At-Sea Atlantic Herring Dealer Permit and a 
Federal fishing permit would be required to fulfill the reporting 
requirements of both permits while in possession of both permits, as 
appropriate. NMFS expects the reporting requirements for the At-Sea 
Atlantic Herring Dealer Permit to minimize instances where catch is 
reported by harvesting vessels but then cannot be matched to dealer 
reports; thereby improving catch monitoring in the herring fishery.
    Amendment 5 would exempt herring carriers from the VTR requirements 
associated with their vessel permits. Vessels issued herring permits 
are required to submit weekly VTRs to NMFS. However, dealers have 
incorrectly attributed catch to herring carrier vessels, rather than 
correctly attributed catch to the appropriate harvesting vessel, by 
reporting the herring carrier's VTR serial number rather than the VTR 
serial number of the harvesting vessel. To help prevent catch being 
attributed to the wrong vessel and minimize data mismatches between 
vessel and dealer reports, Amendment 5 would exempt herring carriers 
from the VTR requirement associated with their herring permit. Dealers 
would still be responsible for correctly reporting the VTR serial 
number of the vessel that harvested the herring.
Open Access Herring Permits
    Amendment 5 would establish a new open access herring permit for 
vessels engaged in the mackerel fishery and would re-name the current 
open access herring permit. The existing open access herring permit 
(Category D) allows a vessel to possess up to 6,600 lb (3 mt) of 
herring per trip, limited to one landing per calendar day, in or from 
any of the herring management areas. All the provisions and 
requirements of the existing open access herring permit would remain 
the same, but the Category D permit would be renamed the All Areas Open 
Access Herring Permit, and this action would create a new open access 
permit for mackerel fishery participants fishing in herring management 
Areas 2 and 3.
    The new Areas 2/3 Open Access Herring Permit (Category E) would 
allow vessels to possess up to 20,000 lb (9 mt) of herring per trip, 
limited to one landing per calendar day, in or from herring management 
Areas 2 and 3. Vessels that have not been issued a limited access 
herring permit but have been issued a limited access mackerel permit 
would be eligible for the Areas 2/3 Open Access Herring Permit. Vessels 
may hold both open access herring permits at the same time.
    In its letter to NMFS deeming the proposed regulations for 
Amendment 5, the Council requested that NMFS clarify the reporting and 
monitoring requirements associated with the new Category E permit. 
Amendment 5 states that Category E permits would be subject to the same 
notification and reporting requirements as Category C (Incidental Catch 
Limited Access Herring Permit) vessels. Therefore, the proposed 
notification and reporting requirements associated with this new permit 
would be consistent with the requirements for Category C vessels, 
including the requirement to possess and maintain a VMS, VMS activity 
declaration requirements, and catch reporting requirements (i.e., 
submission of daily VMS catch reports and weekly VTRs).
    Amendment 5 does not state that Category E permits would be subject 
to the same catch monitoring requirements as Category C vessels, 
including the proposed vessel requirements to help improve at-sea 
sampling and measures to minimize the discarding of catch before it has 
been made available to observers for sampling. When describing or 
analyzing catch monitoring requirements, Amendment 5 does not describe 
extending catch monitoring requirements for Category C vessels to 
Category E vessels, nor does

[[Page 33023]]

it analyze the impacts of catch monitoring requirements on Category E 
vessels. Because the Category C catch monitoring requirements were not 
discussed or analyzed in relation to Category E vessels, this action 
does not propose extending those catch monitoring requirements to 
Category E vessels.
    There is significant overlap between the mackerel and herring 
fisheries. Mackerel and herring co-occur, particularly during January 
through April, which is a time that vessels often participate in both 
fisheries. Not all vessels participating in the mackerel fishery 
qualify for a limited access herring permit because they either did not 
have adequate herring landings or they are new participants in the 
mackerel fishery. Currently, vessels issued an open access herring 
permit and participating in the mackerel fishery are required to 
discard any herring in excess of the open access permit's 6,600-lb (3-
mt) possession limit. The creation of the new Areas 2/3 Open Access 
Herring Permit is intended to minimize the potential for regulatory 
discarding of herring by limited access mackerel vessels that did not 
qualify for a limited access herring permit, consistent with MSA 
National Standard 9's requirement to minimize bycatch to the extent 
practicable.
Trip Notification and VMS Requirements
    Amendment 5 would expand and modify trip notification and VMS 
requirements for vessels with herring permits to assist with observer 
deployment and provide enforcement with advance notice of trip 
information to facilitate enforcement monitoring of landings. 
Currently, vessels with Category A or B permits, as well as any vessels 
fishing with midwater trawl gear in Areas 1A, 1B, and/or 3, are 
required to contact NMFS at least 72 hr in advance of a fishing trip to 
request an observer. Amendment 5 would modify this pre-trip observer 
notification requirement, such that vessels with limited access herring 
permits, vessels with open access Category D permits fishing with 
midwater trawl gear in Areas 1A, 1B, and/or 3, vessels with open access 
Category E permits, and herring carrier vessels would be required to 
contact NMFS at least 48 hr in advance of a fishing trip to request an 
observer. This measure would assist NMFS's scheduling and deployment of 
observers across the herring fleet, with minimal additional burden on 
the industry, helping ensure that observer coverage targets for the 
herring fishery are met. NMFS intends for the change from a 72-hr 
notification requirement to a 48-hr notification requirement to allow 
vessels more flexibility in their trip planning and scheduling. The 
list of information that must be provided to NMFS as part of this pre-
trip observer notification is described in the proposed regulations. 
Vessels with herring permits currently contact NMFS via phone. If this 
measure is implemented, details of how vessels should contact NMFS will 
be provided in the small entity compliance guide. If a vessel is 
required to notify NMFS to request an observer before its fishing trip, 
but it does not notify NMFS before beginning the fishing trip, that 
vessel would be prohibited from possessing, harvesting, or landing 
herring on that trip. If a fishing trip is cancelled, a vessel 
representative must notify NMFS of the cancelled trip, even if the 
vessel is not selected to carry an observer. All waivers or selection 
notices for observer coverage will be issued by NMFS to the vessel via 
VMS so the vessel would have an on-board verification of either the 
observer selection or waiver. However, a vessel is still subject to the 
more restrictive 72-hr notification associated with the groundfish 
midwater trawl or purse seine gear exempted fisheries specified at 50 
CFR Sec.  648.80(d)-(e).
    Vessels with limited access herring permits are currently subject 
to a VMS activity declaration. Amendment 5 would expand that VMS 
activity declaration requirement and add a gear code declaration. 
Therefore, under Amendment 5, vessels with limited access herring 
permits, Category E permits, and vessels declaring herring carrier 
trips via VMS must notify NMFS via VMS of their intent to participate 
in the herring fishery prior to leaving port on each trip by entering 
the appropriate activity and gear codes in order to harvest, possess, 
or land herring on that trip.
    Currently, vessels with Category A or B permits, and vessels with a 
Category C permits fishing with midwater trawl gear in Areas 1A, 1B, 
and/or 3 are subject to a pre-landing VMS notification requirement. 
Amendment 5 would expand this pre-landing VMS notification requirement 
so that vessels with limited access herring permits, Category E 
permits, and vessels declaring herring carrier trips via VMS must 
notify NMFS Office of Law Enforcement via VMS of the time and place of 
offloading at least 6 hr prior to crossing the VMS demarcation line on 
their return trip to port, or if a vessel does not fish seaward of the 
VMS demarcation line, at least 6 hr prior to landing.
    Limited access herring vessels are currently able to turn off 
(i.e., power-down) their VMS when in port, if they do not hold other 
permits requiring continuous VMS reporting. Vessels authorized to turn 
off their VMS in port must submit a VMS activity declaration prior to 
leaving port. Amendment 5 would prohibit vessels with herring permits 
from turning off their VMS when in port, unless specifically authorized 
by NMFS. A vessel representative would request a letter of exemption 
(LOE) from NMFS to turn off its VMS if that vessel will be out of the 
water for more than 72 hr. Herring vessels would not be allowed to turn 
off their VMS until they have received an LOE from NMFS. Additionally, 
a vessel owner would be able to sign a herring vessel out of the VMS 
program for a minimum of 30 days by requesting and obtaining an LOE 
from NMFS. When VMS units are turned off, consistent with an LOE, the 
vessel would not be able to leave the dock until the VMS unit was 
turned back on. Amendment 5 would prohibit herring vessels from turning 
off VMS units in port to improve the enforcement of herring regulations 
and help make herring VMS regulations consistent with VMS regulations 
in other Northeast fisheries.
Possession Limits
    All herring vessels engaged in pair trawling must hold herring 
permits, and their harvest is limited by the most restrictive 
possession limit associated with those permits. Amendment 5 would 
expand this restriction to all vessels working cooperatively in the 
herring fishery, including purse seine vessels and vessels that 
transfer herring at-sea. Therefore, under Amendment 5, each vessel 
working cooperatively in the herring fishery, including vessels pair 
trawling, purse seining, and transferring herring at-sea, must be 
issued a herring permit and would be subject to the most restrictive 
possession limit associated with the permits issued to those vessels 
working cooperatively. This measure would establish consistent 
requirements for vessels working cooperatively in the herring fishery 
and may improve enforcement of herring possession limits for multi-
vessel operations.
Dealer Reporting Requirement
    During the development of Amendment 5, some stakeholders expressed 
concern that herring catch is not accounted for accurately and that 
there needs to be a standardized method to determine catch. In an 
effort to address that concern, Amendment 5 would require herring 
dealers to accurately weigh all fish and, if catch is

[[Page 33024]]

not sorted by species, dealers would be required to document for each 
transaction how they estimate relative species composition. During the 
development of Amendment 5, NMFS identified potential concerns with the 
utility of this measure.
    Dealers are currently required to accurately report the weight of 
fish, which is obtained by scale weights and/or volumetric estimates. 
Because this proposed measure does not specify how fish are to be 
weighed, this proposed measure may not change dealer behavior and, 
therefore, the requirement may not lead to any measureable change in 
the accuracy of catch weights reported by dealers. Further, this 
measure does not provide standards for estimating species composition. 
Without standards for estimating species composition or for measuring 
the accuracy of the estimation method, NMFS may be unable to evaluate 
the sufficiency of the methods used to estimate species composition. 
For these reasons, the requirement for dealers to document the methods 
used to estimate species composition may not improve the accuracy of 
dealer reporting. While the measure requiring dealers to document 
methods used to estimate species composition may not have direct 
utility in monitoring catch in the herring fishery, it may still inform 
NMFS's and the Council's understanding of the methods used by dealers 
to determine species weights. That information may aid in development 
of standardized methods for purposes of future rulemaking. Furthermore, 
full and accurate reporting is a permit requirement; failure to do so 
could render dealer permit renewals incomplete, precluding renewal of 
the dealer's permit. Therefore, there is incentive for dealers to make 
reasonable efforts to document how they estimate relative species 
composition, which may increase the likelihood that useful information 
will be obtained as a result of this requirement.
    In light of the forgoing, NMFS seeks public comment on the extent 
to which the proposed measure has practical utility, as required by the 
MSA and the Paperwork Reduction Act, that outweighs the additional 
reporting and administrative burden on the dealers. In particular, NMFS 
seeks public comment on whether and how the proposed measure helps 
prevent overfishing, promotes the long-term health and stability of the 
herring resource, monitors the fishery, facilitates inseason 
management, or judges performance of the management regime.

2. Adjustments to At-Sea Catch Monitoring

    One of the primary goals of Amendment 5 is to improve catch 
monitoring in the herring fishery. Amendment 5 would revise existing 
measures associated with at-sea monitoring, such as observer coverage 
levels and vessel requirements to assist observers sampling at-sea. 
Amendment 5 would also establish new provisions to monitor catch in the 
herring fishery, such as measures to minimize the discarding of catch 
before it has been sampled by an observer and industry funding to pay 
for increased observer coverage.
    Northeast fisheries regulations specify requirements for vessels 
carrying NMFS-approved observers, such as providing observers with food 
and accommodations equivalent to those made available to the crew, 
allowing observers to access the vessel's bridge, decks, and spaces 
used to process fish, and allowing observers access to vessel 
communication and navigations systems. Amendment 5 would expand these 
requirements, such that vessels issued limited access permits and 
carrying NMFS-approved observers must provide observers with the 
following: (1) A safe sampling station adjacent to the fish deck, and a 
safe method to obtain and store samples; (2) reasonable assistance to 
allow observers to complete their duties; (3) advance notice when 
pumping will start and end and when sampling of the catch may begin; 
and (4) visual access to net/codend or purse seine and any of its 
contents after pumping has ended, including bringing the codend and its 
contents aboard if possible. Additionally, Amendment 5 would require 
vessels issued limited access permits working cooperatively in the 
herring fishery to provide NMFS-approved observers with the estimated 
weight of each species brought on board or released on each tow. These 
measures are anticipated to help improve at-sea catch monitoring in the 
herring fishery by enhancing the observer's ability collect quality 
data in a safe and efficient manner.
    Currently, observer coverage levels in the herring fishery are 
determined by the Northeast Fisheries Science Center, based on the 
standardized bycatch reporting methodology (SBRM), after consultations 
with the Council, and funded by NMFS. Amendment 5 would increase the 
observer coverage in the herring fishery by requiring 100-percent 
observer coverage on Category A and B vessels. Many stakeholders 
believe this measure is necessary to accurately determine the extent of 
bycatch and incidental catch in the herring fishery. The Council 
recommended this measure to gather more information on the herring 
fishery so that it may better evaluate and, if necessary, implement 
additional measures to address issues involving catch and discards. The 
100-percent observer requirement is coupled with a target maximum 
industry contribution of $325 per day. The at-sea costs associated with 
an observer in the herring fishery are higher than $325 per day, and, 
currently, there is no mechanism to allow cost-sharing of at-sea costs 
between NMFS and the industry.
    Throughout the development of Amendment 5, NMFS advised the Council 
that Amendment 5 must identify a funding source for increased observer 
coverage because NMFS's annual appropriations for observer coverage are 
not guaranteed. Because Amendment 5 does not identify a funding source 
to cover all of the increased costs of observer coverage, the proposed 
100-percent observer coverage requirement may not be sufficiently 
developed to approve at this time.
    Recognizing these funding challenges, the Council recommended 
status quo observer coverage levels and funding for up to 1 year 
following the implementation of Amendment 5, with the 100-percent 
observer coverage and partial industry funding requirement to become 
effective 1 year after the implementation of Amendment 5. During that 
year, the Council and NMFS, in cooperation with the industry, would 
attempt to develop a way to fund 100-percent observer coverage. A 
technical team, comprised of Council, Mid-Atlantic Fishery Management 
Council, and NMFS staff, is currently attempting to develop a legal 
mechanism to allow the at-sea costs of increased observer coverage to 
be funded by the industry. Even if the 100-percent observer coverage 
measure in Amendment 5 cannot be approved at this time, the team will 
continue to work on finding a funding solution to pay for the at-sea 
cost of the observer coverage in the herring fishery. If the technical 
team can develop a way to fund the at-sea costs of 100-percent observer 
coverage, a measure requiring 100-percent observer coverage on Category 
A and B vessels may be implemented in a future action, perhaps within 
the 1-year period specified in Amendment 5, subject to NMFS's budget 
appropriations and other observer data collection needs in the 
Northeast Region and elsewhere in the country.

