[Federal Register Volume 81, Number 64 (Monday, April 4, 2016)]
[Rules and Regulations]
[Pages 19044-19054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07583]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 150304214-6231-02]
RIN 0648-BE94


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; Framework Adjustment 4

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

ACTION: Final rule.

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SUMMARY: NMFS implements approved measures in Framework 4 to the 
Atlantic Herring Fishery Management Plan. The New England Fishery 
Management Council developed Framework 4 to further enhance catch 
monitoring and address discarding in the herring fishery. The approved 
measures include: A requirement that vessels report slippage (i.e., 
catch discarded prior to sampling by an observer) via the vessel 
monitoring system; slippage consequences measures (i.e., requirement to 
move 15 nautical miles (27.78 km) or return to port following a 
slippage event); and clarifications to existing slippage measures and 
definitions. NMFS disapproved two measures in Framework 4. These 
measures would have required: Fish holds to be certified and observers 
to collect volumetric catch estimates of total catch; and fish holds to 
be empty of fish before leaving port, unless a waiver is issued by an 
authorized law enforcement officer. NMFS disapproved these measures 
because it determined that they are inconsistent with the Magnuson-
Stevens Fishery Conservation and Management Act, the Administrative 
Procedure Act, and the Paperwork Reduction Act. Therefore, those two 
measures are not implemented in this action. Lastly, NMFS implements 
minor corrections to regulations to clarify their intent and ensure 
they are consistent with the Atlantic Herring Fishery Management Plan.

DATES: Effective May 4, 2016.

ADDRESSES: The New England Fishery Management Council (Council) 
developed an environmental assessment (EA) for this action that 
describes the proposed action and other considered alternatives and 
provides a thorough analysis of the impacts of the proposed measures 
and alternatives. Copies of the framework, the EA, and the Regulatory 
Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are 
available upon request from Thomas A. Nies, Executive Director, New 
England Fishery Management Council, 50 Water Street, Newburyport, MA 
01950. The EA/RIR/IRFA is accessible via the Internet at 
www.greateratlantic.fisheries.noaa.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, Greater Atlantic Regional 
Fisheries Office and by email to [email protected], or fax to 
(202) 395-7285.

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

SUPPLEMENTARY INFORMATION:

Background

    The Council adopted Framework Adjustment 4 to the Atlantic Herring 
Fishery Management Plan at its April 22, 2014, meeting. The Council 
submitted Framework 4 to NMFS for review on July 18, 2014, and 
resubmitted it to NMFS on February 27, 2015, and April 30, 2015. The 
proposed rule for Framework 4 published in the Federal Register on 
August 27, 2015 (80 FR 52005), with a 30-day public comment period that 
ended September 28, 2015. NMFS received four comment letters on the 
proposed rule.
    NMFS implements approved measures in Framework 4 to the Atlantic 
Herring Fishery Management Plan (Herring FMP) and minor corrections to 
existing regulations in this final rule. The Council developed 
Framework 4 to build on catch monitoring improvements implemented in 
Amendment 5 to the Herring FMP (79 FR 8786, February 13, 2014) by 
further enhancing catch monitoring and addressing discarding in the 
herring fishery. The approved measures in Framework 4 clarify the 
slippage definition, require limited access herring vessels to report 
slippage events on the daily vessel monitoring system (VMS) catch 
report, and establish slippage consequences. Slippage consequence 
measures require vessels with All Areas (Category A) or Areas 2/3 
(Category B) Limited Access Herring Permits to move 15 nautical miles 
(27.78 km) following an allowable slippage event (i.e., slippage due to 
safety, mechanical failure, or excess catch of spiny dogfish) and to 
terminate a fishing trip and return to port following a non-allowable 
slippage event (i.e., slippage for any other reason). NMFS also makes 
minor corrections to new and existing regulations. These revisions, 
identified and described below, are necessary to clarify current 
regulations or the intent of the Herring FMP, and do not change the 
intent of any regulations.
    NMFS disapproved two measures recommended by the Council in 
Framework 4. Those measures would have required: Herring vessel fish 
holds to be certified and observers to collect volumetric catch 
estimates on herring trips as a cross-check of vessel and dealer data; 
and herring vessel fish holds to be empty of fish before leaving port, 
unless a waiver is issued by an authorized law enforcement officer. 
During the development of Framework 4, NMFS expressed its concern with 
the lack of support for these two measures in Framework 4. 
Specifically, NMFS commented that these measures are not likely to 
improve catch monitoring, but they would result in compliance and 
enforcement costs. Despite NMFS urging, the Council did not include 
sufficient support for these two measures in Framework 4. Framework 4 
does not provide evidence of specific problems with catch monitoring or 
discarding that need to be addressed, nor does it demonstrate how these

