[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Rules and Regulations]
[Pages 8786-8817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03179]



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Vol. 79

Thursday,

No. 30

February 13, 2014

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 648





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

  Federal Register / Vol. 79 , No. 30 / Thursday, February 13, 2014 / 
Rules and Regulations  

[[Page 8786]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket 100203070-4003-02]
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: Final rule.

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SUMMARY: This rule implements approved 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 approved measures 
include: Revising fishery management program provisions (permitting 
provisions, vessel notification requirements, measures to address 
herring carrier vessels, regulatory definitions, and requirements for 
vessel monitoring systems); expanding vessel requirements to maximize 
observers' ability to sample catch at-sea; minimizing the discarding of 
unsampled catch (commonly known as slippage); addressing the incidental 
catch and bycatch of river herring; and revising the criteria for 
midwater trawl vessels' access to Northeast multispecies (groundfish) 
closed areas. NMFS disapproved three measures in Amendment 5. These 
measures included: A dealer reporting requirement; a cap that, if 
achieved, would require vessels discarding catch before it had been 
sampled by observers (known as slippage) to return to port; and a 
requirement for 100-percent observer coverage on Category A and B 
vessels, coupled with an industry contribution of $325 per day toward 
observer costs. NMFS disapproved these three measures because it 
believes they are inconsistent with the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) and other applicable law. 
Therefore, these three measures are not implemented in this action.

DATES: Effective March 17, 2014.

ADDRESSES: Copies of supporting documents used by the Council, 
including the Final Environmental Impact Statement (FEIS) 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 FEIS/RIR/IRFA is also accessible via the internet at http://www.nero.nmfs.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to NMFS, Northeast Regional Office and by 
email to [email protected], or fax to 202-395-7285.
    Information on the Federal Vessel Monitoring System (VMS) 
reimbursement program is available from the Pacific States Marine 
Fisheries Commission, 205 SE. Spokane Street, Suite 100, Portland, OR 
97202 (Web site: http://www.psmfc.org/, telephone number: 503-595-3100, 
fax number: 503-595- 3232).

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 
MSA, and develop a sector allocation process or other limited access 
privilege program for the herring 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 
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 (DEIS) that ended on June 4, 
2012, the Council adopted Amendment 5 on June 20, 2012. The Council 
submitted Amendment 5 to 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. A Notice of 
Availability (NOA) for Amendment 5, as submitted by the Council for 
review by the Secretary of Commerce (Secretary), was published on April 
22, 2013 (78 FR 23733), with a comment period ending June 21, 2013. A 
proposed rule for Amendment 5 was published on June 3, 2013 (78 FR 
33020), with a comment period ending July 18, 2013. On July 18, 2013, 
NMFS partially approved Amendment 5 on behalf of the Secretary. NMFS 
sent a letter to the Council on July 19, 2013, informing it of the 
partial approval of 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, three measures in Amendment 5 lacked 
adequate rationale or development by the Council, and NMFS had utility 
and legal concerns with the implementation of 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 (known as slippage) 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

[[Page 8787]]

potential concerns with these measures throughout the development of 
this amendment, but these measures have strong support from some 
stakeholders. The proposed rule for Amendment 5 described potential 
concerns about these measures' consistency with the MSA and other 
applicable law. After review of public comment, NMFS determined these 
three measures must be disapproved because they were inconsistent with 
the MSA and other applicable law. On September 20, 2013, NMFS sent a 
letter to the Council with recommendations on how these measures could 
be revised to address NMFS's concerns. If the Council chooses to revise 
these measures, NMFS will work with the Council to design effective 
measures to help improve management of the herring fishery. Revised 
measures could be addressed in upcoming Council actions. Whether that 
action would be an amendment or framework would depend on the scope of 
the revised measure.

Approved Measures

    This final rule implements approved management measures that:
     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;
     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;
     Establish an advance notice requirement for the observer 
pre-trip notification at 48 hr;
     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 (known as 
slippage);
     Establish a framework provision for a river herring catch 
cap, such that a river herring catch cap may be implemented in a future 
framework;
     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.

1. Adjustments to the Fishery Management Program

    Amendment 5 revises several existing fishery management provisions, 
such as regulatory definitions, reporting requirements, and VMS 
requirements, and establishes new provisions, such as additional 
herring permits and increased operational flexibility for herring 
carriers, to better administer the herring fishery.
Definitions
    Amendment 5 revises the regulatory definitions of transfer at-sea 
and offload to clarify these activities for the herring fishery. This 
action defines 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. This action also defines a herring 
offload as removing fish 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 revises 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 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, cancellation 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 
and certain groundfish species, including haddock and up to 100 lb (45 
kg) of other regulated groundfish species (as specified at Sec.  
648.86(a)(3) and (k)).
    This action allows 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 or groundfish, including haddock and up to 
100 lb (45 kg) of other regulated groundfish species (as specified at 
Sec.  648.86(a)(3) and (k)). Consistent with other Northeast Region VMS 
requirements, once a vessel declares a herring carrier trip via VMS, it 
is bound to the VMS operating requirements, specified at Sec.  648.10, 
for the remainder of the fishing year. By declaring a herring carrier 
trip via VMS, a vessel would not be 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 or groundfish. 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

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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. This 
action establishes 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 requires compliance with Federal dealer reporting 
requirements. Vessels that have been issued both an At-Sea Atlantic 
Herring Dealer Permit and a Federal fishing permit would be required to 
fulfill the reporting requirements 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 which NMFS cannot match to dealer reports; 
thereby improving catch monitoring in the herring fishery.
    Amendment 5 exempts herring carriers from the VTR requirements 
associated with their vessel permits while the vessel is operating in 
accordance with the herring carrier permit requirements. NMFS requires 
vessels issued herring permits to submit weekly VTRs to NMFS. However, 
dealers have incorrectly attributed catch to herring carrier vessels, 
rather than correctly attributing 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 to minimize data 
mismatches between vessel and dealer reports, this action exempts 
herring carriers from the VTR requirement associated with their herring 
permit when they are enrolled as a herring carrier with an LOA or by 
declaring a herring carrier trip via VMS. 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 establishes a new open access herring permit for 
vessels engaged in the mackerel fishery and re-names the current open 
access herring permit. The permit formerly known as the 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 this open access herring permit remain the same, but 
this action renames this permit as the All Areas Open Access Herring 
Permit (Category D), and creates a new open access permit for mackerel 
fishery participants fishing in herring management Areas 2 and 3 called 
the Areas 2/3 Open Access Permit (Category E).
    The new Areas 2/3 Open Access Herring Permit (Category E) allows 
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 that have been issued a limited access mackerel permit, are 
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, this action 
establishes notification and reporting requirements for the Category E 
permit that are consistent with the requirements for Category C 
vessels, including the requirement to possess and maintain a VMS, VMS 
activity declaration and pre-landing requirements, and catch reporting 
requirements (i.e., submission of daily VMS catch reports and weekly 
VTRs). Reimbursement for VMS units is available on a first come, first 
serve, basis until the funds are depleted. More information on the VMS 
reimbursement program is available from the Pacific States Marine 
Fisheries Commission (see ADDRESSES) and from the NMFS VMS Support 
Center, which can be reached at 888-219-9228.
    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 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 did not propose, and thus does not 
extend, 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 expands and modifies 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. This action expands 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 are 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

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scheduling. The list of information that must be provided to NMFS as 
part of this pre-trip observer notification remains the same as before 
this change and is described in the regulations. Vessels with herring 
permits currently contact NMFS via phone; the phone number to 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 is 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 vessels have an on-board verification of either the observer 
selection or waiver. However, a vessel issued a Category A or B permit 
on a declared herring trip; or a vessel issued any herring permit 
fishing with midwater trawl gear in Herring Management Areas 1A, 1B, 
and/or 3; is still subject to the more restrictive 72-hr notification 
associated with the groundfish midwater trawl or purse seine gear 
exempted fisheries specified at Sec.  648.80(d)-(e).
    Vessels with limited access herring permits are currently subject 
to a VMS activity declaration. Amendment 5 expands that VMS activity 
declaration requirement and adds 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 
Category C permits fishing with midwater trawl gear in Areas 1A, 1B, 
and/or 3; are subject to a pre-landing VMS notification requirement. 
This action expands 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 landing or, if fishing ends less than 6 hr 
before landing, as soon as the vessel stops catching fish.
    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 power 
down their VMS in port must submit a VMS activity declaration prior to 
leaving port. This action prohibits vessels with herring permits from 
powering down their VMS when in port, unless specifically authorized by 
NMFS. If a vessel will be out of the water for more than 72 hr, a 
vessel owner must request a letter of exemption (LOE) from NMFS to 
power down its VMS. The application for a ``VMS Power Down Exemption 
Request'' is available on the NMFS Northeast Regional Office Web site 
(see ADDRESSES). Herring vessels are prohibited from powering down 
their VMS until they have received an LOE from NMFS. Additionally, a 
vessel owner can sign a herring vessel out of the VMS program for a 
minimum of 30 days by requesting and obtaining an LOE from NMFS. When a 
VMS unit is powered down, consistent with an LOE, that vessel is 
prohibited from leaving the dock until the VMS unit is powered back up 
and a VMS activity declaration is sent. This action prohibits herring 
vessels from powering down 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 be issued herring 
permits, and their harvest is limited by the most restrictive 
possession limit associated with those permits. Amendment 5 expands 
this restriction by requiring that 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 is 
subject to the most restrictive possession limit associated with the 
permits issued to those vessels working cooperatively. This measure 
establishes consistent requirements for vessels working cooperatively 
in the herring fishery and is intended to improve enforcement of 
herring possession limits for multi-vessel operations.

2. Adjustments to At-Sea Catch Monitoring

    Two of the primary goals of Amendment 5 are to improve catch 
monitoring in the herring fishery and minimize bycatch and bycatch 
mortality to the extent practicable. Amendment 5 revises vessel 
requirements to assist observers sampling at-sea and establishes new 
measures to minimize the discarding of catch before it has been sampled 
by an observer.
    Northeast fishery 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. This action expands 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, this action requires 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. NMFS expects 
these measures to help improve at-sea catch monitoring in the herring 
fishery by enhancing the observer's ability to collect quality data in 
a safe and efficient manner.
    This action, with limited exceptions, requires 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 slippage. 
Discards that occur after catch has been brought on board and sorted 
are also not considered slippage. 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.
    This action allows catch to be slipped if: (1) Bringing catch 
aboard

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compromises safety; (2) mechanical failure prevents the catch from 
being brought aboard; or (3) spiny dogfish clog the pump and prevent 
the catch from being pumped aboard. If catch is slipped, the vessel 
operator is required to complete a released catch affidavit within 48 
hr of the end of the fishing trip. The released catch affidavit must 
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.
    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 will provide enforcement with a 
sworn statement regarding the operator's decisions and may help NMFS 
understand why slippage occurs.
    NMFS expects that prohibiting slippage when vessels are carrying an 
observer will help reduce slippage events in the herring fishery, and 
thus improve the quality of observer catch data, especially data on 
bycatch species encountered in the herring fishery. NMFS also expects 
the released catch affidavit to help provide insight into when and why 
slippage occurs. Additionally, NMFS expects that the slippage 
prohibition will help minimize bycatch, and bycatch mortality, to the 
extent practicable in the herring fishery.

3. Measures To Address River Herring Interactions

    Amendment 5 establishes 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 sometimes 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). In contrast 
to bycatch, there is no MSA requirement to reduce incidental catch. 
Often, the term ``incidental catch'' is used interchangeably with 
``bycatch.'' It is important to recognize this distinction between 
bycatch and incidental catch in the Atlantic herring fishery when 
considering whether bycatch in this fishery is being reduced to the 
extent practicable. While measures in Amendment 5 are not expressly 
designed to address the catch of shad (American and hickory) in the 
herring fishery, measures to reduce the catch of river herring are 
expected to also reduce the catch of shad because of the overlapping 
distributions of river herring and shad.
    River herring are managed by the Atlantic States Marine Fisheries 
Commission (ASMFC) and the individual Atlantic Coast 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, but recently (78 FR 48944, August 
12, 2013) determined that listing river herring, as either threatened 
or endangered, under the Endangered Species Act is not warranted at 
this time. NMFS is establishing a technical working group and will 
continue to work closely with the ASMFC and others to develop a long-
term, dynamic conservation plan for river herring from Canada to 
Florida. The working group will evaluate the impact of ongoing 
restoration and conservation efforts, as well as new fisheries 
management measures, which should benefit the species. It will also 
review new information produced from ongoing research, including 
genetic analyses, ocean migration pattern research, and climate change 
impact studies, to assess whether recent reports, showing higher river 
herring counts in the last 2 years, represent sustained trends. NMFS 
intends to revisit its river herring status determination within the 
next 5 years.
    This action establishes River Herring Monitoring/Avoidance Areas 
for the herring fishery, which are areas established for two-month 
intervals to monitor river herring catch and encourage river herring 
avoidance. The coordinates for these areas are described in the 
regulations at Sec.  648.200(f)(4), and are based on NEFOP data from 
between 2005 and 2009 as to where river herring catch (greater than 40 
lb (18 kg)) occurred in the herring fishery. NMFS expects the slippage 
prohibition and released catch affidavit requirement to improve NMFS's 
understanding of river herring encounters in the herring fishery, 
especially in the River Herring Monitoring/Avoidance Areas. As the 
Council and NMFS learn more about river herring catch in the herring 
fishery, vessels fishing in the River Herring Monitoring/Avoidance 
Areas may be subject to additional regulations to further reduce river 
herring catch in the herring fishery. While the magnitude of the effect 
of river herring catch and bycatch on river herring populations is 
unknown, minimizing river herring catch and bycatch to the extent 
practicable is a goal of Amendment 5.
    Amendment 5 establishes a mechanism to develop, evaluate, and 
consider regulatory requirements for a river herring bycatch avoidance 
strategy in the herring fishery. A river herring bycatch avoidance 
strategy will 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 (MADMF); 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 the SFC, 
MADMF, and SMAST. This existing program is voluntary and 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 whether oceanographic features may predict 
high rates of river herring encounters.