[[Page 33025]]

    Additionally, other measures proposed in this action would help 
improve monitoring in the herring fishery regardless of whether the 
100-percent observer coverage measure is approved at this time. These 
proposed measures include the requirement for vessels to contact NMFS 
at least 48 hr in advance of a fishing trip to facilitate the placement 
of observers, observer sample station and reasonable assistance 
requirements to improve an observer's ability collect quality data in a 
safe and efficient manner, and the sampling requirements for midwater 
trawl vessels fishing in groundfish closed areas to minimize the 
discarding of unsampled catch.
    The same measure that would require 100-percent observer coverage, 
coupled with a $325 contribution by the industry, would also require 
that: (1) The 100-percent coverage requirement would be re-evaluated by 
the Council 2 years after implementation; (2) the 100-percent coverage 
requirement would be waived if no observers were available, but not 
waived for trips that enter the River Herring Monitoring/Avoidance 
Areas; (3) observer service provider requirements for the Atlantic sea 
scallop fishery would apply to observer service providers for the 
herring fishery; and (4) states would be authorized as observer service 
providers. Because these additional measures appear inseparable from 
the 100-percent observer coverage requirement, their approval or 
disapproval is dependent upon the approvability of the partially 
industry-funded 100-percent observer coverage measure.
    Amendment 5 would require limited access vessels to bring all catch 
aboard the vessel and make it available for sampling by an observer. 
The Council recommended this measure to improve the quality of at-sea 
monitoring data by reducing the discarding of unsampled catch. If catch 
is discarded before it has been made available to the observer, that 
catch is defined as slippage. Fish that cannot be pumped and remain in 
the net at the end of pumping operations are considered operational 
discards and not slipped catch. Vessels may make test tows without 
pumping catch on board, provided that all catch from test tows is 
available to the observer when the following tow is brought aboard. 
Some stakeholders believe that slippage is a serious problem in the 
herring fishery because releasing catch before an observer can estimate 
its species composition undermines accurate catch accounting.
    Amendment 5 would allow catch to be slipped if: (1) Bringing catch 
aboard compromises the safety of the vessel; (2) mechanical failure 
prevents the catch from being brought aboard; or (3) spiny dogfish 
prevents the catch from being pumped aboard. But if catch is slipped, 
the vessel operator would be required to complete a released catch 
affidavit within 48 hr of the end of the fishing trip. The released 
catch affidavit would detail: (1) Why catch was slipped; (2) an 
estimate of the quantity and species composition of the slipped catch; 
and (3) the time and location of the slipped catch. Additionally, 
Amendment 5 would establish slippage caps for the herring fishery. Once 
there have been 10 slippage events in a herring management area by 
vessels using a particular gear type (including midwater trawl, bottom 
trawl, and purse seine) and carrying an observer, vessels that 
subsequently slip catch in that management area, using that particular 
gear type and carrying an observer, would be required to immediately 
return to port. NMFS would track slippage events and notify the fleet 
once a slippage cap had been reached. Slippage events due to spiny 
dogfish preventing the catch from being pumped aboard the vessel would 
not count against the slippage caps, but slippage events due to safety 
concerns or mechanical failure would count against the slippage caps. 
The Council recommended these slippage caps to discourage the 
inappropriate use of the slippage exceptions, and to allow for some 
slippage, but not unduly penalize the fleet.
    Throughout the development of Amendment 5 NMFS identified potential 
concerns with the rationale supporting, and legality of, the slippage 
caps. The need for, and threshold for triggering, a slippage cap (10 
slippage events by area and gear type) does not appear to have a strong 
biological or operational basis. Recent observer data (2008-2011) 
indicate that the estimated amount of slipped catch is relatively low 
(approximately 1.25 percent) compared to total catch. Observer data 
also indicate that the number of slippage events is variable across 
years. During 2008-2011, the number of slippage events per year ranged 
between 35 and 166. The average number of slippage events by gear type 
during 2008, 2009, and 2011 are as follows: 4 by bottom trawl; 36 by 
purse seine; and 34 by midwater trawl.
    Once a slippage cap has been met, vessels that slip catch, even if 
the reason for slipping was safety or mechanical failure, would be 
required to return to port. Vessels may continue fishing following 
slippage events 1 through 10, but must return to port following the 
11th slippage event, regardless of the vessel's role in the first 10 
slippage events. This aspect of the measure may be seen as arbitrary. 
Additionally, this measure may result in a vessel operator having to 
choose between trip termination and bringing catch aboard despite a 
safety concern. For these reasons, this measure may be inconsistent 
with the MSA National Standards 2 and10.
    The measures to minimize slippage are based on the sampling 
requirements for midwater trawl vessels fishing in Groundfish Closed 
Area I. However, there are important differences between these 
measures. Under the Closed Area I requirements, if midwater trawl 
vessels slip catch, they are allowed to continue fishing, but they must 
leave Closed Area I for the remainder of that trip. The requirement to 
leave Closed Area I is less punitive than the proposed requirement to 
return to port. Therefore, if the safety of bringing catch aboard is a 
concern, leaving Closed Area I and continuing to fish would likely be 
an easier decision for a vessel operator to make than the decision to 
return to port. Additionally, because the consequences of slipping 
catch apply uniformly to all vessels under the Closed Area I 
requirements, inequality among the fleet is not an issue for the Closed 
Area I requirements, like it appears to be for the proposed slippage 
caps.
    In 2010, the Northeast Fisheries Observer Program (NEFOP) revised 
the training curriculum for observers deployed on herring vessels to 
focus on effectively sampling in high-volume fisheries. NEFOP also 
developed a discard log to collect detailed information on discards in 
the herring fishery, including slippage, such as why catch was 
discarded, the estimated amount of discarded catch, and the estimated 
composition of discarded catch. Recent slippage data collected by 
observers indicate that: Information about these events, and the amount 
and composition of fish that are slipped, has improved; and the number 
of slippage events by limited access herring vessels has declined. 
Given NEFOP's recent training changes and its addition of a discard 
log, NMFS believes that observer data on slipped catch, rather than 
released catch affidavits, provide the best information to account for 
discards. However, there is still a compliance benefit to requiring a 
released catch affidavit because it would provide enforcement with a 
sworn statement regarding the operator's decisions and may help to 
understand why slippage occurs.
    In summary, NMFS seeks public comment on whether there is a 
biological need for the proposed

[[Page 33026]]

slippage caps, whether the trigger (10 slippage events by area and gear 
type) for the proposed slippage caps has adequate justification, and 
whether the requirement to return to port would be inequitable or 
result in safety concerns. After evaluating public comment, NMFS will 
determine if the proposed slippage caps can be approved or if they must 
be disapproved. Even if the slippage caps must be disapproved, the 
ongoing data collection by NEFOP and the proposed sampling requirements 
for midwater trawl vessels fishing in groundfish closed areas, 
including a released catch affidavit requirement, would still allow for 
improved monitoring in the herring fishery, increased information 
regarding discards, and an incentive to minimize the discarding of 
unsampled catch.

3. Measures to Address River Herring Interactions

    Amendment 5 would establish several measures to address the catch 
of river herring in the herring fishery to minimize bycatch and bycatch 
mortality to the extent practicable. River herring (the collective term 
for alewife and blueback herring) are anadromous species that may co-
occur seasonally with herring and are harvested as a non-target species 
in the herring fishery. When river herring are encountered in the 
herring fishery, they are either discarded at sea (bycatch) or, because 
they closely resemble herring, they are retained and sold as part of 
the herring catch (incidental catch). For the purposes of this 
rulemaking, the terms bycatch and incidental catch are used 
interchangeably. While measures in Amendment 5 are not specifically 
designed to address the catch of shad (American and hickory) in the 
herring fishery, the overlap in distribution between river herring and 
shad suggests that measures to reduce the catch of river herring will 
also reduce the catch of shad.
    River herring are managed by the Atlantic States Marine Fisheries 
Commission (ASMFC) and individual states. According to the most recent 
ASMFC river herring stock assessment (May 2012), river herring 
populations have declined from historic levels and many factors will 
need to be addressed to allow their recovery, including fishing (in 
both state and Federal waters), river passageways, water quality, 
predation, and climate change. In an effort to aid in the recovery of 
depleted or declining stocks, the ASMFC, in cooperation with individual 
states, prohibited state waters commercial and recreational fisheries 
that did not have approved sustainable fisheries management plans, 
effective January 1, 2012. NMFS considers river herring to be a species 
of concern and a candidate species under the Endangered Species Act 
(ESA). NMFS is currently determining whether listing river herring as 
threatened or endangered under the ESA is warranted.
    Amendment 5 would establish River Herring Monitoring/Avoidance 
Areas for the herring fishery. These would be bimonthly areas to 
monitor river herring catch and encourage river herring avoidance. The 
coordinates for these areas are described in the proposed regulations 
at 50 CFR 648.200(f)(4). The areas are based on NEFOP data between 2005 
and 2009 where river herring catch (greater than 40 lb (18 kg)) 
occurred in the herring fishery. Once established, the River Herring 
Monitoring/Avoidance Areas would be subject to the Amendment 5 proposed 
measures to reduce slippage and require 100-percent observer coverage 
on Category A and B vessels, if approved. While the magnitude of the 
effect of river herring bycatch on river herring populations is 
unknown, minimizing river herring bycatch to the extent practicable is 
a goal of Amendment 5.
    Amendment 5 would establish a mechanism to develop, evaluate, and 
consider regulatory requirements for a river herring bycatch avoidance 
strategy in the herring fishery. The river herring bycatch avoidance 
strategy would be developed and evaluated by the Council, in 
cooperation with participants in the herring fishery, specifically the 
Sustainable Fisheries Coalition (SFC); the Massachusetts Division of 
Marine Fisheries (MA DMF); and the University of Massachusetts 
Dartmouth School of Marine Science and Technology (SMAST). This measure 
is based on the existing river herring bycatch avoidance program 
involving SFC, MA DMF, and SMAST. This voluntary program seeks to 
reduce river herring and shad bycatch by working within current 
fisheries management programs, without the need for additional 
regulatory requirements. The river herring bycatch avoidance program 
includes portside sampling, real-time communication with the SFC on 
river herring distribution and encounters in the herring fishery, and 
data collection to evaluate if oceanographic features may predict high 
rates of river herring encounters.
    Phase I of the river herring bycatch avoidance strategy would 
include: (1) Increased monitoring and sampling of herring catch from 
the River Herring Monitoring/Avoidance Areas; (2) providing for 
adjustments to the River Herring Monitoring/Avoidance Area and river 
herring bycatch avoidance strategies through a future framework 
adjustment to the Herring FMP; and (3) Council staff collaboration with 
SFC, MA DMF, and SMAST to support the ongoing project evaluating river 
herring bycatch avoidance strategies.
    Upon completion of the existing SFC/MA DMF/SMAST river herring 
bycatch avoidance project, Phase II of this proposed measure would 
begin. Phase II would involve the Council's review and evaluation of 
the results from the river herring bycatch avoidance project, and a 
public meeting to consider a framework adjustment to the Herring FMP to 
establish river herring bycatch avoidance measures. Measures that may 
be considered as part of the framework adjustment include: (1) 
Adjustments to the River Herring Monitoring/Avoidance Areas; (2) 
mechanisms to tracking herring fleet activity, report bycatch events, 
and notify the herring fleet of encounters with river herring; (3) the 
utility of test tows to determine the extent of river herring bycatch 
in a particular area; (4) the threshold for river herring bycatch that 
would trigger the need for vessels to be alerted and move out of the 
Area; and (5) the distance and/or time that vessels would be required 
to move from the Areas.
    Amendment 5 would also establish the ability to consider 
implementing a river herring catch cap for the herring fishery in a 
future framework adjustment to the Herring FMP. Amendment 1 to the 
Herring FMP identified catch caps as management measures that could be 
implemented via a framework or the specifications process, with a focus 
on a haddock catch cap for the herring fishery. Amendment 5 contains a 
specific alternative that considers implementing a river herring catch 
cap through a framework or the specifications process. On the basis of 
the explicit consideration of a river herring catch cap, and the 
accompanying analysis, in Amendment 5, NMFS has advised the Council 
that it would be more appropriate to consider a river herring catch cap 
in a framework subsequent to the implementation of Amendment 5.
    Amendment 5 contains some preliminary analysis of a river herring 
catch cap, but additional development of a range of alternatives (e.g., 
amount of cap, seasonality of cap, consequences of harvesting cap) and 
the environmental impacts (e.g., biological, economic) of a river 
herring catch cap would be necessary prior to implementation. 
Therefore, it would be more appropriate to consider implementing a 
river herring catch cap through a framework, rather than through the 
specifications. The Council