[[Page 19045]]

recommended measures would rectify problems with monitoring or 
discarding. NMFS described its concern with these measures in the 
proposed rule, and explained that that they appear inconsistent with 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and other applicable law. Some public comments on the 
proposed rule expressed support for the approval and implementation of 
both measures, but the commenters did not provide evidence that the 
utility of these measures would outweigh costs. Therefore, NMFS 
determined that these two measures must be disapproved because they are 
inconsistent with the Magnuson-Stevens Act, the Administrative 
Procedure Act (APA), and the Paperwork Reduction Act (PRA).

Approved Measures

    NMFS approves the following measures because it believes they will 
further enhance catch monitoring and address discarding in the herring 
fishery.

Clarification of Existing Slippage Measures

    Framework 4 maintains the existing requirements that prohibit 
operational discards (i.e., small amounts of fish that cannot be pumped 
on board and remain in the codend or seine at the end of pumping 
operations) aboard midwater trawl vessels fishing in the Groundfish 
Closed Areas and allow operational discards to occur on board herring 
vessels fishing outside the Groundfish Closed Areas. Current observer 
protocols include documenting operational discards and existing 
regulations require vessel operators to assist the observer with this 
process. Because it can be time and labor intensive to bring these 
small amounts of fish on board the vessel, the Council and NMFS believe 
that compliance costs associated with prohibiting operational discards 
outside the Groundfish Closed Areas would likely outweigh any benefits 
to the catch monitoring program and the herring resource.
    Framework 4 clarifies that a slippage event due to safety, 
mechanical failure, or excess catch of spiny dogfish is categorized as 
an ``allowable'' slippage event and clarifies that slippage for any 
other reason is categorized as a ``non-allowable'' slippage event. The 
Council recommended these categories to help distinguish between 
slippage types and the triggers for slippage consequence measures.
    Framework 4 clarifies that catch not brought on board due to gear 
damage would be categorized as mechanical failure and, therefore, as an 
allowable slippage event. Although a gear failure that results in the 
release of catch from a codend is often beyond the control of the 
vessel operator, instances of catch released due to gear damage are 
similar to instances of catch released due to mechanical failure. 
Therefore, the Council and NMFS believe that catch released due to gear 
damage should be categorized as mechanical failure and an allowable 
slippage event. As an allowable slippage event, catch not brought on 
board due to gear damage would be subject to a slippage consequence 
measure.
    Framework 4 clarifies that when catch that falls out of or off of 
gear and is not brought on board, the event would not be categorized as 
a slippage event. In general, only small amounts of catch fall out or 
off of gear during fishing and/or when catch is being brought aboard 
the vessel, unlike the potential for catch loss due to mechanical 
failure. Therefore, the Council and NMFS believe that fish that fall 
out of the gear should be categorized as discarded catch, but not 
slippage. For these reasons, instances of catch falling out or off of 
gear during fishing and/or when catch is being brought aboard the 
vessel would not be subject to existing slippage requirements or any 
slippage consequence measures.