[[Page 8791]]

    Phase I of the river herring bycatch avoidance strategy is: (1) 
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 measure will begin. Phase 
II involves 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 track 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 to move out of the Area; and (5) the distance 
and/or time that vessels would be required to move from the Areas.
    Amendment 5 also establishes 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 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 is necessary prior to implementation. Therefore, it 
is more appropriate to consider implementing a river herring catch cap 
through a framework, rather than through the specifications. The 
Council may begin development of the river herring catch cap framework 
immediately, but the framework cannot be implemented prior to the 
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. However, as noted below, the Council was later able to 
consider this assessment when developing a river herring catch cap.
    The Mid-Atlantic Fishery Management Council is also considering 
establishing a river herring catch cap for its mackerel fishery. 
Amendment 14 to the Atlantic Mackerel, Squid, and Butterfish FMP will 
allow the Mid-Atlantic Council to consider river herring and shad catch 
caps for the 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. The 
Mid-Atlantic Council met on June 12, 2013, and recommended establishing 
a river herring/shad catch cap of 236 mt for the mackerel fishery in 
2014.
    At its June 2013 meeting, the Council discussed the development of 
river herring catch caps in Framework 3 to the Herring FMP. The Council 
considered establishing catch caps by area and gear, as well as 
establishing catch caps for both river herring and shad. While 
Amendment 5 did not explicitly consider catch caps for shad, because 
river herring and shad are closely related species, and the nature of 
their encounters with the herring fishery are similar, Framework 3 will 
evaluate the technical merits of developing a shad catch cap for the 
herring fishery. At its September 2013 meeting, the Council took final 
action on Framework 3 and recommended establishing river herring and 
shad catch caps for midwater and bottom trawl gear in the herring 
fishery. Framework 3, if approved, is expected to be implemented in the 
spring or summer of 2014. 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 to evaluate the 
potential effects on river herring populations of such a catch cap on a 
coast-wide scale. Still, the Council supports establishing a river 
herring catch cap as soon as possible to encourage avoidance of river 
herring and shad to minimize bycatch and bycatch mortality.
    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 at-sea sampling, 
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 expands 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 
Sec.  648.81(a)-(e). This action requires 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

[[Page 8792]]

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. This action allows catch to be released before it was pumped 
aboard the vessel if: (1) Pumping the catch aboard could compromise 
safety, (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 is 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 details: (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.
    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.
    Under current practice, as well as under the proposed revisions to 
the standardized bycatch reporting methodology (SBRM) that are being 
developed, the Northeast Fisheries Science Center (NEFSC) would 
allocate all existing and specifically identified observer funding to 
support SBRM observer coverage. Therefore, herring vessels would be 
assigned observers based on SBRM coverage, including trips by midwater 
trawl vessels into the Closed Areas. All trips by midwater trawl 
vessels into the Closed Areas would have observer coverage, thereby 
increasing observer coverage in the Closed Areas. But until there is 
additional funding available, the number of trips midwater trawl 
vessels can make into the Closed Areas would be limited by SBRM 
funding. Additional observer coverage specifically for midwater trawl 
trips into the Closed Areas would be possible after SBRM monitoring is 
fully funded or if funds are specifically appropriated for such trips.
    If a midwater trawl vessel cannot fish in the Closed Areas on a 
particular trip because an observer is not assigned to that trip, any 
negative economic impact to that vessel is expected to be minimal. 
Analyses in the FEIS indicate that less than 10-percent of herring 
fishing effort occurs in the Closed Areas and less than 13-percent of 
the annual herring revenue comes from trips into the Closed Areas. 
Midwater trawl vessels will still have access to the Closed Areas 
during SBRM covered trips, even if there are less SBRM covered trips 
than in years past. Additionally, midwater trawl vessels can fish 
outside the Closed Areas without an observer.
    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, the Council believes it is 
important to determine the extent and nature of bycatch in the herring 
fishery. This measure still allows the herring midwater trawl fishery 
to operate in the Closed Areas, but it ensures that opportunities for 
catch retention and sampling are maximized.

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

    Amendment 5 specifies 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 include: 
(1) Changes to vessel trip notification and declaration requirements, 
(2) adjustments to measures to address slippage, (3) River Herring 
Monitoring/Avoidance Areas, (4) provisions for the river herring 
bycatch avoidance program, (5) changes to criteria/provisions for 
access to the Groundfish Closed Areas, and (6) river herring catch 
caps.
    The list of measures that could be modified through the 
specifications process include: (1) Possession limits; (2) River 
Herring Monitoring/Avoidance Areas; and (3) river herring catch caps.

Disapproved Measures

    The following sections detail why NMFS disapproved three measures 
that were proposed as part of Amendment 5. NMFS disapproved these three 
measures because it found the measures to be inconsistent with the MSA 
and other applicable law. The proposed rule for Amendment 5 described 
NMFS's concerns with these measures' consistency with the MSA and other 
applicable law. After review of public comment, NMFS, on behalf of the 
Secretary, disapproved these measures; therefore, this final rule 
excludes implementing regulations for these measures.

1. Increased Observer Coverage Requirements

    As described previously, the NEFSC determines observer coverage 
levels in the herring fishery based on the SBRM. Observer coverage in 
the herring fishery is currently fully funded by NMFS. Amendment 5 
proposed increasing 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. There are 
two types of costs associated with observer coverage: (1) Observer 
monitoring costs, such as observer salary and travel costs, and (2) 
NMFS support and infrastructure costs, such as observer training and 
data processing. The monitoring costs associated with an observer in 
the herring fishery are higher than $325 per day. Cost-sharing of 
monitoring costs between NMFS and the industry would violate the 
Antideficiency Act. Therefore, there is no current legal mechanism to 
allow cost-sharing of monitoring 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. Some commenters claim that the $325 per day industry 
contribution was not a limit, but a target, and that the Council 
intended the industry to pay whatever was necessary to ensure 100-
percent observer coverage. NMFS disagrees, and does not believe the 
amendment specifies that the industry would pay all the monitoring 
costs associated with 100-percent observer coverage, nor does

[[Page 8793]]

it analyze the economic impacts of the industry paying all the 
monitoring costs. The FEIS for Amendment 5 analyzed alternatives with 
the industry paying $325 per day or $1,200 per day (estimated sum of 
observer monitoring costs and NMFS support and infrastructure costs), 
but it did not analyze a range of alternatives that would approximate 
total monitoring costs. Budget uncertainties prevent NMFS from being 
able to commit to paying for increased observer coverage in the herring 
fishery. Requiring NMFS to pay for 100-percent observer coverage would 
amount to an unfunded mandate. Because Amendment 5 did not identify a 
funding source to cover the costs of increased observer coverage, the 
measure is not sufficiently developed to approve at this time. 
Therefore, NMFS had to disapprove the 100-percent observer coverage 
requirement. With the disapproval of this measure, this action 
maintains the existing SBRM observer coverage levels and Federal 
observer funding for the herring fishery.
    Recognizing funding challenges, Amendment 5 specified 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, were to attempt to develop 
a way to fund 100-percent observer coverage.
    During 2013, a working group was formed to identify a workable, 
legal mechanism to allow for industry-funded observer coverage in the 
herring fishery; the group includes staff from the New England and Mid-
Atlantic Councils and NMFS. To further explore the legal issues 
surrounding industry-funded observer coverage, NMFS formed a working 
group of Northeast Regional Office, NEFSC, General Counsel, and 
Headquarters staff. The NMFS working group identified an administrative 
mechanism to allow for industry funding of observer monitoring costs in 
Northeast Region fisheries, as well as a potential way to help offset 
funding costs that would be borne by the industry, subject to available 
funding. This administrative mechanism would be an option to fund 
observer coverage targets that are higher than SBRM coverage levels. 
The mechanism to allow for industry-funded observer coverage is a 
potential tool for all Northeast Region FMPs, but it would need to be 
added to each FMP through an omnibus amendment to make it an available 
tool, should the Council want to use it. Additionally, this omnibus 
amendment could establish the observer coverage targets for Category A 
and B herring vessels.
    In a September 20, 2013, letter to the Council, NMFS offered to be 
the technical lead on an omnibus amendment to establish the 
administrative mechanism to allow for industry-funded observer coverage 
in New England and Mid-Atlantic FMPs. At its September 2013 meeting, 
the Council considered NMFS's offer and encouraged NMFS to begin 
development of the omnibus amendment. At this time, NMFS expects to 
present a preliminary range of alternatives for the omnibus amendment 
to the New England and Mid-Atlantic Councils in early 2014.
    Additionally, other Amendment 5 measures implemented in this action 
help improve monitoring in the herring fishery. These 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 slippage prohibition 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 have required 100-percent observer 
coverage, coupled with a $325 contribution by the industry, would have 
also required that: (1) The 100-percent coverage requirement be re-
evaluated by the Council 2 years after implementation; (2) the 100-
percent coverage requirement 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 apply to observer service providers for 
the herring fishery; and (4) states be authorized as observer service 
providers. NMFS believes these additional measures are inseparable from 
the 100-percent observer coverage requirement; therefore, NMFS had to 
disapprove these measures too. With the disapproval of these measures, 
the existing waiver and observer service provider requirements remain 
in effect.

2. Measures To Minimize Slippage

    Amendment 5 proposed establishing 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, without being unduly burdensome on 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 
compared to total catch (approximately 1.25 percent). 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 were as follows: 4 by bottom trawl; 36 by 
purse seine; and 34 by midwater trawl. The data did not consistently 
differentiate the slippage events by area.
    Under the proposed measure, once a slippage cap for a particular 
gear type in a herring management area 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 could 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. Conversely, vessels responsible for 
slippage events 1 through 10, could continue fishing after the 11th 
slippage event, provided they do not slip catch again. NMFS believes 
this aspect of the proposed measure is inequitable. Additionally, this 
measure could have resulted in a vessel operator having to choose 
between trip termination and bringing catch aboard despite a safety 
concern. For these reasons, NMFS believes this measure is inconsistent 
with the MSA National Standards 2 and 10 and disapproved it.

[[Page 8794]]

    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 
terminate the trip and return to port. Additionally, because the 
consequences of slipping catch apply uniformly to all vessels under the 
Closed Area I requirements, inequitable application among the fleet is 
not an issue for the Closed Area I requirements, like NMFS believes it 
is for the proposed slippage caps.
    If the Council wants to revise the slippage cap in a future action, 
the revisions would need to address issues concerning safety, the 
biological/administrative justification for the cap's trigger, and 
equity. The slippage cap could be revised to be more similar to the 
sampling requirements in Groundfish Closed Area I, such that all 
vessels that slip catch have a consequence. This revision would 
alleviate NMFS's concern with the equitable application of the slippage 
cap among those who contribute to reaching the cap, as well as its 
concern with the basis for triggering the cap. The consequence of 
slipped catch could be a requirement to leave the area where the 
slippage event occurred; the area could be a herring management area or 
a statistical area. But the consequence should not be so severe as to 
create a safety issue. To alleviate safety concerns, slippage for 
safety, mechanical, or excess spiny dogfish catch reasons could be 
exempt from any consequence, except that the vessel would still be 
required to complete a released catch affidavit.
    Even though the slippage caps were disapproved, the prohibition on 
slippage, the released catch affidavit, and the ongoing data collection 
by NEFOP, and 100-percent observer coverage requirement for midwater 
trawl vessels fishing in groundfish closed areas still allow for 
improved monitoring in the herring fishery, increased information 
regarding discards, and an incentive to minimize the discarding of 
unsampled catch.

3. Reporting Requirements for Dealers

    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 proposed requiring herring 
dealers to accurately weigh all fish and, if catch is 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 did not specify how fish are to be 
weighed, and would still allow volumetric estimates, the measure may 
not have changed dealer behavior and, therefore, the requirement may 
not have led to any measureable change in the accuracy of catch weights 
reported by dealers. Further, this measure did not provide standards 
for estimating species composition. Without standards for estimating 
species composition or for measuring the accuracy of the estimation 
method, NMFS may have been unable to evaluate the sufficiency of the 
methods used to estimate species composition. For these reasons, the 
proposed requirement for dealers to document the methods used to 
estimate species composition may have not improved 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 foregoing, NMFS evaluated whether the proposed 
measure has practical utility, as required by the MSA and the Paperwork 
Reduction Act (PRA), that outweighs the additional reporting and 
administrative burden on the dealers. In particular, NMFS considered 
whether and how the proposed measure would help 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.
    NMFS determined that this measure would not measurably improve the 
accuracy of dealer reporting or the management of the herring 
resources. NMFS also determined that this measure does not comply with 
National Standard 7's requirement to minimize costs and avoid 
unnecessary duplication, and the PRA's requirement for the utility of 
the measure to outweigh the additional reporting and administrative 
burden on the dealers. Therefore, NMFS disapproved the dealer reporting 
requirements. With the disapproval of this measure, the existing 
requirement that dealers accurately report the weight of fish is still 
in effect.
    If the Council wants to revise dealer reporting requirements in a 
future action, the revisions would need to address issues concerning 
accuracy and utility of the information reported and could be addressed 
in several ways.
    The Council could select Alternative 3.1.5.2 Sub-Option 2C in 
Amendment 5 (requiring vessel owners to review and validate data for 
their vessels in Fish-on-Line) and propose that measure in a future 
action. This measure would be a change from status quo, and it has some 
utility, as it helps identify, and possibly reduce, discrepancies 
between dealer and vessel reports. This option has an accompanying 
recommendation for daily vessel trip and dealer reports. Changing 
reporting frequency would increase the timeliness of reports and would 
provide data to NMFS for validation sooner than they are currently 
available.
    Another way for the Council to revise the dealer reporting 
requirement would be to clarify and standardize the methods used to 
``accurately weigh all fish.'' Does the measure require fish to be 
weighed using a scale? Does the measure require a volumetric estimate 
based on a certified fish hold or standardized totes? If the methods to 
``accurately weigh all fish'' were specified, it would likely change 
dealer behavior from status quo, and may, depending on the methods, 
improve the accuracy of dealer reports.
    Alternatively, the Council could take this opportunity to revisit 
the original concern that sparked the development of the dealer 
reporting requirement, that

[[Page 8795]]

landings data were not verified by a third party, and revise the 
measure to better address that concern. Lastly, the sub-option 
requiring dealers to document how they estimate the composition of 
catch was intended to gather information on methods used by dealers to 
estimate species composition. Another way to obtain that type of 
information would be to gather it as part of a data collection program 
that would update community profiles for Northeast fisheries.

Comments and Responses

    NMFS received 8,163 comments during the comment period on the 
proposed rule. Form letters, comprising 8,008 comments, were submitted 
by two environmental advocacy groups (EAGs). Comments were also 
submitted by other EAGs, individuals involved in other fisheries (e.g., 
groundfish, tuna, recreational), the general public, the herring 
industry, and the Council. Only comments relevant to measures 
considered in Amendment 5 are summarized and addressed below. Comments 
related to other fishery management actions or general fishery 
management practices are not addressed here. Some commenters re-
submitted comments on the DEIS for Amendment 5. Comment letters 
submitted on the DEIS for Amendment 5 are addressed in the Section 
8.1.4 of the Amendment 5 FEIS, so neither the comment nor the response 
is repeated here.