[[Page 33027]]

may begin development of the river herring catch cap framework 
immediately, but the framework cannot be implemented prior to the 
approval and implementation of Amendment 5.
    During the development of Amendment 5, the ASMFC began work on a 
new stock assessment for river herring. It was hoped that the new 
assessment would help inform the analysis to determine a reasonable 
range of alternatives for a river herring catch cap. The ASMFC's river 
herring assessment was completed in May 2012, and the Council took 
final action on Amendment 5 in June of 2012. Therefore, there was not 
enough time to review the assessment, and if appropriate, incorporate 
its results in the development of a river herring catch cap in 
Amendment 5. At its November 2012 meeting, the Council approved a river 
herring catch cap framework (Framework 3 to the Herring FMP) as a 
priority for 2013.
    In Framework 3, the Council would need to consider whether a river 
herring catch cap would provide sufficient incentive for the industry 
to avoid river herring and help to minimize encounters with river 
herring along with weighing the practicability of the proposed 
measures. Based on the ASMFC's recent river herring assessment, data do 
not appear to be robust enough to determine a biologically-based river 
herring catch cap and/or the potential effects on river herring 
populations of such a catch cap on a coast-wide scale. Still, the 
Council supports establishing the ability to consider a river herring 
catch cap and considering approaches for setting a river herring catch 
cap in the herring fishery as soon as possible.
    The Mid-Atlantic Fishery Management Council is also considering 
establishing a river herring catch cap for its mackerel fishery. Due to 
the mixed nature of the herring and mackerel fisheries, especially 
during January through April, the potential for the greatest river 
herring catch reduction would come from the implementation of a joint 
river herring catch cap for both the herring and mackerel fisheries. On 
May 23, 2013, the New England and the Mid-Atlantic Councils' technical 
teams for the herring and mackerel fisheries met to begin development 
of river herring catch caps. Additionally, the New England Council 
currently plans to consider Framework 3 at its upcoming June and 
September 2013 meetings.
    One of the primary goals of Amendment 5 is to address bycatch 
issues through responsible management, consistent with the MSA National 
Standard 9 requirement to minimize bycatch and mortality of unavoidable 
bycatch to the extent practicable. Monitoring and avoidance are 
critical steps to a better understanding of the nature and extent of 
bycatch in this fishery in order to sufficiently analyze and, if 
necessary, address bycatch issues. The Council considered other 
measures to address river herring bycatch in Amendment 5, including 
closed areas. Because the seasonal and inter-annual distribution of 
river herring is highly variable in time and space, the Council 
determined that the most effective measures in Amendment 5 to address 
river herring bycatch would be those that increase catch monitoring, 
bycatch accounting, and promote cooperative efforts with the industry 
to minimize bycatch to the extent practicable.

4. Measures to Address Midwater Trawl Access to Groundfish Closed Areas

    Amendment 5 would expand the existing requirements for midwater 
trawl vessels fishing in Groundfish Closed Area I to all herring 
vessels fishing with midwater trawl gear in the Groundfish Closed 
Areas. These Closed Areas include: Closed Area I, Closed Area II, 
Nantucket Lightship Closed Area, Cashes Ledge Closure Area, and Western 
Gulf of Maine Closure Area. The coordinates for these areas are defined 
at 50 CFR 648.81(a)-(e). Amendment 5 would require vessels with a 
herring permit fishing with midwater trawl gear in the Closed Areas to 
carry a NMFS-approved observer and bring all catch aboard the vessel 
and make it available for sampling by an observer. Herring vessels not 
carrying a NMFS-approved observer may not fish for, possess, or land 
fish in or from the Closed Areas. Vessels may make test tows without 
pumping catch on board, provided that all catch from test tows is 
available to the observer when the next tow is brought aboard. 
Amendment 5 would allow catch to be released before it was pumped 
aboard the vessel if: (1) Pumping the catch aboard could compromise the 
safety of the vessel, (2) mechanical failure prevents the catch from 
being pumped aboard, or (3) spiny dogfish have clogged the pump and 
prevent the catch from being pumped aboard. But if catch is released 
for any of the reasons stated above, the vessel operator would be 
required to immediately exit the Closed Area. The vessel may continue 
to fish, but it may not fish in any Closed Area for the remainder of 
that trip. Additionally, vessels that release catch before it has been 
sampled by an observer must complete a midwater trawl released catch 
affidavit within 48 hr of the end of the fishing trip. The released 
catch affidavit would detail: (1) Why catch was released; (2) an 
estimate of the weight of fish caught and released; and (3) the time 
and location of the released catch.
    As described previously, given NEFOP's recent training changes and 
its addition of a discard log, NMFS believes that observer data on 
slipped catch rather than released catch affidavits provide the best 
information to account for discards. However, there is still a 
compliance benefit to requiring a released catch affidavit because it 
would provide enforcement with a sworn statement regarding the 
operator's decisions and may help to understand why slippage occurs.
    These proposed measures to address midwater trawl access to 
Groundfish Closed Areas are similar to the proposed measures to 
minimize slippage; however, there are important differences between 
these measures. Under these proposed measures, if midwater trawl 
vessels release catch in the Closed Areas, they are allowed to continue 
fishing, but they may not fish in Closed Areas for the remainder of 
that trip. The proposed requirement to leave the Closed Areas and 
continue to fish is less punitive than the proposed requirement to 
return to port if a vessel slips catch. Therefore, if the safety of 
bringing catch aboard is a concern, simply leaving the Closed Areas but 
continuing to fish would likely be an easier decision for a vessel 
operator to make than the decision to stop fishing and return to port. 
Additionally, because the consequences of releasing catch apply 
uniformly to all vessels under these proposed requirements, the 
potential of inequality across the fleet is not an issue for these 
proposed requirements, like it appears to be for the proposed slippage 
caps.
    Analyses in the Amendment 5 FEIS suggest that midwater trawl 
vessels are not catching significant amounts of groundfish either 
inside or outside the Closed Areas. Additionally, the majority of 
groundfish catch by midwater trawl vessels is haddock, and the catch of 
haddock by midwater trawl vessels is already managed through a haddock 
catch cap for the herring fishery. However, as described previously, 
the Council believes it is important to determine the extent and nature 
of bycatch in the herring fishery. This proposed measure would still 
allow the herring midwater trawl fishery to operate in the Closed 
Areas, but it would ensure that opportunities for monitoring and 
sampling were maximized.

[[Page 33028]]

5. Adjustments to List of Measures Modified Through Framework 
Adjustments or Specifications

    Amendment 5 would specify the ability to modify management measures 
revised or established by Amendment 5 through a framework adjustment to 
the Herring FMP or the specifications process.
    The measures that could be modified through a framework would 
include: (1) Changes to vessel trip notification and declaration 
requirements; (2) adjustments to measures to address net slippage; (3) 
adjustments to requirements for observer coverage levels; (4) 
provisions related to an industry-funded catch monitoring program; (5) 
River Herring Monitoring/Avoidance Areas; (6) provisions for the river 
herring bycatch avoidance program; (7) changes to criteria/provisions 
for access to the Groundfish Closed Areas; and (8) river herring catch 
caps.
    The list of measures that could be modified through the 
specifications process would include: (1) Possession limits; (2) River 
Herring Monitoring/Avoidance Areas; (3) river herring catch caps; and 
(4) provisions related to an industry-funded catch monitoring program.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with Amendment 5 to the Herring FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment and the concerns noted in the 
preamble.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared a final environmental impact statement (FEIS) 
for Amendment 5. A notice of availability for the FEIS was published on 
April 26, 2013 (78 FR 24743). The FEIS describes the impacts of the 
proposed measures on the environment. Proposed revisions to fishery 
management program measures, including permitting provisions, dealer 
and vessel reporting requirements, measures to address carrier vessels, 
regulatory definitions, and trip notifications, are expected to improve 
catch monitoring in the herring fishery with positive biological 
impacts on herring and minimal negative economic impacts on human 
communities. Proposed increases to observer coverage requirements, 
measures to improve at sea-sampling by observers, and measures to 
minimize the discarding of catch before it has been sampled by 
observers are also expected to improve catch monitoring and have 
positive biological impacts on herring. The economic impacts on human 
communities of these proposed measures are varied, but negative 
economic impacts may be substantial compared to status quo. Proposed 
measures to address bycatch to the extent practicable are expected to 
have positive biological impacts and moderate negative economic impacts 
on human communities. Lastly, all proposed measures are expected to 
have positive biological impacts on non-target species and neutral 
impacts on habitat and protected resources.
    The Council prepared an IRFA, as required by section 603 of the 
Regulatory Flexibility Act (RFA). The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained at the beginning of this section in 
the preamble and in the SUMMARY section. A summary of the analysis 
follows. A copy of this analysis is available from the Council or NMFS 
(see ADDRESSES) or via the Internet at http://www.nero.noaa.gov.

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

    The RFA recognizes three kinds of small entities: Small businesses, 
small organizations, and small governmental jurisdictions. The majority 
of the proposed measures in Amendment 5 affect vessels participating in 
the herring fishery. The small business criteria in the Finfish fishing 
industry is a firm that is independently owned and operated and not 
dominant in its field of operation, with gross annual receipts $4 
million or less. Additionally, a portion of the proposed measures in 
Amendment 5 affect herring dealers. The small business standard for 
fish and seafood wholesalers is 100 employees. Some of the herring 
dealers are also processors. The small business standard for Fresh and 
Frozen Seafood Processing is 500 employees. Neither small organizations 
nor small governmental jurisdictions are expected to experience 
significant economic impacts by measures proposed in Amendment 5.
    In 2011, there were 2,240 vessels with herring permits. Of these 
vessels, 91 vessels with limited access herring permits (Category A, B, 
and C) and 2,147 vessels with open access herring permits (Category D) 
would be considered small entities for RFA purposes. Category D vessels 
participate incidentally in the herring fishery and would only be 
subject to the proposed regulatory definitions and the requirements for 
midwater trawl vessels fishing in the Groundfish Closed Areas. 
Therefore, this RFA analysis is focused on the 91 vessels with limited 
access herring permits.
    Herring vessels can work cooperatively in temporary, short-term 
partnerships for pair trawling or seining activities, and vessels may 
also be affiliated with processing plants. NMFS currently has no data 
regarding vertical integration or ownership. Therefore, for the 
purposes of this RFA analysis, the entity in the harvesting sector is 
the individual vessel. Additionally, at this time, all dealers/
processors are treated as small entities.
    Section 5.0 in Amendment 5 describes the vessels, key ports, and 
revenue information for the herring fishery, therefore, that 
information is not repeated here.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

Minimizing Significant Economic Impacts on Small Entities

    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). The new requirements, 
which are described in detail in the preamble, have been submitted to 
OMB for approval as a new collection. Amendment 5 would also remove a 
VMS power-down exemption for herring vessels and a catch reporting 
requirement for herring carrier vessels. Amendment 5 would prohibit 
herring vessels from powering-down their VMS units in port, unless 
specifically authorized by the NMFS RA. The existing power-down 
exemption was approved under OMB Control Number 0648-0202 and, upon 
renewal, will be removed from that information collection. 
Additionally, Amendment 5 would remove the existing weekly VTR 
requirement for herring carrier vessels. That requirement was approved 
under OMB Control Number 648-0212 and, upon renewal, will be removed 
from that information collection. The proposed action does not 
duplicate, overlap, or conflict with any other Federal rules.
    Amendment 5 would establish two new herring permits. The 
application process to obtain a new Areas \2/3\ Open Access Permit 
takes an estimated 1 min to complete and costs $0.45 to mail. The