Slippage Consequences

    Building on the slippage restrictions established in Amendment 5, 
Framework 4 requires vessels to move following an allowable slippage 
event before resuming fishing. Specifically, vessels with Category A or 
B herring permits slipping catch due to safety, mechanical failure, or 
excess catch of spiny dogfish, are required to move at least 15 
nautical miles (27.78 km) away from the slippage event location. The 
vessel is allowed to move 15 nautical miles (27.78 km) away in any 
direction, but it is prohibited from resuming fishing until it is at 
least 15 nautical miles (27.78 km) from the location of the allowable 
slippage event. Additionally, the vessel is required to remain at least 
15 nautical miles (27.78 km) from the slippage event location for the 
duration of that fishing trip. In addition to moving and remaining at 
least 15 nautical miles (27.78 km) away from an allowable slippage 
event, vessels with Category A or B herring permits fishing with 
midwater trawl gear in the Groundfish Closed Areas must leave the 
Groundfish Closed Areas and remain outside of the Groundfish Closed 
Areas for the remainder of the fishing trip following an allowable 
slippage event.
    Framework 4 also requires trip termination for non-allowable 
slippage events. Specifically, vessels with Category A or B herring 
permits, including those fishing with midwater trawl gear in the 
Groundfish Closed Areas, that slip catch for any reason other than 
safety, mechanical failure, or excess catch of spiny dogfish, are 
required to immediately stop fishing and return to port. After having 
returned to port and terminated the fishing trip, vessels are allowed 
to initiate another fishing trip, consistent with the existing pre-trip 
notification requirements (e.g., contact the Northeast Fisheries 
Observer Program (NEFOP) to request an observer, vessel monitoring 
system (VMS) trip/gear declaration) for limited access vessels 
participating in the herring fishery.
    NMFS is implementing slippage consequences for both allowable and 
non-allowable slippage events to further discourage slippage in the 
herring fishery and enhance the catch monitoring program established 
through Amendment 5. The herring fishery is a relatively high-volume 
fishery capable of catching large quantities of fish in a single tow. 
Therefore, even a few slippage events have the potential to 
substantially affect species composition data, especially 
extrapolations of incidental catch. Additionally, slippage is a 
significant concern for many stakeholders because they believe it 
undermines the ability to collect unbiased estimates of herring catch, 
as well as other species, in the herring fishery. Stakeholders 
expressed support for the slippage consequence measures in Framework 4 
to further ensure accountability for all catch in the herring fishery.
    NMFS expects the requirement for vessels to move following slippage 
events will provide sufficient incentive for herring vessels to 
minimize slippage, while still promoting safety at sea and providing 
opportunities to utilize the herring optimum yield (OY). The 
requirement for vessels to move 15 nautical miles (27.78 km) following 
an allowable slippage event applies uniformly to all vessels that slip 
catch, unlike other considered alternatives (e.g., leaving a management 
area, leaving a statistical area) where the magnitude of the move would 
have depended upon the location of the allowable slippage event. NMFS 
expects that the requirement for vessels to move 15 nautical miles 
(27.78 km) following an allowable slippage event provides sufficient 
incentive (i.e., cost in time and fuel) for herring vessels to minimize

[[Page 19046]]

slippage, and the requirement that vessels terminate their fishing trip 
and return to port following a non-allowable slippage event will 
further minimize slippage. NMFS believes that minimizing slippage 
events and better documentation of slipped catch may improve estimates 
of bycatch in the fishery. To the extent that the amount and species 
composition of slipped catch can be sampled and/or estimated, catch 
monitoring will be enhanced. To the extent that slippage events can 
continue to be reduced, bycatch can be further minimized.
    The Mid-Atlantic Fishery Management Council recommended these same 
slippage consequences for allowable and non-allowable slippage events 
in the Atlantic mackerel fishery as part of Framework 9 to the Atlantic 
Mackerel, Squid, and Butterfish FMP. Many vessels participate in both 
the herring and mackerel fisheries, and NMFS expects that implementing 
consistent slippage consequences across these fisheries will improve 
compliance and enforcement of slippage requirements.