1. General Comments

    Comment 1: Many commenters urged NMFS to approve Amendment 5 in its 
entirety, but provided no specific comments on the proposed measures. 
Additional commenters acknowledged that the amendment contains many 
important components, but they believe the slippage cap and 100-percent 
observer coverage requirement are the two measures that are critical to 
managing the herring fishery. One commenter does not believe that any 
of the concerns voiced by NMFS regarding the 100-percent observer 
coverage requirement and the slippage cap are valid because the Council 
designed these measures with safety and fairness in mind. Many 
commenters believe it is essential that NMFS approve and implement 
Amendment 5 because the herring resource, a cornerstone of the 
Northeast ecosystem, is too important to manage inadequately.
    Response: NMFS agrees with the commenters that herring is critical 
to the health of the Northeast ecosystem and that it must have careful 
and effective management. NMFS also supports improvements to fishery 
dependent data collections by expanding, to the extent practicable, at-
sea monitoring of the herring fishery and reducing bycatch and 
unnecessary discarding. While the Council may have designed the 100-
percent observer coverage requirement and slippage cap measure to 
consider safety and fairness, as described previously, NMFS believes 
the resulting 100-percent observer requirement and slippage caps 
proposed in Amendment 5 are inconsistent with the MSA and other 
applicable law. Therefore, regardless of NMFS's desire to increase 
monitoring and reduce bycatch in the herring fishery, it cannot approve 
and implement measures it believes inconsistent with applicable law.
    NMFS agrees with the commenter that herring is an important marine 
resource in the Northeast and that Amendment 5 has many of the tools to 
improve management of the herring fishery, but disagrees that the 
amendment has no utility without the 100-percent observer coverage 
requirement and slippage caps. Amendment 5 implements many measures 
that improve monitoring and bycatch minimization in the herring 
fishery, including adjustments to the fishery management program and 
at-sea monitoring, such as prohibiting slippage; and measures to 
address river herring interactions and midwater trawl access to 
groundfish closed areas.
    Comment 2: Two EAGs expressed their concern that, in the proposed 
rule, NMFS explained that it may not be able to approve several 
critical elements of Amendment 5. The commenters believe that NMFS 
fails to recognize the substantial need for these measures, their 
central role in the overall Amendment 5 reform package, and their 
strong justification in the FEIS. A number of other commenters raised 
similar sentiments focusing on their belief that these measures strike 
a carefully designed balance between conservation and industry needs, 
are consistent with the MSA and other applicable law, and should be 
approved in full.
    Response: NMFS expressed concern with the 100-percent observer 
coverage requirement, the slippage caps, and the dealer reporting 
requirements throughout the development of this amendment. But these 
measures have strong support from many stakeholders, and they were not 
modified in such a way as to alleviate NMFS's concerns. The proposed 
rule for Amendment 5 described potential concerns about these measures' 
consistency with the MSA and other applicable law. No new or additional 
information was identified by commenters during the public comment 
period on the NOA for Amendment 5 to address NMFS's concerns with the 
identified deficiencies of these measures. Therefore, on July 18, 2013, 
NMFS determined these three measures must be disapproved.
    On September 20, 2013, NMFS sent a letter to the Council with 
recommendations on how these measures could be revised to address these 
measures' identified deficiencies. If the Council chooses to revise 
these measures, NMFS will work with the Council to design effective 
measures that help improve management of the herring fishery. Revised 
measures could be addressed in upcoming Council actions. Whether that 
action would be an amendment or framework will depend on the scope of 
the revised measure.
    The measures in Amendment 5 that were approved by NMFS are 
consistent with the MSA and other applicable law, and analysis in the 
FEIS indicates these measures will improve data quality as well as 
bycatch avoidance and minimization.
    Comment 3: Several EAGs commented that NMFS undermined the public's 
opportunity to effectively comment on Amendment 5 measures prior to 
NMFS's decision to approve, disapprove, or partially approve Amendment 
5. The commenters stated that because the preamble of the proposed rule 
outlined NMFS's serious concerns about the approvability of several 
Amendment 5 measures and requested public comment, all comments 
received through the proposed rule's comment period deadline (July 18, 
2013) should be considered in Amendment 5's approval decision.
    Response: The NOA for Amendment 5 published on April 22, 2013; the 
notice for its accompanying FEIS published on April 26, 2013; and the 
Amendment 5 proposed rule published on June 3, 2013. The comment 
periods for the NOA and proposed rule overlapped for 19 days. NMFS must 
approve/disapprove an amendment by 30 days after the close of the 
comment period on the NOA. That decision date for Amendment 5 was July 
19, 2013. Therefore, it would not have been possible to consider all 
public comments received through July 18, 2013, in the decision to 
approve/disapprove Amendment 5.
    NMFS received over 100 comments during the NOA comment period. 
While most of those comments expressed strong support for the full 
approval of Amendment 5, they did not offer solutions to NMFS's 
identified

[[Page 8796]]

deficiencies in Amendment 5 measures. Additionally, while not 
explicitly considered in the decision to partially approve Amendment 5, 
NMFS reviewed and considered all comments received during the proposed 
rule comment period prior to publishing this final rule. However, no 
new or additional information was identified by commenters during the 
public comment period on the proposed rule to address NMFS's concerns 
with the disapproved measures.
    Additionally, NMFS's approvability concerns with the three measures 
disapproved in Amendment 5 should have been no surprise to interested 
stakeholders. NMFS's concerns with these measures had been discussed 
throughout the development of Amendment 5, and were clearly articulated 
in a comment letter to the Council (dated June 5, 2012) prior to the 
Council taking final action on Amendment 5 in June 2012.
    Comment 4: One EAG believes that Amendment 5 segments decision 
making and fails to: (1) Consider whether river herring and shad should 
be stocks in the Herring FMP, (2) minimize river herring and shad 
bycatch to the extent practicable, and (3) consider a range of 
alternatives for an acceptable biological catch (ABC) control rule for 
herring.
    Response: Amendment 5 is not required to consider all aspects of 
management of the herring fishery; instead the amendment is focused on 
considering measures to improve monitoring and address bycatch. 
Considering whether river herring and shad should be stocks in the 
Herring FMP or considering a range of alternatives for an ABC control 
rule for herring are outside the scope of Amendment 5.
    Amendment 5 implements the following measures to address bycatch in 
the herring fishery: (1) Prohibiting slippage, with exceptions for 
safety concerns, mechanical failure, and spiny dogfish preventing catch 
from being pumped aboard the vessel, and requiring a released catch 
affidavit to be completed for each slippage event; (2) expanding at-sea 
sampling requirements for all midwater trawl vessels fishing in 
groundfish closed areas; (3) establishing a new open access permit to 
reduce the potential for the regulatory discarding of herring in the 
mackerel fishery; (4) establishing the ability to consider a river 
herring catch cap in a future framework; (5) establishing River Herring 
Monitoring/Avoidance Areas; (6) evaluating the ongoing bycatch 
avoidance program investigation of providing real-time, cost-effective 
information on river herring distribution and fishery encounters in 
River Herring Monitoring/Avoidance Areas; and (7) expanding and adding 
reporting and sampling requirements designed to improve data collection 
methods, data sources, and applications of data to better determine the 
amount, type, disposition of bycatch.
    The Herring FMP, and related bycatch measures in the Northeast 
Multispecies FMP, comply with National Standard 9's requirement to 
minimize bycatch and bycatch mortality to the extent practicable. 
Amendment 5 implements many measures designed to provide incentives for 
incidental catch and bycatch avoidance and gather more information that 
may provide a basis for future bycatch avoidance or bycatch mortality 
reduction measures. These measures are supported by sufficient analysis 
and consideration of the best available scientific information and the 
MSA National Standards, and represent the most practicable bycatch 
measures based on the information available at this time.
    In November 2012, the Council voted to consider whether river 
herring and shad should be stocks in the herring fishery in an 
amendment during 2013. The Council did not have the time to consider 
whether river herring and shad should be stocks in the Herring FMP 
during 2013; therefore, the Council made this consideration a Herring 
FMP priority for 2014.
    The Council considered an ABC control rule for herring as part of 
the 2013-2015 Herring Specifications/Framework 2 to the Herring FMP. 
The Council determined, based on recommendations from its Scientific 
and Statistical Committee (SSC), that the constant catch ABC control 
rule adequately accounts for Atlantic herring's role as forage, as it 
allows for sufficient Atlantic herring biomass through 2015 to support 
ecosystem considerations, including Atlantic herring's forage role in 
the ecosystem, and yields short-term biomass projections for 2013-2015 
that are very similar to other forage fish control rules (e.g., Lenfest 
Forage Fish Report control rule; Pacific Fishery Management Council's 
control rule for coastal pelagic species). The June 2012 herring stock 
assessment made a significant advance in accounting for herring's role 
as a forage species by revising natural mortality rate and the constant 
catch ABC control rule was developed from catch projections in that 
assessment. The SSC recommended that considerably more analysis would 
be necessary before it could support applying forage fish control rules 
like the Lenfest and Pacific Council approaches to herring in the 
future, including evaluating predator-prey models, the relationship 
between maximum sustainable yield and changing natural mortality rates 
due to changes in consumption, and unintended consequences of treating 
forage species differently than other managed species. Based on the 
SSC's recommendations, the Council discussed that control rules for 
forage species, such as the Lenfest and Pacific Council control rules, 
should receive further evaluation prior to any potential implementation 
as a long-term strategy for managing herring, and should be evaluated 
in a future amendment to the Atlantic Herring FMP. NMFS concurs with 
the Council's conclusions on the constant catch ABC control rule and 
further consideration on forage-based control rules for Atlantic 
herring, as described in NMFS's August 29, 2013, letter to the Council, 
including the implications of forage-based control rules on other 
components of the ecosystem and on the biological reference points for 
Atlantic herring. The effective date of the 2013-2015 Atlantic Herring 
Specifications/Framework 2 was September 30, 2013, and NMFS published 
the final rule on October 4, 2013, (78 FR 61828).
    Comment 5: One EAG believes that Amendment 5 was unlawfully delayed 
because the NOAs for the amendment and its FEIS were not published 
until April 2013, despite Amendment 5 being completed by the Council 
and submitted to NMFS on December 21, 2012.
    Response: The Council adopted Amendment 5 on June 20, 2012, and 
submitted Amendment 5 to NMFS for initial review on September 10, 2012. 
NMFS reviewed the amendment for consistency with NEPA requirements and 
identified deficiencies in the NEPA analysis that needed to be 
addressed. Following a series of revisions, the Council submitted 
Amendment 5 to NMFS on March 25, 2013. Following the March submission, 
NMFS determined that the NEPA analysis for Amendment 5 met the 
necessary requirements and transmitted Amendment 5 to the Secretary on 
April 16, 2013. An NOA for the FEIS was prepared for Amendment 5 and 
published on April 26, 2013, with a comment period ending May 28, 2013, 
and an NOA for the amendment published on April 22, 2013, with a 
comment period ending June 21, 2013.

[[Page 8797]]

2. Comments on Adjustments to the Fishery Management Program

    Comment 6: One commenter opposes transfers-at-sea because they 
believe that all fish should be counted at the dock before they are 
transferred.
    Response: During the early development of Amendment 5, NMFS 
identified transfers-at-sea as one potential issue to address when 
developing a more comprehensive catch monitoring program for the 
herring fishery. Herring is transferred at sea between harvesting 
vessels and vessels purchasing herring for personal use as bait, 
herring carriers, and other permitted herring vessels for transport. 
The Council's Herring Plan Development Team (PDT) reviewed herring 
transfer-at-sea data and found that issues related to reporting and 
monitoring of transfers-at-sea had largely been clarified in recent 
years through explicit reporting guidance from NMFS. Additionally, data 
in Table 127 in Section 6.1.2.2.5 of the Amendment 5 FEIS support the 
conclusion that the amount of herring transferred at sea is minimal and 
represents a very small fraction of the herring fishery. Given the 
improved monitoring of transfers-at-sea, his action allows for status 
quo transfer-at-sea activities to continue in the herring fishery 
because any additional reporting burden would outweigh the potential 
benefit of limiting transfers-at-sea.
    Comment 7: Commenters urged NMFS to approve the requirement that 
herring dealers accurately weigh all fish, because accurate landings 
data will ensure catch accountability, including catch estimates for 
river herring and shad, for the herring fishery and it has strong 
support from stakeholders. Commenters disagree with NMFS's language in 
the proposed rule that describe this measure is essentially status quo. 
They believe this measure is intended to end the practice of dealers 
reporting visual estimates of catch weight in favor of verifiable 
methods such as scales or volumetric estimates of fish holds. 
Additionally, commenters encouraged NMFS to include effective 
regulations implementing this measure in the final rule for Amendment 
5, especially prohibiting visual volumetric estimates of catch weight 
and specifying third-party verification of landings.
    Response: Section 6.1.4.1 of the Amendment 5 FEIS provides examples 
of how dealers would comply with the requirement to ``accurately weigh 
all fish.'' It describes dealers weighing fish on scales, obtaining 
volumetric estimates from certified fish holds, and using a volumetric 
estimate of a box or container of fish to serve as the weight of any 
box of fish of a similar size. All of these practices are currently 
used by dealers. Because the FEIS describes using a volumetric estimate 
of a container of fish to generate the weight of any container of a 
similar size, NMFS believes that the amendment would have continued to 
allow, rather than end, the practice of visual estimates of catch 
weight. In analyzing the effectiveness of using a volumetric estimate 
of a container of fish to generate the weight of any container of a 
similar size, the FEIS concludes that this example would result in very 
little, if any, change in dealer behavior and that estimates may, 
therefore, not be an improvement over status quo.
    The MSA only allows NMFS to approve or disapprove a measure in an 
amendment; it does not allow NMFS to substantially modify a measure. 
NMFS would have had to substantially modify the proposed requirement 
for dealers to ``accurately weigh all fish'' in order to prohibit 
visual volumetric estimates of catch weight or to require third-party 
verification of landings. Dealers are currently required to accurately 
report the weight of fish. Lacking the ability to modify the proposed 
dealer weigh requirement, NMFS disapproved the proposed requirement 
because it would not likely have changed dealer behavior and would not 
likely have improved the accuracy of weights reported by dealers.
    Comment 8: Some commenters believe that requiring dealers to 
document their methods for estimating catch composition, as proposed in 
Amendment 5, would ensure that mixed-species catches are more 
accurately weighed by dealers, thus aiding in the monitoring of 
depleted species such as river herring and certain groundfish species.
    Response: NMFS disagrees that requiring dealers to document their 
methods for estimating catch composition would ensure that mixed-
species catch are more accurately weighed by dealers. As described 
previously, the proposed measure that dealers ``accurately weigh all 
fish'' did not require dealers to weigh fish on a scale. Additionally, 
the requirement to document how the composition of a mixed catch is 
estimated would not require the use of any particular method to 
estimate species composition. In the absence of a requirement to change 
estimation methods, dealers would be unlikely to change their 
estimation methods from current practices; therefore, it is unlikely 
that that this measure would have improved the accuracy of weights 
reported by dealers.
    Comment 9: One commenter supports the requirement that dealers 
accurately weigh all fish and sort catch by species. The commenter 
believes that the mechanical weighing of fish, not relying on 
volumetric estimates, is the most accurate way to monitor catch in the 
herring fishery. The commenter also believes these proposed dealer 
reporting requirements would aid in accurate catch reporting, help 
prevent overfishing, and promote long-term health of the herring 
resource by ensuring that catch stays within catch limits.
    Response: NMFS agrees that the mechanical weighing of fish, rather 
than relying on volumetric estimates, is often the most accurate method 
to determine weight. However, Amendment 5 would not have required the 
mechanical weighing of fish, nor would it have required dealers to sort 
catch by species. Therefore, the proposed measure would not have 
improved the accuracy of catch reporting, help prevent overfishing, or 
promote the long-term health of the herring resource by ensuring catch 
stays within catch limits any more that the current requirement that 
dealers accurately report the weight of fish.
    Comment 10: Several EAGs stated that the Amendment 5 FEIS does not 
contain sufficient justification to indicate that a new open access 
herring permit with a 20,000-lb (9-mt) herring possession limit for 
limited access mackerel vessels fishing in Areas 2 and 3 is needed. 
They believe that this new permit would result in new, poorly 
understood effort in the mackerel fishery outside the scope of the new 
monitoring program and would increase directed herring fishing during 
times and areas where river herring and shad incidental catch is of 
great concern. Additionally, they do not believe this measure would 
help satisfy National Standard 9 requirements.
    Response: NMFS believes the FEIS provides sufficient justification 
for establishing the new Areas 2/3 Open Access Herring Permit. Section 
6.1.5 of the FEIS describes the 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