[[Page 33029]]

new Areas \2/3\ Open Access Herring Permit would require the vessel to 
purchase and maintain a VMS. Because other Northeast Federal permits 
require vessels to maintain a VMS, it is estimated that only 6 vessels 
that were issued open access herring permits do not already have a VMS. 
The average cost of purchasing and installing a VMS is $3,400, the VMS 
certification form takes an estimated 5 min to complete and costs $0.45 
to mail, and the call to confirm a VMS unit takes an estimated 5 min to 
complete and costs $1. The average cost of maintaining a VMS is $600 
per year. Northeast regulations require VMS activity declarations and 
automated polling of VMS units to collect position data. Each activity 
declaration takes an estimated 5 min to complete and costs $0.50 to 
transmit. If a vessel takes an average of 5 trips per year, the burden 
estimate for the activity declarations would be 25 min and $3. Each 
automated polling transmission costs $0.06 and a vessel is polled once 
per hour every day of the year. The annual estimated cost associated 
with polling is $526. In summary, the total annual burden estimate for 
a vessel to purchase and maintain a VMS would be 35 min and $4,530.
    Amendment 5 would also require that vessels issued the new Areas 
\2/3\ Open Access Herring Permit comply with existing catch reporting 
requirements for Category C vessels, specifically the submission of 
daily VMS reports and weekly VTRs. The cost of transmitting a catch 
report via VMS is $0.60 per transmission and it is estimated to take 5 
min to complete. If a vessel takes an average of 5 trips per year and 
each trip lasts an average of 2 days, the total annual burden estimate 
of daily VMS reporting for a vessel is estimated to be 50 min and $6. 
Category D vessels are currently required to submit weekly VTRs, so 
there would be no additional burden associated with VTRs for those 
vessels. If a vessel without a Category D permit was issued the new 
Areas \2/3\ Open Access Herring Permit, the annual burden estimate of 
VTR submissions is $18. This cost was calculated by multiplying 40 (52 
weeks in a year minus 12 (number of monthly reports)) by $0.45 to equal 
$18. The VTR is estimated to take 5 min to complete. Therefore, the 
total annual burden estimate of weekly VTRs is $18 and 3 hr and 20 min.
    This action proposes new reporting burdens associated with 
obtaining an At-Sea Herring Dealer Permit. The new herring dealer 
permit is for herring carriers that sell fish. Historically, 
approximately 25 vessels per year have been issued an LOA to act a 
herring carrier. The application for an At-Sea Herring Dealer Permit 
would take an estimated 15 min to complete and $0.45 to mail. The 
annual burden estimate to renew an At-Sea Herring Dealer Permit would 
be 5 min to complete the renewal and $0.45 to mail the renewal. Dealers 
are required to submit weekly reports via the internet. These reports 
are estimated to take 15 min to complete; therefore, the annual burden 
associated with dealer reporting is 13 hr. The cost for this 
information collection is related to internet access. The 25 vessels 
that may obtain the new At-Sea Herring Dealer Permit may not already be 
accessing the internet for other reasons/requirements, and would have 
to obtain internet access. Internet access would be required for the 
submission of weekly dealer reports. Operating costs consist of 
internet access, available through either dial-up or cable modem, with 
an average annual cost of $652 per year. Therefore, the annual cost 
burden associated with dealer reporting is estimated to be $652.
    Amendment 5 would expand the number of herring vessels required to 
submit a VMS pre-landing notification and would add a gear declaration 
to the existing VMS activity declaration requirement. A subset of 
herring vessels are currently required to notify NMFS OLE via VMS 6 hr 
prior to landing, and this action proposes to expand that requirement 
to all limited access herring vessels, vessels issued the new Areas \2/
3\ Open Access Herring Permit (Category E), and herring carrier 
vessels. It is estimated that Amendment 5 would require an additional 
51 Herring Category C vessels, 80 Herring Category E vessels, and 25 
herring carriers to submit VMS pre-landing notification. Each VMS pre-
landing notification is estimated to take 5 min to complete and costs 
$1. Category C vessels are estimated to take an average of 13 trips per 
year, so the total annual burden estimate for a Category C vessel 
making VMS pre-landing notifications would be 65 min and $13. The new 
Category E vessels would take an estimated 5 trips per year, so the 
total burden estimate for a Category E vessel making VMS pre-landing 
notifications would be 25 min and $5. Herring carriers are estimated to 
take an average of 4 trips per year, so the total annual burden 
estimate for a herring carrier making VMS pre-landing notifications 
would be 20 min and $4. The proposed gear declaration would apply to 
limited access herring vessels. There would be no additional reporting 
burden associated with the gear declaration because it would only be an 
additional field added to the existing VMS pre-trip notification 
requirement, approved under OMB 0648-0202.
    Amendment 5 would allow vessels to choose between enrolling as a 
herring carrier with an LOA or declaring a herring carrier trip via 
VMS. Vessels may declare a herring carrier trip via VMS, if they 
already have and maintain a VMS, or continue to request an LOA. There 
would be no additional reporting burden associated with this measure 
because both the LOA and the VMS activity declaration are existing 
requirements for herring vessels.
    Amendment 5 would increase the reporting burden for measures 
designed to improve at-sea sampling by NMFS-approved observers. A 
subset of herring vessels are currently required to notify NMFS to 
request an observer, and this action proposes to expand that 
requirement to all limited access herring vessels, vessels issued the 
new Areas \2/3\ Open Access Herring Permit (Category E), and herring 
carrier vessels. This pre-trip observer notification requirement is 
estimated to affect 156 additional vessels. Vessels would be required 
to call NMFS to request an observer at least 48 hr prior to beginning a 
herring trip. The phone call is estimated to take 5 min to complete and 
is free. If a vessel has already contacted NMFS to request an observer 
and then decides to cancel that fishing trip, Amendment 5 would require 
that vessel to notify NMFS of the trip cancelation. The call to notify 
NMFS of a cancelled trip is estimated to take 1 min to complete and is 
free. If a vessel takes an estimated 25 trips per year, the total 
annual reporting burden associated with the pre-trip observer 
notification would be 2 hr 30 min.
    Amendment 5 would require a released catch affidavit for limited 
access vessels that discard catch before it had been made available to 
an observer for sampling (slipped catch). The reporting burden for 
completion of the released catch affidavit is estimated to average 5 
min, including the time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information. The cost associated with 
the affidavit is the postage to mail the form to NMFS ($0.45). The 
affidavit requirement would affect an estimated 93 limited access 
herring vessels. If those vessels slipped catch once per trip with an 
observer onboard, and took an estimated 38 trips per year, the total 
annual reporting burden for the released catch affidavit would be 3 hr 
10 min and $17.
    Amendment 5 would also require vessels fishing with midwater trawl 
gear in Groundfish Closed Areas to complete

[[Page 33030]]

a released catch affidavit if catch is discarded before it is brought 
aboard the vessel and made available for sampling by an observer. At 
this time, there are no known Category D vessels that fish with 
midwater trawl gear; therefore, there is no additional reporting 
burden, beyond that described above, for the released catch affidavit 
associated with Groundfish Closed Areas.
    Amendment 5 would require herring dealers to document, for each 
transaction, how they estimate the relative composition of catch, if 
catch is not sorted by species. This requirement would apply to all 
transactions involving the sale of herring and would be in addition to 
the existing dealer reporting requirements. The additional reporting 
burden of documenting relative species composition for each of the 
above types of transactions is expected to take 5 min per transaction. 
In April 2013, there were 262 entities that held either a herring 
dealer (260) or herring at-sea processor permit (2). The new Herring 
At-Sea Dealer Permit for herring carriers that sell fish may affect up 
to 25 additional entities. In total, an estimated 287 herring dealers 
may be required to report relative species composition. Dealers make an 
average of 3,000 transactions per year. Therefore, the annual burden 
associated of documenting relative species composition for each herring 
dealer is estimated to be 250 hr.
    Amendment 5 would require that when vessels issued limited access 
herring permits are working cooperatively in the Atlantic herring 
fishery, including pair trawling, purse seining, and transferring 
herring at-sea, vessels must provide to observers, when requested, the 
estimated weight of each species brought on board or released on each 
tow. NMFS expects that the vessel operator would do this for each trip, 
and not on a tow by tow basis. Vessel operators should have this 
information recorded and available to report to the observer, so NMFS 
estimates the response to take 1 min and it would not have any 
associated cost since it would be a verbal notification for the 
observer to record.
    Amendment 5 would require 100-percent observer coverage on Category 
A and B herring vessels, coupled with a $325 per day contribution by 
industry. This proposed industry-funded observer program would be 
effective 1 year following the implementation of Amendment 5. There are 
an estimated 42 Category A and B vessels in the herring fishery. NMFS 
estimates that each vessel spends an average of 42 days per year at 
sea. Therefore, the annual cost associated with carrying an NMFS-
approved observer for a Category A or B vessel is estimated to be 
$13,650.
    Under the proposed industry-funded observer program, Category A and 
B vessels would be required to contact an observer service provider to 
request an observer. An estimated 42 vessels would be subject to this 
requirement. If those vessels took an estimated 25 trips per year and 
the call to the observer service provide took an estimated 10 min to 
complete and cost $1, the annual reporting burden of the proposed 
notification requirement is estimated to be 4 hr and 10 min and $25. If 
an observer service provide had no observer available, Category A and B 
vessels would be required to notify NMFS to request an observer waiver. 
The likelihood of an observer not being available is anticipated to be 
low. Therefore, if on 2 occasions the vessels needed to contact NMFS to 
request a waiver, and the call took an estimated 5 min to complete and 
was free, the annual reporting burden to request a waiver is estimated 
to be 10 min.
    NMFS expects that additional observer service providers may apply 
for certification under the observer certification procedures found at 
50 CFR 648.11(h). NMFS expects that 3 additional providers may apply 
for certification. In addition, existing providers, and the 3 potential 
additional providers, would be required to submit additional reports 
and information required of observer service providers as part of their 
certification. NMFS expects that 6 providers would be subject to these 
new requirements. Observer service providers must comply with the 
following requirements, submitted via email, fax, or postal service: 
Submit applications for approval as an observer service provider; 
formally request observer training by NEFOP; submit observer deployment 
reports and biological samples; give notification of whether a vessel 
must carry an observer within 24 hr of the vessel owner's notification 
of a prospective trip; maintain an updated contact list of all 
observers that includes the observer identification number; observer's 
name mailing address, email address, phone numbers, homeports or 
fisheries/trip types assigned, and whether or not the observer is ``in 
service.'' The regulations would also require observer service 
providers to submit any outreach materials, such as informational 
pamphlets, payment notification, and descriptions of observer duties as 
well as all contracts between the service provider and entities 
requiring observer services for review to NMFS. Observer service 
providers also have the option to respond to application denials, and 
submit a rebuttal in response to a pending removal from the list of 
approved observer providers. NMFS expects that all of these reporting 
requirements combined are expected to take 1,734 hr of response time 
per year for a total annual cost of $25,363 for the affected observer 
providers. The following table provides the detailed time and cost 
information for each response item.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Total time
             Observer provider requirements                  Number of     Total Number    Time (hours)       burden         Cost per       Annual cost
                                                             entities        of  items     per response       (hours)        response
--------------------------------------------------------------------------------------------------------------------------------------------------------
Observer deployment report by email.....................               6            1500           0.167             251              $0              $0
Observer availability report by email...................               6             900           0.167             150               0               0
Safety refusals by email................................               6             150           0.5                75               0               0
Raw observer data by express mail.......................               6            1500           0.083             125              13          19,500
Observer debriefing.....................................               6             420           2                 840              12           5,040
Other reports...........................................               6             210           0.5               105               0               0
Biological samples......................................               6            1500           0.083             125            0.50             750
New application to be a service provider................               3               3          10                  30            0.44               1
Applicant response to denial............................               1               1          10                  10               0               0
Request for observer training...........................               3               6           0.5                 3            1.80              11
Rebuttal of pending removal from list of approved                      1               1           8                   8               0               0
 observer providers.....................................
Observer contact list updates...........................               3              36           0.083               3               0               0
Observer availability updates...........................               3              36           0.017               1               0               0
Service provider material submissions...................               6              12           0.5                 6            2.50              30

[[Page 33031]]

 
Service provider contracts..............................               6              12           0.5                 6            2.50              30
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............            1736  ..............          25,363
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Public comment is sought regarding the following: Whether this 
proposed collection of information is necessary for the proper 
performance of agency functions, including whether the information 
shall have practical utility; the accuracy of the burden estimate; ways 
to enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to the 
Regional Administrator (see ADDRESSES), and email to [email protected]">OIRA_[email protected] or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives
1. Adjustments to the Fishery Management Program
    Amendment 5 proposes to revise several existing fishery management 
provisions, such as regulatory definitions and VMS requirements, and to 
establish new provisions, such as a new dealer permit and the mechanism 
to consider a river herring catch cap in a future framework, to better 
administer the herring fishery. Two alternatives, the proposed action 
and the no action alternative, were considered for each of these 
provisions. Because of the administrative nature of the proposed 
measures, the economic impacts of selecting the proposed action 
relative to the no action alternative is anticipated to have a neutral 
or low positive economic impact on fishery-related businesses and 
communities. Revising the regulatory definitions for transfer at-sea 
and offload for the herring fishery would reduce any confusion and/or 
errors related to catch reporting, which may, in turn, improve 
reporting compliance, help ensure data accuracy and completeness, and 
lessen the likelihood of double counting herring catch. Establishing an 
At-Sea Herring Dealer Permit for herring carrier vessels that sell 
herring at sea may improve catch monitoring by allowing catch reported 
by harvesting vessels to be matched with sales of herring by herring 
carrier vessels. Expanding vessel requirements related to observer 
sampling would help ensure safe sampling and improve the quality of 
monitoring data. Proposed measures that result in improved catch 
monitoring are anticipated to have low positive economic impacts 
because they may, over the long-term, result in less uncertainty and, 
ultimately, result in additional harvest being made available to the 
herring industry. Specifying that vessels working cooperatively in the 
herring fishery would be subject to the most restrictive possession 
limit associated with the permits issued to the vessels may improve 
enforcement of herring possession limits in multi-vessel operations. 
Eliminating the VMS power-down provision for herring vessels would make 
provisions for herring vessels more consistent with other FMPs and 
would enhance enforcement of the herring regulations. Lastly, 
establishing the mechanism to consider a river herring catch cap in a 
future framework would be a potential way to evaluate directly 
controlling river herring mortality in the herring fishery.
    Amendment 5 proposes that herring carriers be allowed to choose 
between enrolling as a herring carrier with an LOA or declaring a 
herring carrier trip via VMS. Currently, herring carriers enroll as 
herring carriers with an LOA. When vessels are enrolled as carriers 
they cannot have fishing gear aboard, fish for any species, or carry 
any species other than herring. The LOA has a minimum enrollment period 
of 7 days. In addition to the proposed action, Amendment 5 considered 
the no action alternative (herring carriers enroll with an LOA) and a 
non-selected alternative (vessels must declare herring carrier trips 
via VMS). Both the proposed action and the non-selected alternative 
would provide increased operational flexibility at the trip level as 
compared to the no action alternative, without the minimum 7-day 
enrollment period. However, the non-selected alternative would require 
vessels that did not already use a VMS to purchase and maintain a VMS. 
In 2010, approximately 20 vessels that were not required to maintain a 
VMS aboard their vessels requested herring carrier LOAs. The cost of 
purchasing a VMS ranges between $1,700 and $3,300, and operating costs 
are approximately $40 to $100 per month. The proposed action has the 
potential for low positive impacts for fishery-related businesses and 
communities resulting from the increased operational flexibility of 
allowing trip-by-trip planning in comparison to the no action 
alternative. The non-selected alternative and the proposed action would 
both have the potential for low positive benefits from allowing trip-
by-trip planning. In comparison to the proposed action, the non-
selected alternative may have a low negative impact by requiring 
vessels to purchase and maintain a VMS, but that impact would be 
minimal because of the small number of vessels likely affected. 
Overall, the proposed action is anticipated to have the greatest 
positive impact on fishery-related business and communities in 
comparison the no action and non-selected alternative, but that impact 
is low.
    Amendment 5 proposes that existing pre-trip observer notification 
and VMS pre-landing notification requirements be expanded to additional 
herring vessels and that a gear declaration be added to the existing 
VMS activity declaration. The intent of these requirements is: (1) To 
better inform NEFOP of when/where herring fishing activity may occur 
and assist in the effective deployment of observers; (2) to better 
inform NMFS OLE of when/where vessels will be landing their catch land 
to facilitate monitoring of the landing and/or catch; and (3) to 
provide OLE with trip-by-trip information on the gear being fished to 
improve the enforcement of herring gear regulations. Amendment 5 
considered only one alternative to the proposed action, the no action 
alternative. The no action alternative would not impose additional trip 
notification requirements, therefore there would be no additional 
impacts on fishery-related business and communities. Any impact to the 
herring fishery because of the proposed action would be through 
increased administrative and regulatory burden, but the number of 
vessels