Reporting Slippage Events

    Framework 4 requires vessels with limited access herring permits to 
report slippage events, including the reason for the slippage event, 
via the herring daily VMS catch report. NMFS expects that this VMS 
report, in combination with observer data, will help enhance the 
enforceability of existing slippage requirements, such as completing a 
released catch affidavit, as well as the slippage consequences.

Clarifications and Corrections

    This final rule also contains minor clarifications and corrections 
to existing regulations. NMFS implements these adjustments under the 
authority of section 305(d) to the Magnuson-Stevens Act, which provides 
that the Secretary of Commerce may promulgate regulations necessary to 
ensure that framework adjustments to a FMPs are carried out in 
accordance with the FMP and the Magnuson-Stevens Act. These 
adjustments, identified and described below, are necessary to clarify 
current regulations and do not change the intent of any regulations.
    NMFS is implementing a transiting provision for herring management 
areas with seasonal sub-ACLs. This provision allows vessels to transit 
herring management areas during periods when zero percent of the sub-
ACL for those areas is available for harvest, with herring harvested 
from other herring management areas aboard, provided gear is stowed and 
not available for use. NMFS overlooked this provision during rulemaking 
for Framework Adjustment 2 to the Herring FMP and the provision is 
consistent with the intent of that action and the Herring FMP. NMFS is 
removing regulations at Sec.  648.80(d)(7) describing requirements for 
midwater trawl vessels fishing in Groundfish Closed Area I because they 
are redundant with regulations at Sec.  648.202(b) describing 
requirements for midwater trawl vessels fishing in any of the 
Groundfish Closed Areas. NMFS is adding the definition of operational 
discards at Sec.  648.2 and clarifying that operational discards are 
not permitted aboard midwater trawl vessels fishing in Groundfish 
Closed Areas, unless those fish have first been made available to an 
observer for sampling. NMFS is revising references to individual years 
in regulations for carryover at Sec.  648.201 to more correctly 
describe the timing of carryover. Lastly, NMFS is correcting 
coordinates for Herring Management Area 2 at Sec.  648.200(f)(2).

Disapproved Measures

    NMFS disapproved the following measures because it determined they 
are inconsistent with the Magnuson-Stevens Act, APA, and PRA.

Volumetric Catch Estimates

    Framework 4 would have required vessels with limited access herring 
permits to have their fish holds certified and NEFOP observers to 
collect volumetric estimates of total catch by measuring the volume of 
the fish in hold prior to offloading. Observers would have converted 
the volumetric estimate to a weight and submitted the estimated weight 
to the Greater Atlantic Region Fisheries Office (GARFO) for a cross-
check of vessel trip reports (VTRs) and dealer reports. The requirement 
for observers to estimate the amount of catch in the fish hold was 
intended to enhance catch monitoring in the herring fishery by 
providing an independent estimate of total catch.
    This measure was developed to address stakeholder concerns with 
NMFS's reliance on industry-reported catch data to monitor the herring 
fishery. Specifically, some stakeholders, including environmental 
organizations, the groundfish industry, and recreational fishing 
groups, believe that herring catch is not accurately reported by the 
industry and that large discrepancies exist between vessel and dealer 
reports. The herring industry, in general, does not believe that 
herring catch is being misreported but, in an effort to address 
stakeholder concerns, supports the requirement for observers to collect 
an estimate of total catch.
    Framework 4 does not provide evidence of misreporting by the 
herring industry, but it does highlight past differences, that have 
since been minimized, between the amount of herring reported by vessels 
and dealers. In past years, discrepancies between VTRs and dealer data 
have been as large as 54 percent. But recently, GARFO staff has 
improved the process for cross-checking and resolving differences 
between VTRs and dealer data. Now discrepancies between VTRs and dealer 
data are minimal, with differences averaging 1 percent. Because 
discrepancies between VTRs and dealer data are now minimal, NMFS does 
not believe that the proposed measure requiring volumetric estimates of 
total catch is necessary to help resolve discrepancies between VTR and 
dealer data.
    Vessels and dealers report catch by species. VTRs, in combination 
with observer data, are used in herring stock assessments, while a 
combination of dealer data, VTR, and VMS, and observer data are used to 
track catch against herring annual catch limits and catch caps in the 
herring fishery. The measure requiring volumetric catch estimates would 
have provided an estimate of total catch, but would not have 
differentiated catch by species. Because the volumetric estimate would 
not have provided catch by species, it could not have been used to 
replace VTRs or dealer data nor could it have been used for catch 
monitoring or stock assessments.
    Additionally, Framework 4 cautions whether the proposed measure 
would be more accurate than methods currently used by vessel operators 
or dealers to estimate catch. The volumetric conversion proposed in 
Framework 4 is based on herring harvested in other parts of the world. 
Using a volumetric conversion assumes consistency in the size, weight, 
and density of the catch, but there can be substantial variability in 
the catch composition of the herring fishery, depending on the area and 
season. Additionally, the proposed 5 percent deduction from total 
weight to account for water in the tanks is based on industry 
practices, but the Council did not rigorously evaluate the amount of 
the deduction. For these reasons, Framework 4 explains that converting 
a volume of total fish to pounds based on the proposed conversion could 
produce less accurate catch estimates than current vessel or dealer 
estimates.
    The measure requiring a volumetric catch estimate is unlikely to 
improve catch monitoring in the herring fishery because that estimate 
cannot be used to