[[Page 8798]]

open access permit's 6,600-lb (3-mt) possession limit. The FEIS 
suggests that herring discards in the mackerel fishery are currently 
low, and states that the extent to which discarding may be minimized by 
increasing the possession limit to 20,000 lb (9 mt) is unclear. 
However, VTR data may not be well suited to reflect a discard problem 
at this time, and may not fully characterize the potential for this 
problem to exist in the future. Additionally, the industry has stated 
that it has not been fishing for mackerel as much in recent years 
because mackerel are less available to the fishery now as they may have 
shifted to offshore areas, and because of concerns about encountering 
herring in quantities larger than the current open access herring 
permit possession limit.
    Therefore, 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, especially if effort in the mackerel 
fishery should approach historical levels. This is consistent with 
National Standard 9's requirement to minimize bycatch to the extent 
practicable. All herring catch and discards are tracked against herring 
ACL/sub-ACLs, so the biological impact of the new permit on herring is 
expected to be neutral.
    Ongoing observer coverage in the herring fishery, in combination 
with the measures in Amendment 5 prohibiting slippage, should improve 
observer data on bycatch and incidental catch in the herring fishery. 
Further, possession limits can be modified through a framework 
adjustment or the specifications process. If the catch of river herring 
and shad is determined to be too high, the 20,000-lb (9-mt) possession 
limit could be modified in a future action.
    Comment 11: A few commenters support approval of the following 
measures: (1) Revising regulatory definitions of transfer at-sea and 
offload, particularly to lessen the likelihood of double counting 
catch; (2) revising operating provisions for herring carriers (i.e., 
At-Sea Dealer Permit, exempting herring carriers from VTR requirements) 
to minimize data mismatches between dealer and vessel reports and 
lessen the likelihood of double counting catch; (3) providing herring 
carriers with flexibility in the 7-day enrollment period associated 
with the herring carrier LOA by also allowing carriers to declare trips 
via VMS; (4) establishing an Areas 2/3 Open Access Permit (Category E) 
to limit the potential for regulatory discards of herring during 
mackerel fishing; (5) modifying the existing 72-hr trip notification 
requirement to a 48-hr notification requirement; (6) prohibiting 
vessels from turning off their VMS when in port; and (7) requiring 
vessels working cooperatively to be subject to the most restrictive 
possession limit.
    Response: NMFS concurs with the commenters. These measures were 
approved, and this action implements them, because NMFS believes these 
measures will help improve monitoring and address bycatch in the 
herring fishery, improve overall management of the herring fishery, and 
are consistent with the MSA and other applicable law.
    Comment 12: One commenter questioned why vessels issued the new 
Areas 2/3 Open Access Permit (Category E) would be subject to the same 
notification requirements as limited access vessels, but not limited 
access catch monitoring requirements.
    Response: 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, 
this action establishes notification and reporting requirements for the 
Category E permit that are consistent with the requirements for 
Category C vessels, including the requirement to possess and maintain a 
VMS, VMS activity declaration and pre-landing 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 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 extend those catch monitoring 
requirements to Category E vessels.
    Comment 13: One commenter was concerned that herring midwater trawl 
and purse seine vessels would still be subject to the more restrictive 
groundfish requirement that vessels contact NMFS 72-hr in advance of 
fishing trip to request an observer, rather than the less restrictive 
48-hr trip notification requirement in Amendment 5. To minimize the 
potential for confusion, one commenter encourages NMFS to work with the 
Council to change the 72-hr groundfish requirement to be consistent 
with the 48-hr herring requirement.
    Response: NMFS agrees that differences in the pre-trip observer 
notification requirement may cause the herring industry confusion, and 
NMFS will work with the Council toward standardizing the 72-hr 
requirement to a 48-hr requirement in an upcoming groundfish action.

3. Comments on Adjustments to At-Sea Monitoring

    Comment 14: Several commenters urged NMFS to approve critical 
measures in Amendment 5 designed to better monitor catch and bycatch in 
the herring fishery, including the 100-percent coverage requirement. 
They explain that the Council approved the 100-percent observer 
coverage requirement on Category A and B vessels with widespread public 
support from commercial and recreational fishermen, eco-tourism and 
coastal businesses, river herring and coastal watershed advocates, and 
other members of the public. They believe that 100-percent observer 
coverage is justified, given the fleet's harvesting capacity and its 
demonstrated bycatch, and makes it possible to document rare bycatch 
events. Additionally, they believe the 100-percent coverage measure is 
consistent with the MSA and other applicable law, and necessary to meet 
requirements to end overfishing, minimize bycatch, and ensure 
accountability.
    Response: NMFS supports increasing observer coverage to the extent 
practicable to better monitor catch and bycatch in the herring fishery. 
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. Budget uncertainties prevent NMFS from being able to 
commit to paying for increased observer coverage in the herring 
fishery. Requiring NMFS to pay for 100-percent observer coverage would 
amount to an unfunded mandate. Because Amendment 5 does not identify a 
funding source to cover the costs of increased observer coverage, the 
measure is not sufficiently developed to approve at this time. 
Therefore, NMFS had to disapprove the 100-percent observer coverage 
requirement.

[[Page 8799]]

    With the disapproval of the 100-percent observer coverage 
requirement measure, the existing SBRM observer coverage levels and 
Federal observer funding for the herring fishery remain in effect. The 
approved at-sea sampling measures and other bycatch minimizing measures 
in Amendment 5 reduce bycatch to the extent practicable. Current 
observer coverage includes SBRM coverage levels that used to monitor 
bycatch. In addition to SBRM coverage, Amendment 5 provides for full 
accounting of catch in groundfish closed areas, aimed at determining 
the accuracy of claims of recreational fishermen and environmental 
groups of high incidence of unreported groundfish bycatch. Given the 
increased level of coverage in groundfish closed areas and data 
indicating that herring vessels have low bycatch incidence, NMFS's 
disapproval of the 100-percent observer coverage measure did not 
appreciably reduce the Herring FMP's ability to minimize bycatch.
    The MSA National Standards also require the Councils and NMFS to 
consider costs and efficient use of resources to the extent 
practicable. The 100-percent observer coverage requirement was 
accompanied by a cost-sharing measure that attempted to mitigate the 
impact of the relatively high cost of 100-percent observer coverage on 
the industry. However, the Council's recommendation for NMFS and the 
industry to share the observer monitoring costs was not sufficiently 
developed to avoid conflicting with the Antideficiency Act. 
Consequently, maintaining the existing SBRM coverage rates that have 
been determined to be sufficient for vessels fishing for herring 
outside of groundfish closed areas, combined with increasing coverage 
for vessels fishing for herring inside groundfish closed areas, plus 
other measures such as improved sampling and administrative measures 
are the most practicable observer coverage measures for the fishery at 
this time. In total, the new measures approved as part of Amendment 5 
meet the MSA requirements to end overfishing, minimize bycatch to the 
extent practicable, and ensure catch accountability.
    Recognizing funding challenges, Amendment 5 specified status quo 
observer coverage levels and funding for up to 1 yr following the 
implementation of Amendment 5, with the 100-percent observer coverage 
and partial industry funding requirement to become effective 1 yr 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.
    During 2013, staff from NMFS and the New England and Mid-Atlantic 
Councils formed a working group to identify a workable, legal mechanism 
to allow for industry-funded observer coverage in the herring and 
mackerel fisheries. To further explore the legal and logistical issues 
surrounding industry-funded observer coverage, NMFS formed a working 
group of Northeast Regional Office, NEFSC, General Counsel Northeast, 
and NMFS Headquarters staff. The NMFS working group identified an 
administrative mechanism to allow for industry funding of observer 
monitoring costs in Northeast Region fisheries, as well as a potential 
way to help offset funding costs that would be borne by the industry, 
subject to available funding. This administrative mechanism would be an 
option to fund observer coverage targets that are higher than SBRM 
coverage levels and would likely include a prioritization process to 
allocate available funding across fisheries. The mechanism to allow for 
industry-funded observer coverage is a potential tool for all Northeast 
Region FMPs, but would need to be added to each FMP through an omnibus 
amendment to make it an available tool, should the Council want to use 
it. Additionally, this omnibus amendment could establish observer 
coverage targets for Category A and B herring vessels.
    In a September 20, 2013, letter to the Council, NMFS offered to be 
the technical lead on an omnibus amendment to establish the 
administrative mechanism to allow for industry-funded observer coverage 
in New England and Mid-Atlantic FMPs. At its September 2013 meeting, 
the Council considered NMFS's offer and encouraged NMFS to begin 
development of the omnibus amendment. At this time, NMFS expects to 
present a preliminary range of alternatives for the omnibus amendment 
to the New England and Mid-Atlantic Councils in early 2014.
    Comment 15: Several commenters claim: (1) The Council did identify 
a funding source for the 100-percent observer coverage requirement; (2) 
the Council's recommendation that the industry pay a maximum target of 
$325 per day towards observer costs was only a target value; and (3) 
the Council intended that the industry should pay whatever costs are 
necessary to ensure 100-percent observer coverage.
    Response: The amendment states that the preferred funding option 
for the 100-percent observer coverage requirement is a target maximum 
industry contribution of $325 per sea day. NMFS does not believe this 
description indicates that the industry would be responsible for paying 
whatever cost is necessary to fund 100-percent observer coverage, but 
rather would target industry costs around $325.
    There are two types of costs associated with observer coverage: (1) 
Observer monitoring costs, such as observer salary and travel costs; 
and (2) NMFS support and infrastructure costs, such as observer 
training and data processing. Monitoring costs can either be paid by 
industry or paid by NMFS, but they cannot legally be shared; NMFS 
support and infrastructure costs can only be paid by NMFS. The 
monitoring costs associated with an observer in the herring fishery are 
higher than $325 per day. The FEIS for Amendment 5 analyzes an 
alternative with the industry paying $325 per day toward observer 
monitoring costs and paying $1,200 per day (estimated sum of observer 
monitoring costs and NMFS support and infrastructure costs), but it 
does not analyze a range of that would approximate total monitoring 
costs.
    The amendment neither describes nor analyzes an option where the 
industry is responsible for paying all observer monitoring costs. 
Therefore, Amendment 5 does not identify a funding source to cover the 
costs of increased observer coverage, and the industry-funded observer 
requirement is not sufficiently developed to approve in Amendment 5.
    Comment 16: EAGs disagree with NMFS's statement in the proposed 
rule that there is no legal mechanism to allow timely implementation of 
the Council's preferred funding options, and point to successful 
precedents set on the West Coast for cost-sharing between NMFS and the 
industry.
    Response: In Amendment 5, the 100-percent observer requirement is 
coupled with a target maximum industry contribution of $325 per day. 
The monitoring costs associated with an observer in the herring fishery 
are higher than $325 per day. The Department of Commerce Office of 
General Counsel has advised that cost-sharing of observer monitoring 
costs between NMFS and the industry would violate the Anti-Deficiency 
Act. NMFS may pay all the observer monitoring costs (e.g., NEFOP 
observers) or the industry may pay all the observer monitoring costs 
(e.g., Atlantic scallop fishery), but NMFS and the industry cannot both 
pay towards observer monitoring costs. Therefore, there is no current 
legal mechanism to allow cost-sharing of monitoring costs between NMFS 
and the industry.

[[Page 8800]]