[[Page 33032]]

affected and the actual cost of the additionally reporting is low. In 
comparison to the no action alternative, the proposed action is 
anticipated to result in improved catch monitoring and enforcement of 
herring regulations, translating into low positive impacts for fishery-
related businesses and communities.
Dealer Reporting Requirements
    Amendment 5 would require herring dealers to accurately weigh all 
fish and, if catch is not sorted by species, dealers would be required 
to document how they estimate relative species composition in each 
dealer report. Dealers currently report the weight of fish, obtained by 
scale weights and/or volumetric estimates. Because the proposed action 
does not specify how fish are to be weighed, the proposed action is not 
anticipated to change dealer behavior and, therefore, is expected to 
have neutral impacts in comparison to the no action alternative. 
Amendment 5 considered three alternatives to the proposed action, the 
no action alternative, Option 2A, and Option 2C. Option 2A would 
require that relative species composition be documented annually and 
Option 2C would require that a vessel representative confirm each 
dealer report. Overall, relative to the no action alternative, the 
proposed action and Option 2A may have a low negative impact on dealers 
due to the regulatory burden of documenting how species composition is 
estimated. In comparison, Option 2C may have a low positive impact on 
fishery participants, despite an increased regulatory burden, if it 
minimizes any loss of revenue due to data errors in the dealer reports 
and/or the tracking of herring catch.
Areas 2/3 Open Access Herring Permit
    Amendment 5 would establish a new open access herring permit with a 
20,000-lb (9-mt) herring possession limit in herring management Areas 2 
and 3 for limited access mackerel vessels. Amendment 5 considered two 
alternatives to the proposed action, the no action alternative (6,600-
lb (3-mt) herring possession limit) and the non-selected alternative 
(10,000-lb (4.5-mt) herring possession limit). The impact of the 
proposed action on fishery-related businesses and communities is 
expected to be more positive than that of the no action alternative or 
the non-selected alternative. There is significant overlap between the 
mackerel and herring fisheries. Currently, vessels issued an open 
access herring permit and participating in the mackerel fishery are 
required to discard any herring in excess of the open access permit's 
6,600-lb (3-mt) possession limit. The analysis predicts that 
approximately 60 vessels would be eligible for the new open access 
herring permit. In comparison to the no action and non-selected 
alternatives, the proposed action could decrease the occurrence of 
regulatory discards and increase revenue for vessels that are eligible 
for this permit.
2. Adjustments to the At-Sea Catch Monitoring
    Amendment 5 would require 100-percent observer coverage on Category 
A and B vessels coupled with an industry contribution of $325 per day. 
Amendment 5 considered three alternatives to the proposed action 
(Alternative 2), the no action alternative (existing SBRM process for 
determining observer coverage levels), Alternative 3 (modified SBRM 
process for determining observer coverage levels), and Alternative 4 
(Council-specified targets for observer coverage levels). Additionally, 
for each of the action alternatives, Amendment 5 considered funding 
options, NMFS funding (no action alternative) versus NMFS and industry 
funding, and observer service provider options, all observer service 
providers subject to the same requirements (no action alternative) 
versus states as authorized observer service providers. The proposed 
action specifies the highest level of observer coverage in comparison 
to the no action alternative and the non-selected alternatives. The 
specific coverage levels under the no action alternative and the non-
selected alternatives are unknown at this time, because they would 
depend on an analysis of fishery data from previous years, but coverage 
levels under these alternatives are expected to be less than 100 
percent. The proposed action specifies an industry contribution of $325 
per day. For Category A and B vessels, a contribution of $325 is 
estimated to be 3-6 percent of daily revenue and 8-45 percent of daily 
operating costs. The other non-selected alternatives (no action, 
Alternative 3, Alternative 4) do not specify an industry contribution, 
so a comparison of direct costs to industry across alternatives is not 
possible. The proposed action is likely to have the largest negative 
impact on fishery-related businesses and communities of any 
alternatives due to the cost of observer coverage, potentially 
resulting in less effort and lower catch. In the long-term, increased 
monitoring and improved data collections for the herring fishery may 
translate into improved management of the herring fishery that would 
benefit fishery-related businesses and communities. Options for 
observer service providers are likely to have neutral impacts on 
fishery-related businesses across alternatives.
    Amendment 5 would require limited access vessels to bring all catch 
aboard the vessel and make it available for sampling by an observer. If 
catch was slipped before it was sampled by an observer, it would count 
against a slippage cap and require a released catch affidavit to be 
completed. If a slippage cap was reached, a vessel would be required to 
return to port immediately following any additional slippage events. 
Amendment 5 considered four alternatives to the proposed action, the no 
action alternative, Option 2, Option 3, and Option 4. These non-
selected alternatives include various elements of the proposed action, 
including a requirement to complete a released catch affidavit (Option 
2), requirement to bring all catch aboard and make it available to an 
observer for sampling (Option 3), and catch deduction for slipped catch 
(Option 4). The no action alternative would not establish slippage 
prohibitions or slippage caps, but it would maintain the existing 
sampling requirements for midwater trawl vessels fishing in Groundfish 
Closed Area I.
    Negative impacts to the herring fishery associated with all these 
alternatives include increased time spent pumping fish aboard the 
vessel to be sampled by an observer, potential decrease in vessel 
safety during poor operating conditions, and the administrative burden 
of completing a released catch affidavit. The penalties associated with 
slippage vary slightly across the alternatives. A deduction of 100,000 
lb (45 mt) per slippage event in each management area (Option 4) would 
reduce the harvest available to fishing vessels and a trip termination 
(proposed action) after a slippage event would result in higher costs 
for fishing vessels, especially those fishing in offshore areas. The 
overall impacts of the options that propose catch deductions (Option 4) 
and trip termination (proposed action) are similar and, in comparison 
to the no action alternative, are negative. Costs associated with 
herring fishing trips are high, particularly with the current cost of 
fuel. Trips terminated prematurely could result in unprofitable trips, 
leaving not only the owners with debt, but crewmembers without income 
and negative impacts on fishery-related businesses and communities.

[[Page 33033]]

3. Measures To Address River Herring Interactions
    Amendment 5 would establish River Herring Monitoring/Avoidance 
Areas. Amendment 5 considered two alternatives to the proposed action, 
the no action alternative and a non-selected alternative (establishing 
River Herring Protection Areas). Relative to the no action alternative, 
the proposed action and the non-selected alternative are expected to 
have a negative impact on fishery-related businesses and communities 
due to the costs associated with increased monitoring and/or area 
closures. The impact of the River Herring Areas would depend on the 
measures applied to the areas, such as increased monitoring, 
requirement that catch be brought aboard the vessels for sampling by 
observers, and closures. The proposed action, requiring 100-percent 
observer coverage in the River Herring Monitoring/Avoidance Areas, 
would likely have the largest negative impact on fishery-related 
businesses and communities, especially with the industry required to 
pay $325 per day. The non-selected option requiring all catch to be 
brought aboard would have a similar negative impact if 100-percent 
observer coverage was required. The non-selected option implementing 
either increased monitoring or closures after a river herring catch 
trigger was reached would have less impact on fishery-related 
businesses and communities than the proposed action, because the 
additional requirements would not become effective until the catch 
trigger is reached. The proposed action also includes support for the 
existing river herring bycatch avoidance program involving SFC, MA DMF, 
and SMAST. This voluntary program seeks to reduce river herring bycatch 
with real-time information on river herring distribution and herring 
fishery encounters. This aspect of the proposed action has the 
potential to mitigate some of the negative impacts of the proposed 
action by developing river herring bycatch avoidance measures in 
cooperation with the fishing industry.
4. Measures To Address Midwater Trawl Access to Groundfish Closed Areas
    Amendment 5 would expand the existing monitoring and sampling 
requirements for Groundfish Closed Area I to all herring vessels 
fishing with midwater trawl gear in the Groundfish Closed Areas. 
Amendment 5 considered three alternatives to the proposed action 
(Alternative \3/4\), the no action alternative (maintain existing 
sampling requirements for Closed Area I), Alternative 2 (removing 
existing sampling requirements for Closed Area I), and Alternative 5 
(prohibiting fishing with midwater trawl gear in the Closed Areas). 
Compared to the no action alternative and the non-selected 
alternatives, the proposed action would have the highest negative 
impact on fishery participants because of the following requirements: 
(1) 100-percent observer coverage; (2) bringing all catch aboard for 
sampling; (3) leaving the Closed Areas if catch is released before it 
has been sampled by an observer; (4) and completing a released catch 
affidavit. The midwater trawl fleet may avoid the Closed Areas if 
fishing in the Areas becomes too expensive. If observers are not 
available, the impact of the proposed action would be similar to 
Alternative 5 that would close the Closed Areas to midwater trawl 
vessels. While a portion of the herring revenue has been shown to come 
from the Closed Areas, that revenue is not expected to completely 
disappear. Instead, the midwater fleet would likely fish in other 
areas, this would be a potential additional cost for the fleet if those 
areas are less productive than the Closed Areas.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: May 30, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

0
2. In Sec.  648.2, definitions of ``Atlantic herring carrier'' and 
``Atlantic herring dealer'' are revised and definitions of ``Atlantic 
herring offload,'' ``Atlantic herring transfer at-sea'' and ``Slippage 
in the Atlantic herring fishery'' are added in alphabetical order to 
read as follows:
* * * * *
    Atlantic herring carrier means a fishing vessel that may receive 
and transport herring caught by another fishing vessel, provided the 
vessel has been issued a herring permit, does not have any gear on 
board capable of catching or processing herring, and that has on board 
a letter of authorization from the Regional Administrator to transport 
herring caught by another fishing vessel or has declared an Atlantic 
herring carrier trip via VMS consistent with the requirements at Sec.  
648.4(a)(10)(ii).
    Atlantic herring dealer means:
    (1) Any person who purchases or receives for a commercial purpose 
other than solely for transport or pumping operations any herring from 
a vessel issued a Federal Atlantic herring permit, whether offloaded 
directly from the vessel or from a shore-based pump, for any purpose 
other than for the purchaser's own use as bait;
    (2) Any person owning or operating a processing vessel that 
receives any Atlantic herring from a vessel issued a Federal Atlantic 
herring permit whether at sea or in port; or
    (3) Any person owning or operating an Atlantic herring carrier that 
sells Atlantic herring received at sea or in port from a vessel issued 
a Federal Atlantic herring permit.
* * * * *
    Atlantic herring offload means to remove, begin to remove, to pass 
over the rail, or otherwise take Atlantic herring off of or away from 
any vessel issued an Atlantic herring permit for sale to either a 
permitted at-sea Atlantic herring dealer or a permitted land-based 
Atlantic herring dealer.
* * * * *
    Atlantic herring transfer at-sea means a transfer from the hold, 
deck, codend, or purse seine of a vessel issued an Atlantic herring 
permit to another vessel for personal use as bait, to an Atlantic 
herring carrier or at-sea processor, to a permitted transshipment 
vessel, or to another permitted Atlantic herring vessel. Transfers 
between vessels engaged in pair trawling are not herring transfers at-
sea.
* * * * *
    Slippage in the Atlantic herring fishery means catch that is 
discarded prior to it being brought aboard a vessel issued an Atlantic 
herring permit and/or prior to making it available for sampling and 
inspection by a NMFS-approved observer. Slippage includes releasing 
catch from a codend or seine prior to the completion of pumping the 
catch aboard and the release of catch from a codend or seine while the 
codend or seine is in the water.
* * * * *
0
3. In Sec.  648.4, paragraphs (a)(10)(ii) and (a)(10)(v) are revised to 
read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (10) * * *
    (ii) Atlantic herring carrier. An Atlantic herring carrier must 
have been

[[Page 33034]]

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). 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, and they must be used exclusively as an Atlantic herring 
carrier vessel and 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 issued either an All Areas Limited Access Herring Permit and/or 
an Areas 2 and 3 Limited Access Herring Permit, consistent with the 
applicable possession limits for such vessels.
* * * * *
    (v) Open access herring permits. A vessel that has not been issued 
a limited access Atlantic herring permit may obtain an All Areas open 
access Atlantic 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 an Areas 2/3 open access Atlantic 
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 in paragraph (a)(5)(iii) of this 
section.
* * * * *
0
4. In Sec.  648.7, paragraph (a)(1)(iv) is added, and paragraphs and 
(b)(2)(i) introductory text, (b)(3)(i) introductory text, (b)(3)(i)(A), 
and (b)(3)(i)(C)(2) are revised to read as follows:


Sec.  648.7  Recordkeeping and reporting requirements.