[[Page 19047]]

replace VTR or dealer report to monitor catch and it is not necessary 
to resolve minimal discrepancies between VTR and dealer data. In 
contrast, the compliance costs associated with the measure may be high. 
If a vessel's fish holds are not already certified, the vessel owner 
would need to pay to have the fish holds certified. NMFS would need to 
significantly develop the measure prior to implementation, including 
generating a sampling protocol, approving volume to weight conversions 
and deductions to account for water in the fish hold, training 
observers, and evaluating how to use the data. Additionally, requiring 
observers to sample vessels in port would require modifications to the 
description of observer duties and contracts with observer service 
providers.
    For these reasons, NMFS concluded that the measure requiring fish 
holds to be certified and observers to collect volumetric catch 
estimates is inconsistent with the requirements of the Magnuson-Stevens 
Act, APA, and PRA. The measure is inconsistent with the APA because 
there is insufficient support in Framework 4 documenting the need for 
this measure and how this measure would address the purported need. The 
measure is inconsistent with the requirements of Magnuson-Stevens Act 
National Standard 7 and the PRA because the benefit of the volumetric 
catch estimate is dubious and does not outweigh the additional burden 
on vessel owners of certifying their fish holds and making available a 
measuring stick for observers. The measure is inconsistent with 
Magnuson-Stevens Act National Standard 2 because the quality of the 
volumetric catch estimate is not sufficient for monitoring the fishery, 
facilitating inseason management, or judging the performance of the 
management regime. Finally, the measure is inconsistent with Magnuson-
Stevens Act National Standard 5 because it does not allow the fishery 
to operate at the lowest possible administrative costs relative to any 
additional monitoring benefit provided by the measure.