    In the Pacific Groundfish Trawl Program, the industry is required 
to pay all observer monitoring costs. However, as a way to transition 
the industry to paying all observer monitoring costs, NMFS is 
reimbursing the observer service providers a percentage of the observer 
monitoring costs through a grant with the Pacific States Marine 
Fisheries Commission. The level of reimbursement is contingent on 
available NMFS funding and is expected to decrease over time, such 
that, eventually, the industry will be paying all observer monitoring 
costs. Subject to NMFS funding, this grant mechanism may also be a 
temporary option to reimburse the herring industry for observer 
monitoring costs. But this funding mechanism is very different than the 
measure proposed in Amendment 5, and NMFS cannot modify the proposed 
measure to make it consistent with the Anti-deficiency Act.
    As described previously, NMFS has offered to be the technical lead 
on an omnibus amendment to establish the administrative mechanism to 
allow for industry-funded observer coverage in the New England and Mid-
Atlantic FMPs. At its September 2013 meeting, the Council considered 
NMFS's offer and encouraged NMFS to begin development of the omnibus 
amendment. NMFS expects to present a preliminary range of alternatives 
for the omnibus amendment to the New England and Mid-Atlantic Councils 
in early 2014.
    Comment 17: Several commenters expressed concern that waivers are 
not a viable alternative to 100-percent observer coverage and must not 
be allowed to undermine monitoring of the herring fleet. They also felt 
that NMFS must clarify the two-year review process for the 100-percent 
observer coverage requirement to ensure coverage lapses do not occur 
and that 100-percent observer coverage requires both vessels in a pair 
trawl operation to carry an observer. Additionally, commenters 
suggested NMFS should disapprove the ``grandfathering'' of states as 
observer service providers and explicitly require that state service 
providers meet NEFOP standards and protocols, including procedures for 
data sharing and transparency.
    Response: NMFS determined that the proposed measures for waivers, 
the process to review the 100-percent observer coverage requirement, 
and the measure authorizing states as observer service providers were 
inseparable from the 100-percent observer coverage requirement. 
Therefore, NMFS disapproved these proposed measures along with the 100-
percent observer coverage requirement. The Council will likely revisit 
these issues when it reconsiders industry-funded observer coverage in 
the omnibus amendment.
    Comment 18: One commenter supports the disapproval of the 100-
percent observer coverage requirement for the herring fishery because 
observer coverage in the herring fishery is already scientifically 
determined by the SBRM and the costs associated with 100-percent 
observer coverage far outweigh the benefits associated with additional 
data.
    Response: NMFS agrees that observer coverage in the herring fishery 
is currently determined by the SBRM and is sufficient for monitoring 
catch and bycatch in the herring fishery. Increasing observer coverage 
in the herring fishery, through a future action, would provide 
additional data. When the Council reconsiders increasing observer 
coverage in the herring fishery, it will evaluate how the benefits of 
the additional data compare to the economic impacts.
    Comment 19: One commenter supports the proposed 100-percent 
observer coverage requirement for the herring fishery, as well as 
limiting the industry contribution to $325 per day. However, since 
Amendment 5 is not sufficiently developed to establish an industry-
funded observer program, the commenter supports NMFS's recommendation 
to continue the development of an industry-funded observer program in a 
future action. Additionally, the commenter believes that measures 
associated with the 100-percent observer requirement, such as waivers 
and observer service provider requirements, are inseparable from the 
100-percent observer coverage requirement and should not be approved at 
this time.
    Response: NMFS acknowledges the commenter's support for developing 
an industry-funded observer program in a future action and, as 
previously described, expects to present a preliminary range of 
alternatives for the industry-funded observer coverage omnibus 
amendment to the New England and Mid-Atlantic Councils in early 2014.
    Comment 20: Several commenters disagree with language in the 
proposed rule justifying the disapproval of the 100-percent observer 
coverage requirement and slippage caps because Amendment 5 would expand 
at-sea monitoring requirements in the groundfish closed areas. 
Commenters believe that groundfish closed areas do warrant greater 
protection, but robust monitoring of the herring fishery across the 
fishery is critical as well.
    Response: NMFS expressed concern in the proposed rule regarding the 
legality of the 100-percent observer coverage requirement and slippage 
caps, but also explained that those two measures were not the only 
proposed measures in Amendment 5 that would improve monitoring and 
reduce discarding in the herring fishery.
    Analyses in the Amendment 5 FEIS suggest that midwater trawl 
vessels are not catching significant amounts of groundfish either 
inside or outside the groundfish 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, the 
Council believes it is important to determine the extent and nature of 
bycatch in the herring fishery. NMFS approved the 100-percent observer 
coverage and increased sampling requirements for midwater trawl vessels 
fishing in groundfish closed areas because it is a way to incrementally 
increase observer coverage in the herring fishery and increase 
opportunities for improved sampling of herring catch.
    NMFS disapproved the 100-percent observer coverage requirement and 
slippage caps for the herring fishery because NMFS believes those 
measures are inconsistent with the MSA and other applicable law. 
However, despite those disapprovals, the approved measures in Amendment 
5, such as the prohibition on slippage and the released catch affidavit 
requirement, and increased sampling requirements for midwater trawl 
vessels fishing in groundfish closed areas, as well as the ongoing data 
collection by NEFOP, still provide for improved monitoring in the 
herring fishery, increased information regarding discards, and an 
incentive to minimize the discarding of unsampled catch.
    Comment 21: One EAG commented that Amendment 5 fails to consider 
cumulative impacts of ongoing Federal actions, including a future 
amendment to the Herring FMP to consider listing river herring and shad 
as stocks in the fishery, Framework 48 to the Northeast Multispecies 
FMP, and the Omnibus Essential Fish Habitat (EFH) Amendment.
    Response: NMFS disagrees with the comment that Amendment 5 failed 
to consider cumulative impacts of ongoing Federal actions. Section 
6.6.4 of the FEIS describes the impacts of cumulative effects. That 
section describes the future amendment to the Herring FMP to consider 
listing river herring and shad as stocks in the fishery and the Omnibus 
EFH Amendment and

[[Page 8801]]

discusses their potential under reasonably foreseeable future actions. 
Because those actions are still being developed, it is not possible to 
definitively analyze the impacts of those actions until the range of 
alternatives for those amendments has been finalized. Frameworks 48 and 
50 to the Multispecies FMP revised management of the groundfish 
fishery. While groundfish regulations may affect the herring fishery, 
not including Frameworks 48 (revised groundfish sector management) or 
50 (revised groundfish harvest specifications) in the cumulative 
effects section of the FEIS does not invalidate the entire cumulative 
effects analysis, because those actions have minimal impact on 
management of the herring fishery. Framework 48 revised the possible 
list of exemptions for groundfish sectors, including access to 
groundfish closed areas, but a future action would be required to 
consider allowing sectors access to groundfish closed areas. 
Additionally, Framework 50 reduced the amounts of the haddock catch 
caps for the herring fishery, but that reduction is not expected to 
significantly affect the herring fishery because it is minimal.
    Comment 22: One EAG commented that Amendment 5 fails to analyze the 
impacts of an industry-funded observer program.
    Response: NMFS disagrees with the commenter's assertion that 
Amendment 5 failed to analyze the impacts of an industry-funded 
observer program. Section 6.2 of the FEIS analyzes the impacts of an 
industry-funded observer program on herring, non-target species and 
other fisheries, the physical environment and EFH, and fishery-related 
businesses and communities. This analysis focuses on the biological 
impacts of a range of observer coverage levels, the economic impacts of 
the industry paying a range of costs, and the biological and economic 
impacts of observer service provider requirements.
    Comment 23: Several commenters urged NMFS to approve measures 
prohibiting slippage, requiring a released catch affidavit, and 
slippage caps to improve catch monitoring and reduce wasteful 
discarding. They believe slippage caps, and the subsequent trip 
termination provisions, are critical to the effectiveness of catch 
monitoring and bycatch estimation in the herring fishery; are 
consistent with the MSA and other applicable law; and are necessary to 
meet requirements to end overfishing, minimize bycatch, and ensure 
accountability. They believe the proposed caps on the number of 
slippage events (i.e., 10 per gear type and herring management area) 
are a carefully designed expansion of the regulations in place for 
Closed Area I or the requirement to stop fishing in an area when the 
sub-ACL has been harvested, and that the cap amounts are based on 
existing data and set at levels high enough to allow the fleet to avoid 
trip termination, while preventing unlimited slippage. Additionally, 
several commenters believe the trip termination requirement that is in 
effect once a slippage cap had been achieved is reasonable, safe, and 
fair because vessels should return to port when experiencing mechanical 
difficulties or have overloaded vessels.
    Response: NMFS approved measures prohibiting slippage and requiring 
a released catch affidavit for slippage events. NMFS expects that 
prohibiting slippage will help reduce slippage events in the herring 
fishery; thus, improving the quality of observer catch data, especially 
data on bycatch species encountered in the herring fishery. NMFS also 
expects the released catch affidavit to help provide insight into when 
and why slippage occurs. Additionally, NMFS expects that the slippage 
prohibition will help minimize bycatch, and bycatch mortality, to the 
extent practicable in the herring fishery.
    NMFS disapproved the proposed slippage caps, and the associated 
trip termination requirement, because of concerns with the legality of 
the slippage cap. 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. Conversely, vessels responsible for 
slippage events 1 through 10, may continue fishing after the 11th 
slippage event provided they do not slip catch again. NMFS believes 
this aspect of the measure is inequitable. 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, NMFS believes this measure is inconsistent with the MSA 
National Standards 2 and 10 and disapproved it.
    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 
terminate the trip and return to port. Additionally, because the 
consequences of slipping catch apply uniformly to all vessels that slip 
catch under the Closed Area I requirements, or when a closure becomes 
effective in an area where the ACL has been harvested, inequity among 
the fleet is not an issue for the Closed Area I requirements or closure 
measures, like NMFS believes it is for the proposed slippage caps.
    Even though NMFS disapproved the slippage caps, the prohibition on 
slippage, the released catch affidavit, the ongoing data collection by 
NEFOP, and 100-percent observer coverage requirement for midwater trawl 
vessels fishing in groundfish closed areas still allow for improved 
monitoring in the herring fishery, increased information regarding 
discards, and an incentive to minimize discards of unsampled catch.
    Comment 24: NMFS received numerous comments from EAGs that the 
analysis in the FEIS provides a reasonable basis for capping slippage 
events at 10 slippage events by gear (midwater trawl, bottom trawl, 
purse seine) and by herring management area. A number of commenters 
also disagreed with NMFS's statements in the proposed rule that the 
slippage caps may be punitive, unfair, unsafe, or not operationally 
feasible.
    Response: The Amendment 5 FEIS documents that the frequency of 
slippage in the herring fishery is highly variable. During 2008-2011, 
the number of slippage events per year ranged between 35 and 166. The 
annual average number of slippage events by gear type during 2008, 
2009, and 2011 were as follows: 4 by bottom trawl, 36 by purse seine, 
and 34 by midwater trawl. Because the frequency of slippage was not 
consistently analyzed in the FEIS by gear type and management area, 
NMFS believes it difficult to use the analysis in the FEIS to select a 
value for slippage caps by gear type and management area. For example, 
based on the available data for past years, the proposed slippage cap 
would not have affected bottom trawl vessels. On the other hand, it 
might have affected vessels using purse seine and midwater gear if 
slippage events were concentrated in one or two management areas. For 
these reasons, NMFS believes the FEIS does not provide a strong 
operational basis for

[[Page 8802]]

the slippage cap trigger (i.e., 10 slippage events by gear type and 
area).
    Throughout the development of Amendment 5, NMFS identified 
potential concerns with the rationale supporting, and legality of, the 
slippage caps. NMFS highlighted its concerns with these aspects of the 
slippage cap in the proposed rule. As described in the response to the 
previous comment, NMFS believes the inequitable nature of the slippage 
cap, the potential for vessel operators having to choose between trip 
termination and bringing catch aboard despite a safety concern, and the 
potential for inequity among the fleet as a result of the slippage 
caps, render the proposed slippage caps inconsistent with the MSA and 
other applicable law. For these reasons, NMFS disapproved the proposed 
slippage caps.
    Comment 25: One commenter supports the approval of the slippage 
prohibition and the requirement that a released catch affidavit be 
completed if catch is slipped, but they do not support approval of the 
slippage caps. The commenter does not recognize any biological need for 
a slippage cap, and believes the caps would result in a vessels 
operator being forced to choose between trip termination and bringing 
catch aboard, despite a safety concern, which is inconsistent with 
National Standard 10.
    Response: NMFS acknowledges the commenter's support for approval of 
the slippage prohibition and the released catch affidavit requirement. 
NMFS agrees that making the vessel operator choose between trip 
termination and bringing catch aboard despite a safety concern is 
inconsistent with National Standard 10, and that the analysis in the 
Amendment 5 FEIS does not provide compelling evidence for the need for 
or trigger for slippage caps.
    Comment 26: Two commenters believe the proposed measure to prohibit 
slippage, with exceptions for safety concerns, mechanical issues, or 
dogfish preventing pumping, is sufficient to discourage indiscriminate 
discarding of catch and improve monitoring in the herring fishery. They 
also believe the proposed slippage caps violates National Standard 2 
(not based on the best scientific information available) and National 
Standard 10 (lacks any serious consideration of safety) and should not 
be approved.
    Response: NMFS agrees that the slippage prohibition and the 
associated released catch affidavit requirement are expected to provide 
a strong incentive to minimize the discarding of unsampled and 
increased information regarding discards. As described previously, NMFS 
agrees with the commenter that the proposed slippage caps are 
inconsistent with National Standards 2 and 10.
    Comment 27: Several commenters believe that the Council's 
modifications to the slippage cap, specifically the three-fold increase 
to the trigger for the slippage cap (trigger increased from 10 events 
to 10 events by gear type and area) and exempting slippage events due 
to excess catch of spiny dogfish from counting against the caps, 
addressed both the industry's and NMFS's concerns with safety and 
fairness.
    Response: One of NMFS' primary concerns with the proposed slippage 
cap is safety. Even though the Council modified the slippage cap, 
slippage events resulting from situations when (1) bringing catch 
aboard compromises the safety of the vessel, and/or (2) mechanical 
failure prevents the catch from being brought aboard, would have still 
counted against the slippage cap. So while the Council's modification 
to the slippage catch helped reduce the potential for a safety risk, 
NMFS believes the proposed slippage cap is still inconsistent with 
National Standard 10.
    NMFS is also concerned with fairness of the proposed slippage cap 
because the consequences to individual vessels of slipping catch have 
the potential to be inequitably applied. 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. Conversely, vessels responsible for 
slippage events 1 through 10 may continue fishing after the 11th 
slippage event, provided they do not slip catch again. The Council's 
modification to the amount of the trigger for the slippage cap does not 
address NMFS's concern that the consequences of slipping catch do not 
uniformly apply across the fleet to vessels that slip catch.
    Comment 28: One commenter is concerned that there are inconsistent 
and misleading statements in the FEIS regarding the need for additional 
goals, objectives, and standards for an industry-funded observer 
program. The commenter believes that Amendment 5 contains a 
comprehensive set of goals and objectives for the fishery and its 
monitoring program and that no further development of goals and 
objectives are needed. Additionally, with respect to standards for 
observer service providers, the commenter believes that the amendment 
is clear that NEFOP standards would apply to observer service 
providers.
    Response: The Amendment 5 FEIS does contain goals and objectives 
for an industry-funded observer program. However, NMFS determined that 
the proposed measures for observer service provider requirements were 
inseparable from the 100-percent observer coverage requirement. 
Therefore, these proposed measures were disapproved along with the 100-
percent observer coverage requirement. The Council will likely revisit 
these issues when it considers the industry-funded observer coverage 
omnibus amendment.
    Comment 29: One commenter believes that measures to improve at-sea 
sampling proposed for limited access herring vessels should also be 
applied to open access vessels (Categories D and E). Additionally, the 
requirement for limited access vessels to provide an observer with 
visual access to the codend or purse seine after pumping has ended is a 
loophole to avoid bringing fish on aboard.
    Response: When developing Amendment 5, the Council considered 
applying measures to improve at-sea sampling, such as increased 
observer coverage, requirements to help improve at-sea sampling, and 
prohibiting slippage, to Category D vessels. However, because Category 
D vessels catch such a small percentage of total herring harvest (less 
than 2 percent), the Council recommended that compliance burden 
associated with the new at-sea sampling requirements in Amendment 5 
only apply to the vessels that harvest the majority of the herring. 
NMFS can only approve or disapprove measure in Amendment 5; it cannot 
change or modify measures in Amendment 5.
    Regarding Category E vessels, Amendment 5 does not consider whether 
Category E permits would be subject to the same catch monitoring 
requirements as limited access vessels. When describing or analyzing 
catch monitoring requirements, Amendment 5 does not describe extending 
catch monitoring requirements for limited access vessels to Category E 
vessels, nor does it analyze the impacts of catch monitoring 
requirements on Category E vessels. Because the limited access catch 
monitoring requirements were not discussed or analyzed in relation to 
Category E vessels, this action does not extend those catch monitoring 
requirements to Category E vessels.
    Amendment 5 prohibits slippage, and NMFS expects that this 
prohibition will reduce the discarding of unsampled catch. However, the 
pumps and hoses that remove fish from the codend and bring it aboard 
the vessel are not able to pump aboard every last fish out of the 
codend or purse seine. If vessels are not able to bring codends/purse 
seines aboard the vessel after pumping is completed, the requirement 
that vessels

[[Page 8803]]

must provide the observer with visual access to codend/purse seine, and 
any of its contents after pumping has ended is intended to help the 
observer document what, if any, catch remains in the codend/purse seine 
after pumping.
    Comment 30: Several commenters support proposed measures requiring 
limited access herring vessels to provide observer with: (1) Safe 
sampling stations, (2) reasonable assistance, (3) notification of 
pumping and sampling, (4) visual access to codend or purse seine, and 
(5) estimated weight of catch and discard.
    Response: NMFS recognizes the commenters' support for these 
measures, and believes these measures will help improve monitoring in 
the herring fishery.
    Comment 31: One commenter believes that Amendment 5 should require 
vessels pair trawling together to both carry observers, as this would 
be a simple measure to prevent catch from being pumped to a vessels 
without an observer and, therefore, not be available for sampling.
    Response: NEFOP randomly assigns observers to herring vessels 
consistent with SBRM coverage requirements to optimize sampling of the 
herring fishery. If NEFOP desires to place observers on both vessels in 
a pair trawl operation, then it can do so. The Council will be 
considering a 100-percent observer coverage requirement for the herring 
fishery in the observer-funding omnibus amendment. Until then, NEFOP 
will continue to assign observers to herring vessels in order to best 
meet SBRM requirements.