    (a) * * *
    (1) * * *
    (iv) Dealer reporting requirements for Atlantic herring. In 
addition to the requirements under paragraph (a)(1)(i) of this section, 
dealers issued a permit for Atlantic herring must accurately weigh all 
fish. If dealers do not sort by species, dealers are required to 
document for each report submitted how the species composition of catch 
is determined.
* * * * *
    (b) * * *
    (2) * * *
    (i) Atlantic herring owners or operators issued an All Areas open 
access permit. The owner or operator of a vessel issued an All Areas 
open access permit to fish for herring must report catch (retained and 
discarded) of herring to 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.
* * * * *
    (3) * * *
    (i) Atlantic herring owners or operators issued a limited access 
permit or Areas 2/3 open access permit. The owner or operator of a 
vessel issued a limited access permit or Areas \2/3\ open access permit 
to fish for herring must report catches (retained and discarded) of 
herring daily via VMS, unless exempted by the Regional Administrator. 
The report shall include at least the following information, and any 
other information required by the Regional Administrator: Fishing 
Vessel Trip Report serial number; month and day herring was caught; 
pounds retained for each herring management area; and pounds discarded 
for each herring management area. Daily Atlantic herring VMS catch 
reports must be submitted in 24-hr intervals for each day and must be 
submitted by 0900 hr of the following day. Reports are required even if 
herring caught that day has not yet been landed. This report does not 
exempt the owner or operator from other applicable reporting 
requirements of this section.
    (A) The owner or operator of any vessel issued a limited access 
herring permit or Areas 2/3 open access permit must submit an Atlantic 
herring catch report via VMS each day, regardless of how much herring 
is caught (including days when no herring is caught), unless exempted 
from this requirement by the Regional Administrator.
* * * * *
    (C) * * *
    (2) A vessel that transfers herring at sea to an authorized carrier 
vessel must report all catch daily via VMS and must report all 
transfers on the Fishing Vessel Trip Report. Each time the vessel 
transfers catch to the carrier vessel is defined as a trip for the 
purposes of reporting requirements and possession allowances.
* * * * *
0
5. In Sec.  648.10, paragraphs (b)(8) and (c)(2)(i)(B) are revised, 
paragraph (c)(2)(i)(C) is removed and reserved, and paragraph (m) is 
added 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., All 
Areas Limited Access Permit, Areas 2 and 3 Limited Access Permit, 
Incidental Catch Limited Access Permit), or a vessel issued an Areas 2/
3 open access herring permit, or a vessel declaring an Atlantic herring 
carrier trip via VMS.
* * * * *
    (c) * * *
    (2) * * *
    (i) * * *
    (B) For vessels fishing with a valid NE multispecies limited access 
permit, a valid surfclam and ocean quahog permit specified at Sec.  
648.4(a)(4), an Atlantic sea scallop limited access permit, or an 
Atlantic herring permit, the vessel owner signs out of the VMS program 
for

[[Page 33035]]

a minimum period of 30 consecutive days by obtaining a valid letter of 
exemption pursuant to paragraph (c)(2)(ii) of this section, the vessel 
does not engage in any fisheries until the VMS unit is turned back on, 
and the vessel complies with all conditions and requirements of said 
letter; or
* * * * *
    (m) Atlantic herring VMS notification requirements. (1) A vessel 
issued a Limited Access Herring Permit or an Areas 2/3 Open Access 
Herring Permit intending to declare into the herring fishery or a 
vessel issued an Atlantic 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 or an Areas 2/3 
Open Access 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 hr prior to 
crossing the VMS demarcation line on their return trip to port, or, for 
a vessel that has not fished seaward of the VMS demarcation line, at 
least 6 hr prior to landing. 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
6. In Sec.  648.11, paragraphs (h)(1), (h)(3)(vi), (h)(3)(ix), 
(h)(4)(i)-(iii), (h)(5)(i), (h)(5)(ii)(B) and (C), (h)(5)(iii), 
(h)(5)(vi), (h)(5)(viii)(A), (h)(7) introductory text, (i)(2), and 
(i)(3)(ii) are revised, and paragraph (m) is added to read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (h) * * *
    (1) General. An entity seeking to provide observer services to the 
Atlantic sea scallop or Atlantic herring fishery must apply for and 
obtain approval from NMFS following submission of a complete 
application to The Observer Program Branch Chief, 25 Bernard St. Jean 
Drive, East Falmouth, MA 02536. A list of approved observer service 
providers shall be distributed to scallop and Atlantic herring vessel 
owners and shall be posted on NMFS' Web page, as specified in paragraph 
(g)(4) of this section.
* * * * *
    (3) * * *
    (vi) A description of the applicant's ability to carry out the 
responsibilities and duties of a scallop or Atlantic herring fishery 
observer services provider as set out under paragraph (h)(5) of this 
section, and the arrangements to be used.
* * * * *
    (ix) The names of its fully equipped, NMFS/NEFOP certified 
observers on staff or a list of its training candidates (with resumes) 
and a request for a NMFS/NEFOP Sea Scallop or Atlantic Herring High 
Volume Fisheries Certification Observer Training class. The NEFOP 
training has a minimum class size of eight individuals, which may be 
split among multiple vendors requesting training. Requests for training 
classes with fewer than eight individuals will be delayed until further 
requests make up the full training class size.
* * * * *
    (4) * * *
    (i) NMFS shall review and evaluate each application submitted under 
paragraphs (h)(2) and (h)(3) of this section. Issuance of approval as 
an observer provider shall be based on completeness of the application, 
and a determination by NMFS of the applicant's ability to perform the 
duties and responsibilities of a sea scallop or Atlantic herring 
fishery observer service provider, as demonstrated in the application 
information. A decision to approve or deny an application shall be made 
by NMFS within 15 days of receipt of the application by NMFS.
    (ii) If NMFS approves the application, the observer service 
provider's name will be added to the list of approved observer service 
providers found on NMFS' Web site specified in paragraph (g)(4) of this 
section, and in any outreach information to the industry. Approved 
observer service providers shall be notified in writing and provided 
with any information pertinent to its participation in the sea scallop 
or Atlantic herring fishery observer program.
    (iii) An application shall be denied if NMFS determines that the 
information provided in the application is not complete or NMFS 
concludes that the applicant does not have the ability to perform the 
duties and responsibilities of a sea scallop or Atlantic herring 
fishery observer service provider. NMFS shall notify the applicant in 
writing of any deficiencies in the application or information submitted 
in support of the application. An applicant who receives a denial of 
his or her application may present additional information, in writing, 
to rectify the deficiencies specified in the written denial, provided 
such information is submitted to NMFS within 30 days of the applicant's 
receipt of the denial notification from NMFS. In the absence of 
additional information, and after 30 days from an applicant's receipt 
of a denial, an observer provider is required to resubmit an 
application containing all of the information required under the 
application process specified in paragraph (h)(3) of this section to be 
re-considered for being added to the list of approved observer service 
providers.
    (5) * * *
    (i) An observer service provider must provide observers certified 
by NMFS/NEFOP pursuant to paragraph (i) of this section for deployment 
in the sea scallop or Atlantic herring fishery when contacted and 
contracted by the owner, operator, or vessel manager of a vessel 
fishing in the scallop or Atlantic herring fishery, unless the observer 
service provider does not have an available observer within 24 hr of 
receiving a request for an observer from a vessel owner, operator, and/
or manager, or refuses to deploy an observer on a requesting vessel for 
any of the reasons specified at paragraph (h)(5)(viii) of this section. 
An observer's first three deployments and the resulting data shall be 
immediately edited and approved after each trip, by NMFS/NEFOP, prior 
to any further deployments by that observer. If data quality is 
considered acceptable, the observer will be certified.
* * * * *
    (ii) * * *
    (B) Lodging, per diem, and any other services necessary for 
observers assigned to a scallop or Atlantic herring vessel or to attend 
a NMFS/NEFOP Sea Scallop or Atlantic Herring High Volume Fisheries 
Certification Observer Training class;
    (C) The required observer equipment, in accordance with equipment 
requirements listed on NMFS' Web site specified in paragraph (g)(4) of 
this section under the Sea Scallop and Atlantic Herring Observer 
Program, prior to any deployment and/or prior to NMFS observer 
certification training; and
* * * * *
    (iii) Observer deployment logistics. Each approved observer service 
provider must assign an available certified observer to a vessel upon 
request. Each approved observer service provider must provide for 
access by industry 24 hr per day, 7 days per week, to enable an owner, 
operator, or manager of a vessel to secure observer coverage when 
requested. The

[[Page 33036]]

telephone system must be monitored a minimum of four times daily to 
ensure rapid response to industry requests. Observer service providers 
approved under paragraph (h) of this section are required to report 
observer deployments to NMFS daily for the purpose of determining 
whether the predetermined coverage levels are being achieved in the 
scallop or Atlantic herring fishery.
* * * * *
    (vi) Observer training requirements. The following information must 
be submitted to NMFS/NEFOP at least 7 days prior to the beginning of 
the proposed training class: A list of observer candidates; observer 
candidate resumes; and a statement signed by the candidate, under 
penalty of perjury, that discloses the candidate's criminal 
convictions, if any. All observer trainees must complete a basic 
cardiopulmonary resuscitation/first aid course prior to the end of a 
NMFS/NEFOP Sea Scallop or Atlantic Herring High Volume Fisheries 
Observer Training class. NMFS may reject a candidate for training if 
the candidate does not meet the minimum qualification requirements as 
outlined by NMFS/NEFOP Minimum Eligibility Standards for observers as 
described on the NMFS/NEFOP Web site.
* * * * *
    (viii) * * *
    (A) An observer service provider may refuse to deploy an observer 
on a requesting scallop or Atlantic herring vessel if the observer 
service provider does not have an available observer within 72 hr of 
receiving a request for an observer from a scallop vessel or within 24 
hr of receiving a request for an observer from an Atlantic herring 
vessel.
* * * * *
    (7) Removal of observer service provider from the list of approved 
observer service providers. An observer provider that fails to meet the 
requirements, conditions, and responsibilities specified in paragraphs 
(h)(5) and (h)(6) of this section shall be notified by NMFS, in 
writing, that it is subject to removal from the list of approved 
observer service providers. Such notification shall specify the reasons 
for the pending removal. An observer service provider that has received 
notification that it is subject to removal from the list of approved 
observer service providers may submit written information to rebut the 
reasons for removal from the list. Such rebuttal must be submitted 
within 30 days of notification received by the observer service 
provider that the observer service provider is subject to removal and 
must be accompanied by written evidence rebutting the basis for 
removal. NMFS shall review information rebutting the pending removal 
and shall notify the observer service provider within 15 days of 
receipt of the rebuttal whether or not the removal is warranted. If no 
response to a pending removal is received by NMFS within 30 days of the 
notification of removal, the observer service provider shall be 
automatically removed from the list of approved observer service 
providers. The decision to remove the observer service provider from 
the list, either after reviewing a rebuttal, or automatically if no 
timely rebuttal is submitted, shall be the final decision of the 
Department of Commerce. Removal from the list of approved observer 
service providers does not necessarily prevent such observer service 
provider from obtaining an approval in the future if a new application 
is submitted that demonstrates that the reasons for removal are 
remedied. Certified observers under contract with an observer service 
provider that has been removed from the list of approved service 
providers must complete their assigned duties for any scallop or 
Atlantic herring trips on which the observers are deployed at the time 
the observer service provider is removed from the list of approved 
observer service providers. An observer service provider removed from 
the list of approved observer service providers is responsible for 
providing NMFS with the information required in paragraph (h)(5)(vii) 
of this section following completion of the trip. NMFS may consider, 
but is not limited to, the following in determining if an observer 
service provider may remain on the list of approved observer service 
providers:
* * * * *
    (i) * * *
    (2) Observer training. In order to be deployed on any scallop or 
Atlantic herring vessel, a candidate observer must have passed a NMFS/
NEFOP Sea Scallop or Atlantic Herring High Volume Fisheries 
Certification/Observer Training course. If a candidate fails training, 
the candidate shall be notified in writing on or before the last day of 
training. The notification will indicate the reasons the candidate 
failed the training. A candidate that fails training shall not be able 
to enroll in a subsequent class. Observer training shall include an 
observer training trip, as part of the observer's training, aboard a 
scallop or Atlantic herring vessel with a trainer. A certified 
observer's first deployment and the resulting data shall be immediately 
edited, and approved, by NMFS prior to any further deployments of that 
observer.
    (3) * * *
    (ii) Be physically and mentally capable of carrying out the 
responsibilities of an observer on board scallop or Atlantic herring 
vessels, pursuant to standards established by NMFS. Such standards are 
available from NMFS/NEFOP Web site specified in paragraph (g)(4) of 
this section and shall be provided to each approved observer service 
provider;
* * * * *
    (m) Atlantic herring observer coverage. (1) Pre-trip notification. 
At least 48 hr 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 an Areas \2/3\ Open Access 
Herring Permit on a declared herring trip or a vessel issued an All 
Areas Open Access 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 fishing in the Northeast Multispecies Closed 
Areas, Closed Area I, Closed Area II, Nantucket Lightship Closed Area, 
Cashes Ledge Closure Area, and Western GOM Closure Area, as defined in 
Sec.  648.81(a) through (e), respectively, 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 hr prior to vessel departure 
from port.
    (2) When vessels issued limited access herring permits are working 
cooperatively in the Atlantic herring fishery, including pair trawling, 
purse seining, and transferring herring at-sea, each vessel must 
provide to observers, when requested, the estimated weight of each 
species brought on board or released on each tow.
    (3) Sampling requirements. In addition to the requirements at 
paragraphs (d)(1) through (7) of this section, an owner or operator of 
a vessel issued a Limited Access Herring Permit on which a NMFS-
approved observers is embarked must provide observers:
    (i) A safe sampling station adjacent to the fish deck, including: A 
safety harness, if footing is compromised and