Empty Fish Holds

    Framework 4 would have required fish holds of vessels with Category 
A or B Limited Access Herring Permits to be empty of fish before 
leaving the dock on a herring trip. A waiver may have been issued by an 
authorized law enforcement officer when fish have been reported as 
caught but cannot be sold due to the condition of fish.
    The Council recommended this measure to enhance catch monitoring 
and discourage wasteful fishing practices in the herring fishery. Some 
stakeholders are concerned that vessels are harvesting more fish than 
they can sell and then discarding the unsold fish on subsequent fishing 
trips. These stakeholders are also concerned that fish not purchased by 
a dealer, and discarded on subsequent trips, may not be reported on the 
VTR. The Council intended this measure to discourage the discarding of 
unreported fish, provide a mechanism to document when harvested fish 
become unmarketable, and prevent vessel operators from mixing fish from 
multiple trips in the hold, potentially biasing catch data.
    While prohibiting the disposal of unsold fish at sea may discourage 
wasteful fishing practices, there is insufficient support in the record 
to conclude that herring vessels are harvesting excess fish and 
discarding unsold fish at sea. The costs associated with a herring 
trip, including fuel, crew wages, and insurance, are substantial, so it 
is unlikely that vessel operators are making herring trips to harvest 
fish that will ultimately be discarded. Additionally, if discarding of 
unsold fish at sea is occurring, Framework 4 explains that it is 
unclear whether unsold catch disposed of at sea on a subsequent trip is 
reported.
    Initially, this measure requiring empty fish holds simply required 
that fish holds be empty of fish at the beginning of a herring trip. 
But recognizing that there may be unforeseen events making it difficult 
to sell fish (e.g., refrigeration failure, poor condition, lack of 
market), the Council recommended the waiver provision to mitigate the 
potential costs associated with disposing of unmarketable catch on 
land. The Council intended the waiver to provide a mechanism to verify 
that fish had been reported and document the nature and extent to which 
vessels are departing on trips with fish in their fish holds. 
Additionally, some vessels in the herring fishery land their catch in 
multiple ports, and the Council intended that the waiver provision 
would allow that practice to continue.
    Part of the justification for the waiver provision is to provide a 
way to verify that fish have been reported and to document the extent 
to which vessels are departing on trips with fish in their fish holds. 
However, Framework 4's proposed waiver provides no way of verifying the 
amount of fish reported relative to the amount of fish left in the 
hold. Therefore, NMFS does not believe that this measure contains a 
viable mechanism to verify whether harvested fish that are left in the 
hold were reported by the vessel.
    Because the measure lacks a mechanism to verify or correct the 
amount of fish reported on the VTR, the measure is unlikely to improve 
catch monitoring in the herring fishery. In contrast, the compliance 
and enforcement costs associated with the measure may be high. For 
example, vessel operators needing to dispose of fish at sea may lose 
time and money waiting for an authorized law enforcement officer to 
travel to their vessel, inspect the fish in the fish hold, and issue a 
waiver. Additionally, it would likely be time consuming for authorized 
officers to issue waivers and would divert resources from other law 
enforcement duties.
    This measure is also intended to prevent vessel operators from 
mixing catch from multiple trips in the hold and biasing catch data. 
NEFOP observers sample the catch while it is on the deck, before it is 
placed in the fish hold, so there would be no chance that observers 
would be sampling fish from multiple trips that were mixed in the hold. 
The herring fishery is also sampled portside by the Massachusetts 
Department of Marine Fisheries (MA DMF) and Maine's Department of 
Marine Resources. Mixing of catch from multiple fishing trips, although 
unlikely, may have the potential to bias landings data used to inform 
herring stock assessments, state management spawning closures, and the 
river herring avoidance program operated by the University of 
Massachusetts' School of Marine Fisheries and MA DMF.
    The Atlantic States Marine Fisheries Commission recently adopted a 
requirement that vessel fish holds be empty of fish before vessels 
depart on a herring trip, contingent on adoption in Federal waters, in 
Amendment 3 to the Interstate FMP for Atlantic Herring. Establishing a 
similar provision in this action would have promoted coordination 
between Federal and state management, but, for the reasons described 
above, it is unlikely to improve catch monitoring in the herring 
fishery.
    For these reasons, NMFS concluded that the measure requiring fish 
holds to be empty of fish before leaving port, unless a waiver is 
issued by an authorized officer, is inconsistent with the requirements 
of the Magnuson-Stevens Act, APA, and PRA. The measure is inconsistent 
with the APA because there is insufficient support in Framework 4 
documenting the need for this measure and how this measure would 
address the purported need. The measure is inconsistent with Magnuson-
Stevens Act National Standard 7 and the PRA because the benefit of 
requiring

[[Page 19048]]

empty fish holds when departing on a herring trip does not outweigh the 
additional reporting burden on vessel operators to request and obtain a 
waiver from an authorized officer. The measure is inconsistent with 
Magnuson-Stevens Act National Standard 7 because it does not provide 
fishermen with the greatest possible freedom of action in conducting 
business and imposes an unnecessary enforcement burden. Finally, the 
measure is inconsistent with Magnuson-Stevens Act National Standard 5 
because it does not allow the fishery to operate at the lowest possible 
administrative and enforcement costs relative to any additional 
monitoring benefit provided by the measure.