4. Comments on Measures To Address River Herring Interactions

    Comment 32: Some commenters urged NMFS to promptly implement 
Framework 3 to the Herring FMP, which would develop and implement 
herring and shad catch caps. They disagree with NMFS's statement in the 
proposed rule that a catch cap developed in a framework cannot be 
implemented prior to the implementation of Amendment 5, stating that 
the authority to set incidental catch caps in the herring fishery was 
established through Amendment 1 to the Herring FMP.
    Response: Amendment 1 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, while Amendment 1 does not specifically consider or analyze 
bycatch measures or catch caps for river herring. On the basis of the 
explicit consideration of a river herring catch cap and the 
accompanying analysis in Amendment 5, NMFS 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.
    While Amendment 5 contains preliminary analysis of a river herring 
catch cap, 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 is necessary prior to implementation. Therefore, it 
is more appropriate to consider implementing a river herring catch cap 
through a framework, rather than through the specifications.
    At its June 2013 meeting, the Council discussed the development of 
river herring catch caps in Framework 3 to the Herring FMP. The Council 
considered establishing catch caps by area and gear, as well as 
establishing catch caps for both river herring and shad. While 
Amendment 5 does not explicitly consider catch caps for shad, river 
herring and shad are closely related species and the nature of their 
encounters with the herring fishery are similar. Therefore, 
implementing a catch cap that applies to both river herring and shad is 
likely a natural extension of the catch cap considered in Amendment 5, 
and Framework 3 would specifically evaluate the technical merits of 
developing a shad catch cap for the herring fishery. At its September 
2013 meeting, the Council took final action on Framework 3 and 
recommended establishing river herring and shad catch caps for midwater 
and bottom trawl gear in the herring fishery. Framework 3, if approved, 
is expected to be implemented in the spring or summer of 2014.
    Comment 33: The Council clarified that the ability to establish 
catch caps for river herring was intended to also apply to shad. The 
FEIS for Amendment 5 contains life history, stock status, and state 
fishery information for shad, as well as analysis on the co-occurrence 
of river herring and shad and the potential impacts of Amendment 5 
measures to address fishery interactions with both river herring and 
shad.
    Response: Given the similar life histories of river herring and 
shad, and that both are encountered in the herring fishery, 
establishing catch caps would apply to both river herring and shad is 
likely a natural extension of the catch cap considered in Amendment 5. 
However, Amendment 5 was not explicit that river herring catch caps 
would apply to shad; therefore, the analysis in Framework 3 will need 
to more fully explain and support establishing catch caps for both 
river herring and shad.
    Comment 34: Several commenters expressed support for establishing 
catch caps for river herring and shad catch caps as quickly as 
possible. Additionally, some stressed that NMFS must assist the Council 
in developing and implementing these catch caps as they are the only 
regulatory measure in Amendment 5 that will satisfy the MSA's 
requirement to minimize bycatch to the extent practicable and address 
the Court-ordered remedy for Amendment 4 to the Herring FMP.
    Response: NMFS is supporting the Council in its efforts to 
establish river herring/shad catch caps for the Atlantic herring 
fishery. The Council developed Framework 3 to consider establishing 
river herring and shad catch caps for the herring fishery. The Council 
discussed a range of catch cap alternatives on June 18, 2013, and voted 
to adopt measures in Framework 3 on September 26, 2013. The Council 
recommended a combined river herring/shad catch cap (based on the 
median of historical catch) for the herring fishery, specifically for 
mid-water trawl gear in the Gulf of Maine, mid-water trawl gear in the 
Cape Cod area, and for both bottom and mid-water trawl gears in 
Southern New England. Council staff is currently finalizing Framework 
3, and its accompanying environmental assessment, and submitted it to 
NMFS for review in January 2014. If approved, NMFS expects to implement 
river herring/shad catch caps for the herring fishery in 2014.
    Based on the ASMFC's recent river herring and shad assessments, 
data are not robust enough to determine a biologically based river 
herring/shad catch cap and/or assess the potential effects on river 
herring/shad populations of such a catch cap on a coast-wide scale. 
However, both the Council and NMFS believe catch caps would provide a 
strong incentive for the herring industry to continue avoiding river 
herring and shad and reduce river herring and shad bycatch to the 
extent practicable.
    NMFS disagrees that the river herring/shad catch caps are the only 
measure in Amendment 5 that will satisfy the MSA's requirement to 
minimize bycatch to the extent practicable. Rather, Amendment 5 
implements several measures that address bycatch in the herring 
fishery: (1) Prohibiting catch from being discarded prior to sampling

[[Page 8804]]

by an at-sea observer (known as slippage), with exceptions for safety 
concerns, mechanical failure, and spiny dogfish preventing catch from 
being pumped aboard the vessel, and requiring a released catch 
affidavit to be completed for each slippage event; (2) expanding at-sea 
sampling requirements for all midwater trawl vessels fishing in 
groundfish closed areas; (3) establishing a new open access permit to 
reduce the potential for the regulatory discarding of herring in the 
mackerel fishery; (4) establishing the ability to consider a river 
herring catch cap in a future framework; (5) establishing River Herring 
Monitoring/Avoidance Areas; (6) evaluating the ongoing bycatch 
avoidance program investigation of providing real-time, cost-effective 
information on river herring distribution and fishery encounters in 
River Herring Monitoring/Avoidance Areas; and (7) expanding and adding 
reporting and sampling requirements designed to improve data collection 
methods, data sources, and applications of data to better determine the 
amount, type, disposition of bycatch. NMFS believes these measures 
provide incentives for bycatch avoidance and will allow NMFS to gather 
more information that may provide a basis for future bycatch avoidance 
or bycatch mortality reduction measures. These measures are supported 
by sufficient analysis and consideration of the best available 
scientific information and represent the most practicable bycatch 
measures for the Herring FMP based on this information at this time.
    Comment 35: Several commenters urged disapproval of the voluntary 
program investigating river herring distribution and fishery encounters 
because they believe as a voluntary program, it has no place in a 
regulatory action and will not satisfy the MSA's requirement to 
minimize bycatch to the extent practicable.
    Response: NMFS disagrees with the commenter's assertion that the 
program has no place in a regulatory action and will not satisfy the 
MSA's requirement to minimize bycatch to the extent practicable. As 
described previously, Amendment 5 contains several measures that 
address bycatch in the herring fishery. While the voluntary program for 
river herring monitoring and avoidance does not currently include 
regulatory requirements, NMFS believes the program, along with the 
Council's formal evaluation of the program, has the potential to help 
vessels avoid river herring during the fishing season and to gather 
information that may help predict and prevent future interactions. 
Additionally, as described previously, NMFS believes Amendment 5 
establishes several measures that minimize bycatch, provide incentives 
for bycatch avoidance, and will allow NMFS to gather more information 
that may provide a basis for future bycatch avoidance or bycatch 
mortality reduction measures. These measures are supported by 
sufficient analysis and consideration of the best available scientific 
information and represent the most practicable bycatch measures for the 
Herring FMP based on this information at this time.
    Comment 36: Several commenters support: Amendment 5 establishing 
River Herring Monitoring/Avoidance Areas, although some caution that 
this measure does not satisfy the MSA National Standard 9 requirements; 
Amendment 5 establishing River Herring Protected Areas; and the 
approval of a prohibition on fishing in River Herring Monitoring/
Avoidance Areas without a NMFS-approved observer.
    Response: Amendment 5 establishes River Herring Monitoring/
Avoidance Areas and NMFS acknowledges the commenters' support for that 
measure. As described previously, Amendment 5 contains several 
measures, including establishing River Herring Monitoring/Avoidance 
Areas, that address the MSA's requirement to minimize bycatch to the 
extent practicable.
    Amendment 5, as adopted by the Council, does not propose 
establishing River Herring Protection Areas, instead it proposes 
establishing River Herring Monitoring/Avoidance Areas. The Council 
considered establishing River Herring Protection Areas but instead 
choose to recommend River Herring Monitoring/Avoidance Areas and the 
development of a river herring catch cap to advance the goal of river 
herring monitoring by providing the industry with incentives to develop 
their own methods to minimizing river herring bycatch. Because NMFS 
cannot approve and implement measures that are not proposed in 
Amendment 5, it cannot approve and implement River Herring Protection 
Areas.
    The proposed measure to require vessels to carry a NMFS-approved 
observer when fishing in the River Herring Monitoring/Avoidance Areas 
was part of the Suite of measures proposing to require 100-percent 
observer coverage and an industry contribution of $325 per day on 
Category A and B vessels. As described previously, NMFS disapproved 
that proposed 100-percent observer coverage measure because the measure 
was not sufficiently developed to avoid conflicting with the 
Antideficiency Act and amounted to an unfunded mandate. NMFS believes 
the Suite of proposed measures associated with the 100-percent observer 
coverage requirement are inseparable from the 100-percent observer 
coverage requirement; therefore, NMFS had to disapprove those measures 
too. The Council will likely revisit observer coverage in the herring 
fishery when it considers the industry-funded observer coverage omnibus 
amendment.
    Comment 37: One commenter supports the approval of the ongoing, 
voluntary program investigating river herring encounters in the herring 
fishery so that the fleet can be alerted to areas with concentrations 
of river herring in real time and move away from those areas. Some 
commenters support the voluntary program because it helps address the 
requirement to minimize bycatch to the extent practicable. One 
commenter does not support establishing River Herring Monitoring/
Avoidance Areas because they believe the measure conflicts with the 
ongoing avoidance program and that the measure may be used to prohibit 
herring fishing in certain areas.
    Response: NMFS agrees with the commenter who stated that the 
ongoing program can help the fleet recognize and avoid areas with high 
concentrations of river herring, thereby helping to minimize bycatch in 
the herring fishery. This action allows for a comprehensive Council 
evaluation of the ongoing, voluntary river herring avoidance program. 
As part of that evaluation, the Council can consider adjustments to the 
River Herring Monitoring/Avoidance Areas and whether measures 
associated with the River Herring Monitoring/Avoidance Areas, or the 
areas themselves, conflict with the river herring avoidance program.
    Comment 38: Two commenters expressed concern with establishing 
River Herring Monitoring/Avoidance Areas. Their concerns were based on 
the ability to obtain/fund increased observer coverage in these areas 
and the potential for redundancy with river herring catch caps. One 
commenter recommended that coverage levels for these areas not be 
established in this action and that NMFS delay in defining these areas 
until river herring catch caps are established.
    Response: NMFS believes that River Herring Monitoring/Avoidance 
Areas and the river herring catch caps serve complementary purposes in 
management of the herring fishery and are not redundant. However, 
modifications to both River Herring

[[Page 8805]]

Monitoring/Avoidance Areas and river herring catch caps can be 
considered through the specifications and/or a framework adjustment. If 
these measures become duplicative, they can be modified in a future 
action.
    Because the proposed requirement for observer coverage in River 
Herring Monitoring/Avoidance Areas is inseparable from the disapproved 
100-percent observer coverage measure, no required level of observer 
coverage for River Herring Monitoring/Avoidance Areas is established in 
this action. The Council will likely revisit observer coverage in the 
herring fishery when it considers the industry-funded observer coverage 
omnibus amendment.
    Comment 39: One commenter supports the measure that would establish 
a river herring catch cap through a future framework, and believes that 
establishing a catch cap may improve the performance of the voluntary 
river herring avoidance program.
    Response: This action allows a river herring catch cap to be 
established through a future framework. Establishing a catch cap may 
improve the performance of the river herring avoidance program by 
providing a strong incentive to avoid and reduce river herring bycatch 
to the extent practicable. The Council is expected to evaluate the 
interaction between catch caps and the avoidance program when it 
formally evaluates the avoidance program.
    Comment 40: One commenter supports Amendment 5 establishing a 
mechanism to consider regulatory requirements for a byatch avoidance 
strategy in a future action.
    Response: This action establishes a mechanism to develop, evaluate, 
and consider regulatory requirements for a river herring bycatch 
avoidance stategy. Additionally, this action establishes River Herring 
Monitoring/Avoidance Areas that will likely help support any future 
considerations of river herring bycatch avoidance strategies.