[[Page 33037]]

grating systems are high above the deck; a safe method to obtain 
samples; and a storage space for baskets and sampling gear.
    (ii) Reasonable assistance to enable observers to carry out their 
duties, including but not limited to assistance with: Obtaining and 
sorting samples; measuring decks, codends, and holding bins; collecting 
bycatch when requested by the observers; and collecting and carrying 
baskets of fish when requested by the observers.
    (iii) Advance notice when pumping will be starting; when sampling 
of the catch may begin; and when pumping is coming to an end.
    (iv) Visual access to net/codend or purse seine bunt and any of its 
contents after pumping has ended and before the pump is removed from 
the net. On trawl vessels, the codend including any remaining contents 
should be brought on board. If bringing the codend on board is not 
possible, the vessel operator must ensure that the observer can see the 
codend and its contents as clearly as possible before releasing its 
contents.
    (4) Measures to address slippage. (i) No vessel issued a limited 
access Atlantic herring permit and carrying a NMFS-approved observer 
may release fish from the net, transfer fish to another vessel that is 
not carrying a NMFS-approved observer, or otherwise discard fish at 
sea, unless the fish has first been brought on board the vessel and 
made available for sampling and inspection by the observer, except in 
the following circumstances:
    (A) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (B) A mechanical failure precludes bringing some or all of the 
catch on board the vessel for inspection; or,
    (C) The vessel operator determines that pumping becomes impossible 
as a result of spiny dogfish clogging the pump intake. The vessel 
operator shall take reasonable measures, such as strapping and 
splitting the net, to remove all fish which can be pumped from the net 
prior to release.
    (ii) Vessels may make test tows without pumping catch on board if 
the net is re-set without releasing its contents provided that all 
catch from test tows is available to the observer to sample when the 
next tow is brought on board for sampling.
    (iii) If fish are released prior to being brought on board the 
vessel due to any of the above exceptions, the vessel operator must:
    (A) Complete and sign a Released Catch Affidavit detailing the 
vessel name and permit number; the VTR serial number; where, when, and 
for what reason the catch was released; the estimated weight of each 
species brought on board or released on that tow. A completed affidavit 
must be submitted to NMFS within 48 hr of the end of the trip.
    (5) The following observer coverage requirements are effective 1 
year after the effective date of Amendment 5.
    (i) Vessels issued an All Areas Limited Access Herring Permit or an 
Areas \2/3\ Limited Access Herring Permit may not fish for, take, 
retain, possess, or land Atlantic herring without carrying a NMFS-
approved observer, unless the vessel owner, operator, and/or manager 
has been notified that the vessel has received a waiver of this 
observer requirement for that trip pursuant to paragraph (m)(5)(vi) of 
this section.
    (ii) At least 48 hr 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 must provide notice to NMFS if it 
intends to fish in the River Herring Monitoring/Avoidance Areas, 
described at Sec.  648.200(f)(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 hr prior to vessel departure from 
port.
    (iii) NMFS shall notify the vessel owner, operator, or vessel 
manager whether the vessel must carry an observer within 24 hr of the 
vessel owner's, operator's, or vessel manager's notification of the 
prospective Atlantic herring trip pursuant to paragraph (m)(1) of this 
section.
    (iv) An owner, operator, or manager of a vessel required to carry 
an observer under paragraph (m)(5)(i) of this section must arrange for 
carrying an observer certified through the Atlantic Herring High Volume 
Fisheries observer training class operated by the NMFS/NEFOP from an 
observer service provider approved by NMFS under paragraph (h) of this 
section or from a state agency. The owner, operator, or vessel manager 
of a vessel selected to carry an observer must contact the observer 
service provider and must provide at least 48-hr notice in advance of 
the fishing trip for the provider to arrange for observer deployment 
for the specified trip. The observer service provider will notify the 
vessel owner, operator, or manager within 24 hr whether they have an 
available observer. A list of approved observer service providers shall 
be posted on the NMFS/NEFOP Web site at http://www.nefsc.noaa.gov/femad/fsb/.
    (v) An owner, operator, or vessel manager of a vessel that cannot 
procure a certified observer within 24 hr of the advance notification 
to the provider due to the unavailability of an observer may request a 
waiver from NMFS/NEFOP from the requirement for observer coverage for 
that trip, but only if the owner, operator, or vessel manager has 
contacted all of the available observer service providers to secure 
observer coverage and no observer is available.
    (vi) NMFS/NEFOP shall issue such a waiver within 12 hr, if the 
conditions of paragraph (m)(5) of this section are met. A vessel may 
not begin the trip without being issued a waiver. All waivers for 
observer coverage shall be issued to the vessel by VMS so a vessel may 
have on board a verification of the waiver.
    (vii) Vessels issued an All Areas Limited Access Herring Permit or 
an Areas 2/3 Limited Access Herring Permit may not fish for, take, 
retain, possess, or land Atlantic herring from within the River Herring 
Monitoring/Avoidance Areas, described at Sec.  648.200(f)(4) without 
carrying a NMFS-approved observer.
    (vii) Owners of vessels issued an All Areas Limited Access Herring 
Permit or an Areas 2/3 Limited Access Herring Permit must pay observer 
service providers $325 per sea day.
0
7. In Sec.  648.13, paragraph (f)(2)(i) is revised to read as follows:


Sec.  648.13  Transfers at sea.

* * * * *
    (f) * * *
    (2) * * *
    (i) A vessel issued an Atlantic herring permit may operate as a 
herring carrier vessel and receive herring provided it either is issued 
a carrier vessel letter of authorization and complies with the terms of 
that authorization, as specified in Sec.  648.4(a)(10)(ii), 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(l)(1).
* * * * *
0
8. In Sec.  648.14, paragraphs (r)(1)(ii)(C) and (r)(1)(vii)(B) are 
revised, and paragraphs (r)(1)(viii)(C) and (D) and (r)(2)(viii) 
through (xiii) are added to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (ii) * * *
    (C) Possess or land more herring than is allowed by the vessel's 
Atlantic herring permit or the most restrictive herring possession 
limit associated with the permits issued to vessels working

[[Page 33038]]

cooperatively, including vessels pair trawling, purse seining, or 
transferring herring at-sea.
* * * * *
    (vii) * * *
    (B) Receive Atlantic herring at sea in or from the EEZ, solely for 
transport, without an Atlantic herring carrier letter of authorization 
from the Regional Administrator or having declared an Atlantic herring 
carrier trip via VMS consistent with the requirements at Sec.  
648.4(a)(10)(ii).
* * * * *
    (viii) * * *
    (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 an Areas 2/3 Open Access Herring Permit or is intending to act 
as an Atlantic herring carrier.
    (D) Fail to notify NMFS Office of Law Enforcement through VMS of 
the time and place of offloading at least 6 hr prior to crossing the 
VMS demarcation line on their return trip to port, or, for a vessel 
that has not fished seaward of the VMS demarcation line, at least of 6 
hr prior to landing, if a vessel has been issued a Limited Access 
Herring Permit or issued an Areas \2/3\ Open Access Herring Permit or 
has declared an Atlantic herring carrier trip via VMS.
* * * * *
    (2) * * *
    (viii) Fish with midwater trawl gear in any Northeast Multispecies 
Closed Area, as defined in Sec.  648.81(a) through (e), without a NMFS-
approved observer on board, if the vessel has been issued an Atlantic 
herring permit.
    (ix) Release fish from the codend of the net, transfer fish to 
another vessel that is not carrying a NMFS-approved observer, or 
otherwise discard fish at sea before bringing the fish aboard and 
making it available to the observer for sampling, unless subject to one 
of the exemptions defined 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) through (e).
    (x) Fail to immediately leave the Northeast Multispecies Closed 
Areas and complete, sign, and submit an affidavit as required by Sec.  
648.202(b)(2) and (4).
    (xi) Release fish from the net, transfer fish to another vessel 
that is not carrying a NMFS-approved observer, or otherwise discard 
fish at sea, unless the fish has first been brought aboard the vessel 
and made available for sampling and inspection by the observer, unless 
subject to one of the exemptions defined at defined at Sec.  
648.11(m)(4)(i).
    (xii) Fail to complete, sign, and submit an affidavit if fish are 
released pursuant to the requirements at Sec.  648.11(m)(4)(iii)(A).
    (xiii) Fail to immediately return to port after slipping catch 
while carrying a NMFS-approved observer when fishing with a particular 
gear type in a particular herring management area after NMFS has 
determined that the slippage cap for that particular gear type and 
management area has been reached, pursuant to Sec.  648.203(c).
* * * * *
0
9. In Sec.  648.200, paragraph (f)(4) is added and paragraph (g) is 
revised to read as follows:


Sec.  648.200  Specifications.

* * * * *
    (f) * * *
    (4) River Herring Monitoring/Avoidance Areas.
    (i) January-February River Herring Monitoring/Avoidance Areas. The 
January-February River Herring Monitoring/Avoidance Areas include 4 
sub-areas. Each sub-area includes the waters bounded by the coordinates 
below, connected in the order listed by straight lines unless otherwise 
noted.
    (A) January-February River Herring Monitoring/Avoidance Sub-Area 1.
    (1) 43[deg]00' N Lat., 71[deg]00' W Long.;
    (2) 43[deg]00' N Lat.,70[deg]30' W Long.;
    (3) 42[deg]30' N Lat.,70[deg]30' W Long.;
    (4) 42[deg]30' N Lat.,71[deg]00' W Long.; and
    (5) 43[deg]00' N Lat., 71[deg]00' W Long.
    (B) January-February River Herring Monitoring/Avoidance Sub-Area 2.
    (1) 42[deg]00' N Lat., 70[deg]00' W Long.;
    (2) 42[deg]00' N Lat., 69[deg]30' W Long.;
    (3) 41[deg]30' N Lat., 69[deg]30' W Long,;
    (4) 41[deg]30' N Lat., 70[deg]00' W Long.; and
    (5) 42[deg]00' N Lat., 70[deg]00' W Long.
    (C) January-February River Herring Monitoring/Avoidance Sub-Area 3.
    (1) 41[deg]30' N Lat., 72[deg]00' W Long.;
    (2) 41[deg]30' N Lat., 71[deg]00' W Long.;
    (3) 40[deg]30' N Lat., 71[deg]00' W Long.;
    (4) 40[deg]30' N Lat., 72[deg]30' W Long.;
    (5) The southernmost shoreline of Long Island, New York, 
72[deg]30'W Long.;
    (6) The north-facing shoreline of Long Island, New York, 
72[deg]00'W Long.; and
    (7) 41[deg]30' N Lat., 72[deg]00' W Long.
    (8) Points 5 and 6 are connected following the coastline of the 
south fork of eastern Long Island, New York.
    (D) January-February River Herring Monitoring/Avoidance Sub-Area 4
    (1) 40[deg]30' N Lat., 74[deg]00' W Long.;
    (2) 40[deg]30' N Lat., 72[deg]30' W Long.;
    (3) 40[deg]00' N Lat., 72[deg]30' W Long.;
    (4) 40[deg]00' N Lat., 72[deg]00' W Long.;
    (5) 39[deg]30' N Lat., 72[deg]00' W Long.;
    (6) 39[deg]30' N Lat., 73[deg]30' W Long.;
    (7) 40[deg]00' N Lat., 73[deg]30' W Long.;
    (8) 40[deg]00' N Lat., 74[deg]00' W Long.; and
    (9) 40[deg]30' N Lat., 74[deg]00' N Long.;
    (10) Points 8 and 9 are connected following 74[deg]W Long. and the 
easternmost shoreline of New Jersey, whichever is furthest east.
    (ii) March-April River Herring Monitoring/Avoidance Areas. The 
March-April River Herring Monitoring/Avoidance Areas include 5 sub-
areas. Each sub-area includes the waters bounded by the coordinates 
below, connected in the order listed by straight lines unless otherwise 
noted.
    (A) March-April River Herring Monitoring/Avoidance Sub-Area 1.
    (1) 43[deg]00' N Lat., 71[deg]00' W Long.;
    (2) 43[deg]00' N Lat., 70[deg]30' W Long.;
    (3) 42[deg]30' N Lat., 70[deg]30' W Long.;
    (4) 42[deg]30' N Lat., 71[deg]00' W Long.; and
    (5) 43[deg]00' N Lat., 71[deg]00' W Long.
    (B) March-April River Herring Monitoring/Avoidance Sub-Area 2.
    (1) 42[deg]00' N Lat., 70[deg]00' W Long.;
    (2) 42[deg]00' N Lat., 69[deg]30' W Long.;
    (3) 41[deg]30' N Lat., 69[deg]30' W Long.;
    (4) 41[deg]30' N Lat., 70[deg]00' W Long.; and
    (5) 42[deg]00' N Lat., 70[deg]00' W Long.
    (C) March-April River Herring Monitoring/Avoidance Sub-Area 3.
    (1) 41[deg]00' N Lat., The easternmost shoreline of Long Island, 
New York;
    (2) 41[deg]00' N Lat., 71[deg]00' W Long.;
    (3) 40[deg]30' N Lat., 71[deg]00' W Long.;
    (4) 40[deg]30' N Lat., 71[deg]30' W Long.;
    (5) 40[deg]00' N Lat., 71[deg]30' W Long.;
    (6) 40[deg]00' N Lat., 72[deg]30' W Long.;
    (7) The southernmost shoreline of Long Island, New York, 
72[deg]30'W Long.; and
    (8) 41[deg]00' N Lat., The easternmost shoreline of Long Island, 
New York.
    (9) Points 7 and 8 are connected following the southern shoreline 
of Long Island, New York.
    (D) March-April River Herring Monitoring/Avoidance Sub-Area 4.
    (1) 40[deg]00' N Lat., 73[deg]30' W Long.;
    (2) 40[deg]00' N Lat., 72[deg]30' W Long.;
    (3) 39[deg]00' N Lat., 72[deg]30' W Long.;
    (4) 39[deg]00' N Lat., 73[deg]30' W Long.; and
    (5) 40[deg]00' N Lat., 73[deg]30' W Long.
    (E) March-April River Herring Monitoring/Avoidance Sub-Area 5.
    (1) 40[deg]30' N Lat., 74[deg]00' W Long.;
    (2) 40[deg]30' N Lat., 73[deg]30' W Long.;
    (3) 40[deg]00' N Lat., 73[deg]30' W Long.;
    (4) 40[deg]00' N Lat., 74[deg]00' W Long.; and
    (5) 40[deg]30' N Lat., 74[deg]00' W Long.
    (6) Points 4 and 5 are connected following 74[deg]W Long. and the 
easternmost shoreline of New Jersey, whichever is furthest east.
    (iii) May-June River Herring Monitoring/Avoidance Areas. The May-
June River Herring Monitoring/