Comments and Responses

    NMFS received four comment letters on the proposed rule. Two 
letters were from environmental advocacy groups (Herring Alliance and 
CHOIR (Coalition for the Atlantic Herring Fishery's Orderly, Informed, 
and Responsible Long Term Development)) and two letters were from 
herring industry groups (Seafreeze Ltd. and the Sustainable Fisheries 
Coalition).
    Comment 1: The Herring Alliance supports proposed measures in 
Framework 4 that would clarify the slippage definition and require 
slippage to be reported via the daily VMS catch report.
    Response: NMFS is implementing measures to clarify the slippage 
definition and require slippage to be reporting via the daily VMS catch 
report.
    Comment 2: CHOIR expressed concern with the potential for increased 
discarding of unsampled catch associated with the clarifications to 
existing slippage measures that allow for operational discards and 
catch that falls out of or off gear. Despite its concern, CHOIR 
supports the proposed clarifications to existing slippage measures, 
because it believes that the proposed slippage consequence measures 
will drastically improve management of herring fishery.
    Response: NMFS agrees with CHOIR that slippage consequence measures 
will likely improve management of the herring fishery, but disagrees 
with CHOIR that continuing to allow for operational discards and fish 
that fall out of or off gear would increase the discarding of unsampled 
catch.
    Framework 4 maintains the existing requirements that prohibit 
operational discards aboard midwater trawl vessels fishing in the 
Groundfish Closed Areas, but allows operational discards to occur on 
board herring vessels fishing outside the Groundfish Closed Areas. 
Framework 4 clarifies that operational discards are small amounts of 
fish that cannot be pumped on board and remain in the codend or seine 
at the end of pumping operations. Current observer protocols include 
estimating the amount and composition of operational discards. Because 
the fish cannot be pumped, it can be time and labor intensive to bring 
these small amounts of fish on board the vessel. There is no evidence 
in Framework 4 to suggest that continuing to allow operational discards 
would increase the discarding of unsampled catch. Rather, Framework 4 
concludes that the compliance costs associated with requiring herring 
vessels fishing outside the Groundfish Closed Areas to bring 
operational discards on board would likely outweigh any benefits to the 
catch monitoring program and the herring resource.
    Framework 4 clarifies that catch that falls out of or off of gear 
and is not brought on board would be categorized as discarded catch, 
but not slippage. In general, only small amounts of catch fall out or 
off of gear during fishing and/or when catch is being brought aboard 
the vessel, unlike the potential for catch loss due to mechanical 
failure. It would be very difficult for vessels to retrieve the small 
amounts of fish that fall out of or off gear and bring those fish on 
board the vessel. Again, there is no evidence in Framework 4 suggesting 
that this measure would increase the discarding of unsampled catch and 
the compliance costs associated with requiring these fish be brought on 
board the vessel for sampling would likely outweigh any benefit to 
herring catch monitoring.
    Comment 3: The Sustainable Fisheries Coalition supports minor 
clarifications and corrections to existing measures because it believes 
they are not a substantive change to current regulations and are 
consistent with the Herring FMP. The Sustainable Fisheries Coalition 
also supports categorizing catch not brought on board due to gear 
damage as an allowable slippage event and catch that falls out of or 
off gear as a discard event. The Sustainable Fisheries Coalition 
supports continuing to allow operational discards in the herring 
fishery, except on board herring vessels fishing in the Groundfish 
Closed Areas, noting that the costs of prohibiting operational discards 
would likely outweigh any benefits. Lastly, the Sustainable Fisheries 
Coalition has no objection to the proposed requirement to report 
slippage via the VMS daily catch report.
    Response: NMFS agrees with the Sustainable Fisheries Coalition and 
the measures implemented in this final rule are consistent with the 
Sustainable Fisheries Coalition recommendations.
    Comment 4: The Sustainable Fisheries Coalition supports including 
the definition of operational discards in the regulations, but suggests 
that the operational discards definition, as well as the slippage 
definition, be revised to acknowledge that releasing small amounts of 
fish from the codend or seine at the end of pumping operations is also 
operationally discarding catch.
    Response: This final rule adds the definition of operational 
discards to regulations at Sec.  648.2. Operational discards are 
defined as small amounts of fish that cannot be pumped on board the 
vessel and remain in the codend or seine at the end of pumping 
operations. Leaving small amounts of fish in the codend or seine at the 
end of pumping operations is operationally discarding catch. This final 
rule also categorizes instances of catch falling out or off of gear 
during fishing and/or when catch is being brought aboard the vessel as 
discarding, rather than slippage. Framework 4 explains that, in 
general, only small amounts of catch fall out or off of gear during 
fishing and/or when catch is being brought aboard the vessel. NMFS 
believes that categorizing catch that falls out of gear as discarding 
addresses the Sustainable Fisheries Coalition's recommendation to 
acknowledge releasing small amounts of fish from the codend or seine at 
the end of pumping operations is a discard event and not slippage.
    Comment 5: CHOIR and the Herring Alliance support the proposed 
slippage consequence measures. CHOIR commented that proposed slippage 
consequence measures are vital to provide vessels with incentive to 
avoid slippage and the Herring Alliance commented that the proposed 
slippage consequence measures are reasonable, safe, and necessary to 
further deter slippage events on observed trips.
    Response: NMFS is implementing the slippage consequence measures to 
help improve catch monitoring and further deter slippage in the herring 
fishery.
    Comment 6: Seafreeze Ltd. and the Sustainable Fisheries Coalition 
do not support the proposed measure requiring vessels to move and 
remain at least 15 nautical miles (27.78 km) away from an allowable 
slippage event for the duration of that fishing trip.
    Seafreeze Ltd. and the Sustainable Fisheries Coalition commented 
that because no scientific analysis supports the requirement to move 15 
nautical miles (27.78 km), the measure is inconsistent with the 
requirement that measures be based on the best available