5. Comments on Measures To Address Midwater Trawl Access to Groundfish 
Closed Areas

    Comment 41: Many commenters recommended that NMFS approve measures 
expanding the at-sea monitoring of midwater trawl vessels fishing in 
groundfish closed areas, including 100-percent observer coverage and 
Closed Area I sampling requirements, to improve catch monitoring in the 
herring fishery. Additionally, some commenters recommended that 
expanded at-sea monitoring requirements for midwater trawl vessels 
fishing in groundfish closed areas should also apply to vessels with 
the new Areas 2/3 Open Access Permit (Category E).
    Response: This action expands at-sea monitoring requirements to all 
herring vessels fishing with midwater trawl gear in groundfish closed 
areas, regardless of permit type, consistent with the commenters' 
recommendations.
    Comment 42: One EAG urges NMFS to keep at-sea monitoring 
requirements in place for midwater trawl vessels fishing in the 
groundfish closed areas under the Omnibus EFH Amendment 2 or any 
changes to the groundfish closed areas under the Northeast Multispecies 
FMP, unless and until such actions explicitly change the herring vessel 
access requirements and fully analyzes the impacts of those changes.
    Response: The Council's intent for measures specifying midwater 
trawl access to groundfish closed areas was that those measures would 
be dynamic and evolve as requirements and restrictions in the 
groundfish closed areas evolved. If other Council actions modify 
requirements and/or restrictions for groundfish closed areas, those 
actions will consider modifications to the measures in this action 
implementing requirements for midwater trawl access to groundfish 
closed areas. If the Council considers changes to the measures 
implemented in this action, the action considering the changes would 
fully analyze the impacts of those changes.
    Comment 43: Some commenters believe the relatively low amount of 
groundfish bycatch in groundfish closed areas does not warrant 
expanding at-sea sampling requirements for midwater trawlers. 
Commenters recognize that midwater trawl vessels do catch haddock, but 
they believe the catch of haddock in the herring fishery is already 
managed through a haddock catch cap. Additionally, one commenter is 
concerned that NMFS does not have adequate resources to place observers 
on all trips to Groundfish Closed Area 1, that expanding those at-sea 
monitoring requirements to all groundfish closed areas would further 
dilute available funds, and that it would be impracticable for NMFS to 
implement additional observer coverage requirements without additional 
funding.
    Response: The Council and NMFS both believe it is important to 
better understand the nature of catch, including directed catch, 
bycatch, and incidental catch, in the herring fishery. As a way to 
improve that understanding, this action incrementally expands the at-
sea monitoring requirements, including a 100-percent observer coverage 
requirement, to midwater trawl vessels fishing in groundfish closed 
areas.
    Expanding the Closed Area I sampling requirement to midwater trawl 
vessels fishing in groundfish closed areas provides a greater source of 
information regarding the nature and extent of incidental catch and 
bycatch in the herring fishery. This measure also addresses perceived 
inequities expressed by many stakeholders during development of 
Amendment 5 regarding allowing gear that is capable of catching 
groundfish into the groundfish closed areas. This action still allows 
the midwater trawl fishery to operate in the groundfish closed areas, 
but ensures that monitoring and sampling are maximized, based on 
measures that already have proven to be effective in Closed Area I.
    Under current practice, as well as under the proposed revisions to 
the SBRM that are being developed, the NEFSC would allocate all 
existing and specifically identified observer funding to support SBRM 
observer coverage. Therefore, herring vessels would be assigned 
observers based on SBRM coverage, including trips by midwater trawl 
vessels into the groundfish closed areas. All trips by midwater trawl 
vessels into the groundfish closed areas would have observer coverage, 
thereby increasing observer coverage in the groundfish closed areas. 
But until there is additional funding available, the number of trips 
midwater trawl vessels can make into the groundfish closed areas would 
be limited by SBRM funding. Additional observer coverage specifically 
for midwater trawl trips into the groundfish closed areas would be 
possible after SBRM monitoring is fully funded or if funds are 
specifically appropriated for such trips.
    If a midwater trawl vessel cannot fish in the groundfish closed 
areas on a particular trip because an observer is not assigned to that 
trip, any negative economic impact to that vessel is expected to be 
minimal. Analyses in the FEIS indicate that less than 10-percent of 
herring fishing effort occurs in the groundfish closed areas and less 
than 13-percent of the annual herring revenue comes from trips into the 
groundfish closed areas. Midwater trawl vessels will still have access 
to the groundfish closed areas during SBRM covered trips, even if there 
are less SBRM covered trips than in years past. Additionally, midwater 
trawl vessels can fish outside the groundfish closed areas without an 
observer.
    NMFS agrees that analyses in the Amendment 5 FEIS suggest that

[[Page 8806]]

midwater trawl vessels are not incidentally catching significant 
amounts of groundfish either inside or outside the groundfish closed 
areas. Additionally, NMFS agrees that 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. 
However, this action expands at-sea monitoring requirements to midwater 
trawl vessels fishing in all groundfish closed areas because it will 
allow the midwater trawl fishery to continue to operate in the 
groundfish closed areas, while ensuring that opportunities for 
monitoring and sampling are maximized.
    Comment 44: Several commenters urged disapproval of the measure 
expanding at-sea sampling of midwater trawl vessels fishing in 
groundfish closed areas and, instead, recommended that the use of 
midwater trawl gear in groundfish closed areas be prohibited.
    Response: As described previously, this action expands at-sea 
monitoring requirements to midwater trawl vessels fishing in all 
groundfish closed areas because it will ensure that opportunities for 
monitoring and sampling are maximized while still allowing the midwater 
trawl fishery to continue to operate in the closed areas. Because a 
measure to prohibit midwater trawl gear in groundfish closed areas was 
not recommended by the Council as part of Amendment 5, it cannot be 
implemented as part of this action.

6. Comments on Adjustments to List of Measures Modified Through 
Framework Adjustments or Specifications

    Comment 45: Two EAGs commented that NMFS should modify the list of 
items that could be developed through a framework or specifications 
package to exclude observer coverage levels, stating that modifying 
observer coverage levels through a framework or the specifications was 
not contemplated in the DEIS for Amendment 5.
    Response: NMFS believes the DEIS does contemplate modifying 
observer coverage levels through a framework adjustment. Section 3.5 of 
the DEIS for Amendment 5 explained that, if any new management measures 
are adopted in Amendment 5, changes to those measures and related 
adjustments would be added to the list of measures that can be 
implemented through a framework adjustment to the Herring FMP in the 
future. Additionally, the DEIS explained that the public should 
consider whether or not any of the new measures proposed in Amendment 5 
should be allowed to be modified in the future through a framework 
adjustment. The DEIS explained that for the FEIS, the list of measures 
would be based on the management measures adopted by the Council.
    As part of Amendment 5, the Council adopted two measures specifying 
observer coverage levels, the 100-percent observer coverage requirement 
for Category A and B vessels, and the 100-percent observer coverage 
requirement for midwater trawl vessels fishing in the groundfish closed 
areas. Because the Council adopted observer coverage levels as part of 
Amendment 5, observer coverage levels were added to the list of 
measures in the FEIS that could be modified through a framework 
adjustment when appropriate.
    While NMFS approved, and this action implements, the 100-percent 
observer coverage requirement for midwater trawl vessels fishing in the 
groundfish closed areas, NMFS disapproved the 100-percent observer 
coverage requirement for Category A and B vessels. The Council is 
expected to revisit the issue of specifying observer coverage levels 
outside of groundfish closed areas in the NMFS-led observer-funding 
omnibus amendment starting in January 2014. Therefore, at this time, 
NMFS concurs with the commenters, and believes it is not appropriate to 
include observer coverage levels outside of groundfish closed areas in 
the list of measures that could be modified through a framework.
    Comment 46: One commenter supports modifying the list of measures 
that could be modified through a framework to only include: (1) Changes 
to vessel trip notification and declaration requirements; (2) 
provisions for river herring bycatch avoidance program; and (3) river 
herring catch caps. They believe these measures should be changed 
through a framework, and not the specifications, because the framework 
process is a more deliberative way to make substantive changes to 
management of the herring fishery.
    Response: This action allows for modifications to vessel trip 
notification and declaration requirements, provisions for the river 
herring bycatch avoidance program, and river herring catch caps to be 
made through a framework when appropriate. Additionally, it allows for 
modifications to river herring catch caps to be made through the 
specifications process. The ability to modify river herring catch caps, 
especially the amount of catch caps, through the specifications process 
is necessary to ensure catch caps are based on the best available data 
and that catch caps are revisited and modified, if necessary, as 
frequently as other specifications for the herring fishery.

Changes From the Proposed Rule

    The proposed rule for Amendment 5 contained all the measures in the 
amendment that were adopted by the Council in June 2012. As described 
previously, the proposed rule highlighted NMFS's utility and legal 
concerns with three measures adopted by the Council. NMFS disapproved 
the 100-percent observer coverage measure coupled with a $325 per day 
industry contribution, slippage cap, and dealer reporting requirements, 
thus, the regulatory requirements associated with those three measures 
are not included in this final rule. Specifically, the following 
sections from the proposed rule have been removed: Sec. Sec.  
648.11(h), 648.11(l)(5), 648.14 (r)(2)(xiii), 648.200(g)(5), 
648.203(c), and 648.206(b)(33) and (b)(34) and are not being 
implemented in this rule. Additionally, proposed Sec.  648.206(b)(32) 
was revised to remove provisions related to the slippage cap.
    The proposed rule stated that herring carriers were only permitted 
to transport herring. This final rule clarifies that requirement and 
specifies that herring carriers are permitted to transport herring and 
certain groundfish species, including haddock and up to 100 lb (45 kg) 
of other regulated groundfish species, consistent with current 
groundfish regulations. Additionally, to ensure consistency with other 
Northeast Region VMS requirements, the final rule clarifies that once a 
vessel declares a herring carrier trip via VMS, it is bound to VMS 
operating requirements for the remainder of the fishing year.
    To avoid confusion, this final rule standardizes the title of the 
affidavit required when catch is slipped by midwater trawl vessels 
fishing in groundfish closed areas in both the Northeast multispecies 
and herring regulations. It is now called a released catch affidavit. 
Lastly, this final rule clarifies that (1) Fish that cannot be pumped 
and remain in the codend or seine at the end of pumping operations are 
considered to be operational discards and not slippage and (2) discards 
that occur after the catch is brought on board and sorted are also not 
considered slippage.

Classification

    The Administrator, Northeast Region, NMFS, determined that 
Amendment 5 to the Herring FMP is necessary for the conservation and 
management of the herring fishery and that it is consistent with the 
MSA and other applicable laws.

[[Page 8807]]

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared a FEIS for Amendment 5; a notice of 
availability was published on April 26, 2013 (78 FR 24743). The FEIS 
describes the impacts of the proposed measures on the environment. 
Revisions to fishery management program provisions, including 
permitting provisions, vessel notification requirements, and measures 
to address carrier vessels and transfers at-sea are expected to improve 
catch monitoring in the herring fishery, with positive biological 
impacts on herring and minimal negative economic impacts on fishery 
participants. Measures to improve at sea-sampling by observers and 
minimize the discarding of catch before it has been sampled by 
observers are also expected to improve catch monitoring and to have 
positive biological impacts on herring. The economic impacts on fishery 
participants of these measures are varied, but negative economic 
impacts are expected to be moderate compared to status quo. Measures to 
address bycatch are expected to have positive biological impacts and 
moderate negative economic impacts on fishery participants. Lastly, all 
measures are expected to have positive biological impacts on non-target 
species and neutral impacts on habitat. In partially approving 
Amendment 5 on July 18, 2013, NMFS issued a record of decision (ROD) 
identifying the selected alternatives. A copy of the ROD is available 
from NMFS (see ADDRESSES).
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by public comments in response 
to the IRFA, NMFS's responses to those comments, and a summary of the 
analyses to support this action. A copy of this analysis is available 
from the Council or NMFS (see ADDRESSES) or via the Internet at http://www.nero.noaa.gov.

Statement of Need

    This action helps improve monitoring and addresses bycatch issues 
in the herring fishery through responsible management. A description of 
the action, why it was considered, and the legal authority for the 
action is contained elsewhere in this preamble and is not repeated 
here.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    NMFS received 8,163 comments during the comment periods on the NOA 
and proposed rule. Those comments, and NMFS' responses, are contained 
elsewhere in this preamble and are not repeated here. NMFS did not 
receive any comments focused solely on the economic impacts of this 
rule.

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

    The Office of Advocacy at the Small Business Administration (SBA) 
suggests two criteria to consider in determining the significance of 
regulatory impacts: Disproportionality and profitability. The 
disproportionality criterion compares the effects of the regulatory 
action on small versus large entities (using the SBA-approved size 
definition of ``small entity''), not the difference between segments of 
small entities. The changes in profits, costs, and net revenues due to 
Amendment 5 are not expected to be disproportional for small versus 
large entities, as the proposed action will affect all entities, large 
and small, in a similar manner. Therefore, this action is not expected 
to have disproportionate impacts or place a substantial number of small 
entities at a competitive disadvantage relative to large entities.
    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 2,149 vessels with open access herring permits (Category D) 
would be considered small entities for Regulatory Flexibility Act (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. The regulatory definitions are primarily 
administrative in nature; however they may reduce confusion and/or 
errors related to catch reporting. Additionally, currently, there are 
no Category D vessels that fish with midwater trawl gear. 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.
    Subsequent to completing the IRFA for Amendment 5, on June 20, 
2013, the SBA issued a final rule revising the small business size 
standards for several industries effective July 22, 2013 (78 FR 37398, 
June 20, 2013). The rule increased the size standard for Finfish 
Fishing from $4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0 
million, and Other Marine Fishing from $4.0 to $7.0 million. Therefore, 
this FRFA contains updated permit information consistent with SBA's 
revised size standards. NMFS reviewed the analyses prepared for this 
action in light of the new size standards. Under the former, lower size 
standards, 91 entities subject to this action were considered small 
entities. These entities would all continue to be considered small 
under the new size standards. However, using more recent permit 
information, the number of entities that would be considered small 
under SBA's revised size standards decreased between 2011 and 2012.
    Based on more recent permit information, NMFS has now identified 70 
entities (compared to 91 in the original analysis) that held at least 
one limited access herring permit (category A, B, or C) in 2012. Many 
of these entities were active in both finfish fishing and shellfish 
fishing industries. In order to make a determination of size, fishing 
entities are first classified as participants in either the Finfish 
Fishing or Shellfish Fishing industry. If an entity derives more than 
50 percent of its gross revenues from shellfish fishing, the $5.0-
million standard for total revenues is applied. If an entity derives 
more than 50 percent of its gross revenues from finfish fishing, the 
$19.0-million standard for total revenues is applied. Based on the 
revised economic criteria, as well as updated permit and revenue data, 
there are 7 large shellfish fishing entities to which this final rule 
will apply and 63 small entities to which this final rule will apply.
    Of the 63 small entities, 39 reported no revenue from herring 
fishing during 2012. For the 24 small entities that were active in the 
herring fishery, median gross revenues were approximately $872,000, and 
median revenues from the herring fishery were approximately $219,000. 
There is large variation in the importance of herring fishing for these 
small entities. Eight of these 24 active small entities derive less 
than 5 percent of their total fishing revenue from