[[Page 33039]]

Avoidance Areas include 2 sub-areas. Each sub-area includes the waters 
bounded by the coordinates below, connected in the order listed by 
straight lines unless otherwise noted.
    (A) May-June River Herring Monitoring/Avoidance Sub-Area 1.
    (1) 44[deg]00' N Lat., 69[deg]30' W Long.;
    (2) 44[deg]00' N Lat., 69[deg]00' W Long.;
    (3) 43[deg]30' N Lat., 69[deg]00' W Long.;
    (4) 43[deg]30' N Lat., 69[deg]30' W Long.; and
    (5) 44[deg]00' N Lat., 69[deg]30' W Long.
    (B) May-June River Herring Monitoring/Avoidance Sub-Area 2.
    (1) 42[deg]00' N Lat., 70[deg]00' W Long.;
    (2) 42[deg]00' N Lat., 69[deg]30' W Long.;
    (3) 41[deg]30' N Lat., 69[deg]30' W Long.;
    (4) 41[deg]30' N Lat., 70[deg]00' W Long.; and
    (5) 42[deg]00' N Lat., 70[deg]00' W Long.
    (iv) July-August River Herring Monitoring/Avoidance Areas. The 
July-August River Herring Monitoring/Avoidance Areas include 2 sub-
areas. Each sub-area includes the waters bounded by the coordinates 
below, connected in the order listed by straight lines unless otherwise 
noted.
    (A) July-August River Herring Monitoring/Avoidance Sub-Area 1.
    (1) 44[deg]00' N Lat., 70[deg]00' W Long.;
    (2) 44[deg]00' N Lat., 69[deg]30' W Long.;
    (3) 43[deg]00' N Lat., 69[deg]30' W Long.;
    (4) 43[deg]00' N Lat., 70[deg]00' W Long.; and
    (5) 44[deg]00' N Lat., 70[deg]00' W Long.
    (6) The boundary from Points 4 to 5 excludes the portions Maquoit 
and Middle Bays east of 70[deg]00'W Long.
    (B) July-August River Herring Monitoring/Avoidance Sub-Area 2.
    (1) 44[deg]00' N Lat., 69[deg]00' W Long.;
    (2) 44[deg]00' N Lat., 68[deg]30' W Long.;
    (3) 43[deg]30' N Lat., 68[deg]30' W Long.;
    (4) 43[deg]30' N Lat., 69[deg]00' W Long.; and
    (5) 44[deg]00' N Lat., 69[deg]00' W Long.
    (v) September-October River Herring Monitoring/Avoidance Areas. The 
September-October River Herring Monitoring/Avoidance Areas include 2 
sub-areas. Each sub-area includes the waters bounded by the coordinates 
below, connected in the order listed by straight lines unless otherwise 
noted.
    (A) September-October River Herring Monitoring/Avoidance Sub-Area 
1.
    (1) 44[deg]30' N Lat., 68[deg]00' W Long.;
    (2) 44[deg]30' N Lat., 67[deg]00' W Long.;
    (3) 44[deg]00' N Lat., 67[deg]00' W Long.;
    (4) 44[deg]00' N Lat., 68[deg]00' W Long.; and
    (5) 44[deg]30' N Lat., 68[deg]00' W Long.
    (B) September-October River Herring Monitoring/Avoidance Sub-Area 
2.
    (1) 43[deg]00' N Lat., 71[deg]00' W Long.;
    (2) 43[deg]00' N Lat., 70[deg]30' W Long.;
    (3) 42[deg]30' N Lat., 70[deg]30' W Long.;
    (4) 42[deg]30' N Lat., 71[deg]00' W Long.; and
    (5) 43[deg]00' N Lat., 71[deg]00' W Long.
    (vi) November-December River Herring Monitoring/Avoidance Areas. 
The November-December River Herring Monitoring/Avoidance Areas include 
2 sub-areas. Each sub-area includes the waters bounded by the 
coordinates below, connected in the order listed by straight lines 
unless otherwise noted.
    (A) November-December River Herring Monitoring/Avoidance Sub-Area 
1.
    (1) 43[deg]00' N Lat., 71[deg]00' W Long.;
    (2) 43[deg]00' N Lat., 70[deg]00' W Long.;
    (3) 42[deg]00' N Lat., 70[deg]00' W Long.;
    (4) 42[deg]00' N Lat., 69[deg]30' W Long.;
    (5) 41[deg]30' N Lat., 69[deg]30' W Long.;
    (6) 41[deg]30' N Lat., 70[deg]00' W Long.;
    (7) The south-facing shoreline of Cape Cod, MA, 70[deg]00' W Long.;
    (8) 42[deg]00' N Lat., The west-facing shoreline of Cape Cod, MA 
Long.;
    (9) 42[deg]00' N Lat., 70[deg]30' W Long.;
    (10) 42[deg]30' N Lat., 70[deg]30' W Long.;
    (11) 42[deg]30' N Lat., 71[deg]00' W Long.; and
    (12) 43[deg]00' N Lat., 71[deg]00' W Long.
    (13) Points 7 and 8 are connected following the coastline of Cape 
Cod, MA.
    (B) November-December River Herring Monitoring/Avoidance Sub-Area 
2.
    (1) 41[deg]30' N Lat., 72[deg]00' W Long.;
    (2) 41[deg]30' N Lat., 70[deg]00' W Long.;
    (3) 40[deg]30' N Lat., 70[deg]00' W Long.;
    (4) 40[deg]30' N Lat., 70[deg]30' W Long.;
    (5) 41[deg]00' N Lat., 70[deg]30' W Long.;
    (6) 41[deg]00' N Lat., 72[deg]00' W Long.; and
    (7) 41[deg]30' N Lat., 72[deg]00' W Long.
    (g) All aspects of the following measures can be modified through 
the specifications process:
    (1) AMs;
    (2) Possession limits;
    (3) River Herring Monitoring/Avoidance Areas;
    (4) River herring catch caps; and
    (5) Provisions related to industry-funded catch monitoring program 
(including cost sharing provisions, service provider requirements, 
waivers).
0
10. In Sec.  648.202, paragraph (b) is added to read as follows:


Sec.  648.202  Season and area restrictions.

* * * * *
    (b) Fishing in Northeast Multispecies Closed Areas. (1) No vessel 
issued an Atlantic herring permit and fishing with midwater trawl gear, 
may fish for, possess or land fish in or from the Closed Areas, 
including Closed Area I, Closed Area II, Nantucket Lightship Closed 
Area, Cashes Ledge Closure Area, Western GOM Closure Area, as defined 
in Sec.  648.81(a) through (e), respectively, unless it has declared 
first its intent to fish in the Closed Areas as required by Sec.  
648.11(m)(1), and is carrying onboard a NMFS-approved observer.
    (2) No vessel issued an Atlantic herring permit and fishing with 
midwater trawl gear, when fishing any part of a midwater trawl tow in 
the Closed Areas, may release fish from the codend of the net, transfer 
fish to another vessel that is not carrying a NMFS-approved observer, 
or otherwise discard fish at sea, unless the fish has first been 
brought aboard the vessel and made available for sampling and 
inspection by the observer, except in the following circumstances:
    (i) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (ii) A mechanical failure precludes bringing some or all of the 
catch on board the vessel for inspection; or,
    (iii) The vessel operator determines that pumping becomes 
impossible as a result of spiny dogfish clogging the pump intake. The 
vessel operator shall take reasonable measures, such as strapping and 
splitting the net, to remove all fish which can be pumped from the net 
prior to release.
    (3) Vessels may make test tows without pumping catch on board if 
the net is re-set without releasing its contents provided that all 
catch from test tows is available to the observer to sample when the 
next tow is brought on board.
    (4) If fish are released prior to being brought aboard the vessel 
due to any of the above exceptions, the vessel operator must:
    (i) Stop fishing and immediately exit the Closed Areas. Once the 
vessel has exited the Closed Areas, it may continue to fish, but may 
not fish inside the Closed Areas for the remainder of that trip.
    (ii) Complete and sign a Midwater Trawl Released Codend Affidavit 
detailing the vessel name and permit number; the VTR serial number; 
where, when, and for what reason the catch was released; the estimated 
weight of each species brought on board or released on that tow. A 
completed affidavit must be submitted to NMFS within 48 hr of the end 
of the trip.
0
11. In Sec.  648.203, paragraph (c) is added to read as follows:


Sec.  648.203  Gear restrictions.

* * * * *
    (c) Slippage cap. If NMFS determines that there have been 10 
slippage events in a management area by gear type, including midwater 
trawl, bottom trawl, or purse seine, by vessels issued limited access 
Atlantic herring permits and carrying NMFS-approved observers, limited 
access vessels using that particular gear type that subsequently slip 
catch in that management area while carrying a NMFS-approved

[[Page 33040]]

observer must immediately stop fishing and return to port after each 
slippage event. NMFS shall implement these restrictions in accordance 
with the APA.
0
12. In Sec.  648.204, paragraph (b) is revised to read as follows:


Sec.  648.204  Possession restrictions.

* * * * *
    (b) Each vessel working cooperatively in the herring fishery, 
including vessels pair trawling, purse seining, and transferring 
herring at-sea, must be issued a valid herring permit to fish for, 
possess, or land Atlantic herring and are subject to the most 
restrictive herring possession limit associated with the permits issued 
to vessels working cooperatively.
0
13. Section 648.205 is revised to read as follows:


Sec.  648.205  VMS requirements.

    The owner or operator of any limited access herring vessel or 
vessel issued an Areas 2/3 Open Access 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.)
0
14. In Sec.  648.206, paragraphs (b)(30) and (b)(31) are revised, and 
paragraphs (b)(32) through (39) are added to read as follows:


Sec.  648.206  Framework provisions.

* * * * *
    (b) * * *
    (30) AMs;
    (31) Changes to vessel trip notification and declaration 
requirements;
    (32) Adjustments to measures to address net slippage, including 
sampling requirements, exceptions for trip termination threshold, trip 
termination threshold amounts/divisions by area and/or gear type;
    (33) Adjustments to requirements for observer coverage levels;
    (34) Provisions related to industry-funded catch monitoring program 
(including cost allocation provisions, service provider requirements, 
waivers);
    (35) River Herring Monitoring/Avoidance Areas;
    (36) Provisions for river herring incidental catch avoidance 
program, including adjustments to the mechanism and process for 
tracking fleet activity, reporting incidental catch events, compiling 
data, and notifying the fleet of changes to the area(s); the 
definition/duration of `test tows,' if test tows would be utilized to 
determine the extent of river herring incidental catch in a particular 
area(s); the threshold for river herring incidental catch that would 
trigger the need for vessels to be alerted and move out of the area(s); 
the distance that vessels would be required to move from the area(s); 
and the time that vessels would be required to remain out of the 
area(s).
    (37) Changes to criteria/provisions for access to Northeast 
Multispecies Closed Areas;
    (38) River herring catch caps; and
    (39) Any other measure currently included in the FMP.
* * * * *
[FR Doc. 2013-13172 Filed 5-31-13; 8:45 am]
BILLING CODE 3510-22-P