[[Page 8808]]

herring. Seven of these 24 active small entities derive more than 95 
percent of their total fishing revenue from herring.
    Amendment 5 establishes measures to improve catch reporting and 
address bycatch. These measures primarily affect limited access herring 
vessels, the component of the herring fleet that harvests approximately 
98-percent of the available herring harvest. After considering the new 
permit information and the new SBA size standards, NMFS still believes 
that the proposed action would affect all entities, whether large or 
small, in a similar manner because measures in Amendment 5 apply 
similarly across the limited access herring fleet.
    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 final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) which have been approved 
by the Office of Management and Budget (OMB) under control number 0648-
0674. The new requirements, which are described in detail in the 
preamble, were approved as a new collection. Amendment 5 also removes a 
VMS power-down exemption for herring vessels and a catch reporting 
requirement for herring carrier vessels. Amendment 5 prohibits 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 
removes the existing weekly VTR requirement for herring carrier 
vessels. That requirement was approved under OMB Control Number 0648-
0212 and, upon renewal, will be removed from that information 
collection. The action does not duplicate, overlap, or conflict with 
any other Federal rules.
    Amendment 5 establishes 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 $0.46 to mail. The new Areas 2/3 Open 
Access Herring Permit requires the vessel to purchase and maintain a 
VMS. Because other Northeast Federal permits require vessels to 
maintain a VMS, it is estimated that only six vessels that were issued 
the current open access permit, which is re-named the All Areas Open 
Access Permit as part of this action, 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 $0.46 
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 annual 
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 
for a vessel to purchase and maintain a VMS is estimated to be 35 min 
and $4,530.
    Amendment 5 also requires 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 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 will 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 $0.46 to equal $18. The VTR is 
estimated to take 5 min to complete. Therefore, the total annual burden 
of weekly VTRs is estimated to be $18, and 3 hr and 20 min.
    This action establishes 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 $0.46 to mail. The 
annual burden to renew an At-Sea Herring Dealer Permit is estimated to 
be 5 min to complete the renewal, and $0.46 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 is 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 expands the number of herring vessels required to 
submit a VMS pre-landing notification and adds a gear declaration to 
the existing VMS activity declaration requirement. A subset of herring 
vessels are currently required to notify NMFS Office of Law Enforcement 
(OLE) via VMS at least 6 hr prior to landing, and this action expands 
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 will 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 for a 
Category C vessel making VMS pre-landing notifications is estimated to 
be 65 min and $13. The new Category E vessels will take an estimated 5 
trips per year, so the total burden for a Category E vessel making VMS 
pre-landing notifications is estimated to be 25 min and $5. Herring 
carriers are estimated to take an average of 4 trips per year, so the 
total annual burden for a herring carrier making VMS pre-landing 
notifications is estimated to be 20 min and $4. The gear declaration 
applies to limited access herring vessels. There is no additional 
reporting burden associated with the gear declaration because it is 
only adding an additional field to the existing VMS activity 
declaration requirement, approved under OMB 0648-0202.
    Amendment 5 allows vessels to choose between enrolling as a herring

[[Page 8809]]

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 is 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 increases 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 expands 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 will 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 requires 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 is estimated to be 2 hr 30 min.
    Amendment 5 requires a released catch affidavit for limited access 
vessels that discard catch before the catch has 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 ($0.46). The 
affidavit requirement affects 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 is estimated to be 3 
hr 10 min and $17. Amendment 5 requires vessels fishing with midwater 
trawl gear in Groundfish Closed Areas to complete 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 requires that when vessels issued limited access 
herring permits are working cooperatively in the 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. It would not have any associated cost, since it 
would be a verbal notification for the observer to record.
    Send comments regarding these burden estimates or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to NMFS (see ADDRESSES), and by email to [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.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

1. Adjustments to the Fishery Management Program
    Amendment 5 revises several existing fishery management provisions, 
such as regulatory definitions and VMS requirements, and establishes 
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 selected 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 the selected action relative to the 
no action alternative is anticipated to have a neutral or low positive 
economic impact on fishery-related businesses and communities. For this 
reason, the no action alternative was rejected for each of these 
provisions. Revising the regulatory definitions for transfer at-sea and 
offload for the herring fishery may reduce 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 may help ensure safe sampling and improve the quality of 
monitoring data. 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 
are 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 may make provisions for 
herring vessels more consistent with other FMPs and enhance enforcement 
of the herring regulations. Lastly, establishing the mechanism to 
consider a river herring catch cap in a future framework may be a 
potential way to minimize river herring catch in the herring fishery.
    Amendment 5 allows herring carriers 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 or groundfish. The LOA has a minimum enrollment period of 7 
days.
    In addition to the selected 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 selected action and the non-selected alternative would 
provide increased operational flexibility at the trip level as compared 
to the no

[[Page 8810]]

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 selected 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 selected action would 
both have the potential for low positive benefits from allowing trip-
by-trip planning. In comparison to the selected 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 selected 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. Because the no action and non-selected alternatives are 
expected to have a net negative impact, they were rejected.
    Amendment 5 requires 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 to: (1) 
Better inform NEFOP of when/where herring fishing activity may occur 
and assist in the effective deployment of observers; (2) 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) 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 selected 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 selected action would be through increased 
administrative and regulatory burden, but the number of vessels 
affected and the actual cost of the additionally reporting is low. In 
comparison to the no action alternative, the selected 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. For this reason, the no action 
alternative was rejected.
Dealer Reporting Requirements
    Amendment 5 proposed requiring 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. However, the proposed measure was disapproved, so 
this action maintains the no action alternative. Dealers currently 
report the weight of fish, obtained by scale weights and/or volumetric 
estimates. Because the proposed action did 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 selected, 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 establishes 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 selected 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 
selected 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 selected action could decrease the occurrence of 
regulatory discards and increase revenue for vessels that are eligible 
for this permit. For this reason, the no action and non-selected 
alternatives were rejected.
    As described previously, the cost of purchasing a VMS ranges 
between $1,700 and $3,300, and operating costs are approximately $40 to 
$100 per month. Economic impacts on small entities resulting from the 
purchase costs of new VMS units required by the new open access permit 
have been minimized through a VMS reimbursement program (July 21, 2006, 
71 FR 41425) that made available approximately $4.5 million in grant 
funds for fiscal year (FY) 2006 for vessel owners and/or operators who 
have purchased a VMS unit for the purpose of complying with fishery 
regulations that became effective during or after FY 2006. As of April 
3, 2007, an additional $4 million was being added to the fund. 
Reimbursement for VMS units is available on a first come, first serve 
basis until the funds are depleted. More information on the VMS 
reimbursement program is available from the Pacific States Marine 
Fisheries Commission (see ADDRESSES) and from the NMFS VMS Support 
Center, which can be reached at 888-219-9228.
2. Adjustments to the At-Sea Catch Monitoring
    Amendment 5 proposed requiring 100-percent observer coverage on 
Category A and B vessels, coupled with an industry contribution of $325 
per day. However, the proposed measure was disapproved, so this action 
maintains the no action alternative. 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

[[Page 8811]]

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 requires 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. Amendment 5 proposed that if a slippage cap was reached, a 
vessel would be required to return to port immediately following any 
additional slippage events. However, the proposed measure was 
disapproved and, instead, this action implements Option 2 and Option 3. 
Amendment 5 considered four alternatives to the proposed action: The no 
action alternative, Option 2, Option 3, and Option 4. The selected and 
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. Negative impacts 
associated with the proposed action and Option 4 are likely the 
greatest. 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. Option 4 that proposed a 
catch deduction was rejected because of the potential negative economic 
impacts, including loss of revenue from catch deduction and operating 
cost of returning to port, to vessels. As described previously, the 
proposed action was disapproved because it was inconsistent with MSA 
National Standards 2 and 10. Options 2 and 3 were selected because they 
may improve information on catch in the herring fishery by requiring 
vessels operators to document when and why slippage occurs (Option 2), 
and by prohibiting catch from being discarded before it was sampled by 
an observer (Option 3). The no action alternative was rejected because 
it was not expected to improve information on catch in the herring 
fishery.
3. Measures To Address River Herring Interactions
    Amendment 5 establishes River Herring Monitoring/Avoidance Areas. 
Amendment 5 considered two alternatives to the selected action: The no 
action alternative and a non-selected alternative (establishing River 
Herring Protection Areas). Relative to the no action alternative, the 
selected 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 non-selected option, 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 selected option, requiring all catch to be brought aboard, would 
have a less negative impact than the non-selected option requiring 100-
percent observer coverage. 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 selected 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 selected action has the 
potential to mitigate some of the negative impacts of the selected 
action by developing river herring bycatch avoidance measures in 
cooperation with the fishing industry. The no action alternative would 
not have provided for the formal evaluation of the existing river 
herring bycatch avoidance program, therefore, it was rejected. The non-
selected alternative of establishing River Herring Protection Area was 
rejected because of the potential negative impacts of closing areas to 
herring fishing and not providing for support for the existing river 
herring bycatch avoidance program.
4. Measures To Address Midwater Trawl Access to Groundfish Closed Areas
    Amendment 5 expands 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

[[Page 8812]]

alternatives to the selected 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 selected 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, which 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. The selected 
action is expected to improve catch data on herring vessels fishing in 
the Closed Areas. The no action alternative and Alternatives 2 and 5 
were not selected because they would not have resulted in improved data 
catch for the Closed Areas by either not increasing sampling 
requirements in the Closed Areas (no action and Alternative 2) or by 
prohibiting fishing in the Closed Areas (Alternative 5).

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency will publish 
one or more guides to assist small entities in complying with the rule, 
and will designate such publications as ``small entity compliance 
guides.'' The agency will explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
a small entity compliance guide (the guide) was prepared. Copies of 
this final rule are available from the Northeast Regional Office, and 
the guide (i.e., permit holder letter) will be sent to all holders of 
permits for the herring fishery. The guide and this final rule will be 
available upon request.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: February 7, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 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, the definitions for ``Atlantic herring carrier'' and 
``Atlantic herring dealer'' are revised and definitions for ``Atlantic 
herring offload,'' ``Atlantic herring transfer at-sea,'' and ``Slippage 
in the Atlantic herring fishery'' are added in alphabetical order to 
read as follows:


Sec.  648.2  Definitions.

* * * * *
    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. Fish that cannot be pumped and remain 
in the codend or seine at the end of pumping operations are not 
considered slippage. Discards that occur after the catch is brought on 
board and sorted are also not considered slippage.
* * * * *

0
3. In Sec.  648.4, paragraph (a)(10)(ii) is revised and paragraph 
(a)(10)(vi) is added to read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (10) * * *
    (ii) Atlantic herring carrier. An Atlantic herring carrier must 
have been issued and have on board a herring permit and a letter of 
authorization to receive and transport Atlantic herring caught by 
another permitted fishing vessel or it must have been issued and have 
on board a herring permit and have declared an Atlantic herring carrier 
trip via VMS consistent with the requirements at Sec.  648.10(m)(1). 
Once a vessel declares an Atlantic herring carrier trip via VMS, it is 
bound to the VMS operating requirements, specified at Sec.  648.10, for 
the remainder of the fishing year. On Atlantic herring carrier trips 
under either the letter of authorization or an Atlantic herring carrier 
VMS trip declaration, an Atlantic herring carrier is exempt from the 
VMS, IVR, and VTR vessel reporting requirements, as specified in Sec.  
648.7 and subpart K of this part, except as

[[Page 8813]]

otherwise required by this part. If not declaring an Atlantic herring 
carrier trip via VMS, an Atlantic herring carrier vessel must request 
and obtain a letter of authorization from the Regional Administrator, 
and there is a minimum enrollment period of 7 calendar days for a 
letter of authorization. Atlantic herring carrier vessels operating 
under a letter of authorization or an Atlantic herring carrier VMS trip 
declaration may not conduct fishing activities, except for purposes of 
transport, or possess any fishing gear on board the vessel capable of 
catching or processing herring, and they must be used exclusively as an 
Atlantic herring carrier vessel, and they must carry observers if 
required by NMFS. While operating under a valid letter of authorization 
or Atlantic herring carrier VMS trip declaration, such vessels are 
exempt from any herring possession limits associated with the herring 
vessel permit categories. Atlantic herring carrier vessels operating 
under a letter of authorization or an Atlantic herring carrier VMS trip 
declaration may not possess, transfer, or land any species other than 
Atlantic herring, except that they may possess Northeast multispecies 
transferred by vessels 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 
specified at Sec.  648.86(a)(3) and (k).
* * * * *
    (vi) Open access herring permits. A vessel that has not been issued 
a limited access Atlantic herring permit may obtain:
    (A) 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
    (B) 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 
at Sec.  648.4(a)(5)(iii).
* * * * *

0
4. In Sec.  648.7, paragraphs (b)(2)(i), (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.

* * * * *
    (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 
opn 9access permit to fish for herring must report catch (retained and 
discarded) of herring via an IVR system for each week herring was 
caught, unless exempted by the Regional Administrator. IVR reports are 
not required for weeks when no herring was caught. The report shall 
include at least the following information, and any other information 
required by the Regional Administrator: Vessel identification; week in 
which herring are caught; management areas fished; and pounds retained 
and pounds discarded of herring caught in each management area. The IVR 
reporting week begins on Sunday at 0001 hr (12:01 a.m.) local time and 
ends Saturday at 2400 hr (12 midnight). Weekly Atlantic herring catch 
reports must be submitted via the IVR system by midnight each Tuesday, 
eastern time, for the previous week. Reports are required even if 
herring caught during the week has not yet been landed. This report 
does not exempt the owner or operator from other applicable reporting 
requirements of this section.
* * * * *
    (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 catch (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 (9:00 a.m.) 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 a 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 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

[[Page 8814]]

time and place of offloading at least 6 hr prior to landing or, if 
fishing ends less than 6 hours before landing, as soon as the vessel 
stops catching fish. The Regional Administrator may adjust the prior 
notification minimum time through publication of a document in the 
Federal Register consistent with the Administrative Procedure Act.

0
6. In Sec.  648.11, paragraph (m) is added to read as follows:


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

* * * * *
    (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 and the estimated weight of each species 
released on each tow.
    (3) Sampling requirements. In addition to the requirements at Sec.  
648.11(d)(1) through (7), 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 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 the net, the codend of the net, and the 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 must be brought on board, unless 
bringing the codend on board is not possible. 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 
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.

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 (xii) 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 
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

[[Page 8815]]

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 landing or, if 
fishing ends less than 6 hours before landing, as soon as the vessel 
stops catching fish, if a vessel has been issued a Limited Access 
Herring Permit or 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 net, transfer fish to another vessel 
that is not carrying a NMFS-approved observer, or otherwise discard, as 
defined in Sec.  600.10 of this chapter, 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, as 
defined in Sec.  600.10 of this chapter, 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 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).
* * * * *

0
9. In Sec.  648.80, paragraph (d)(7)(iii)(B) is revised to read as 
follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (d) * * *
    (7) * * *
    (iii) * * *
    (B) 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 total weight of fish caught 
on that tow; and the weight of fish released (if less than the full 
tow). A completed affidavit must be submitted to NMFS within 48 hr of 
the end of the trip.
* * * * *

0
10. 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' NLat., 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/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

[[Page 8816]]

    (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; and
    (4) River herring catch caps.


0
11. 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 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.

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

[[Page 8817]]

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 (37) 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 slippage, including 
sampling requirements;
    (33) River Herring Monitoring/Avoidance Areas;
    (34) Provisions for river herring catch avoidance program, 
including adjustments to the mechanism and process for tracking fleet 
activity, reporting 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 catch in a particular area(s); the threshold for river herring 
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).
    (35) Changes to criteria/provisions for access to Northeast 
Multispecies Closed Areas;
    (36) River herring catch caps; and
    (37) Any other measure currently included in the FMP.
* * * * *
[FR Doc. 2014-03179 Filed 2-12-14; 8:45 am]
BILLING CODE 3510-22-P