[[Page 19049]]

science. Seafreeze Ltd. noted that fishing effort is often already 
spatially limited by regulations, oceanographic features, or fish 
distribution. Both Seafreeze Ltd. and the Sustainable Fisheries 
Coalition commented that requiring vessels to move 15 nautical miles 
(27.78 km) following an allowable slippage event may result in lost 
fishing opportunities and will not rectify the problem that caused the 
slippage event. Additionally, the Sustainable Fisheries Coalition 
commented that the measure raises concerns with the ability of the 
herring fleet to achieve the herring OY, the need to minimize adverse 
impacts on fishing communities, and the measure having a limited 
conservation benefit as bycatch has already been minimized to the 
extent practicable.
    Seafreeze Ltd. noted that as spiny dogfish populations continue to 
increase, herring fishery interactions with dogfish will also likely 
increase. Seafreze Ltd. also noted that vessels typically move from an 
area following interactions with dogfish, but they do not move as far 
as 15 nautical miles (27.78 km).
    Seafreeze Ltd. and the Sustainable Fisheries Coalition commented 
that needing to slip catch for safety or mechanical failure is often 
beyond the control of the vessel operator. Seafreeze Ltd. also 
commented that requiring vessels to move 15 nautical miles (27.78 km) 
following allowable slippage events may pressure vessel operators to 
possibly engage in unsafe fishing practices to avoid a penalty. 
Additionally, Seafreeze Ltd. commented that penalizing a vessel for 
safety concerns violates National Standard 10.
    Lastly, Seafreeze Ltd. commented that its bottom trawl vessels have 
higher observer coverage rates than other gear types participating in 
the herring fishery and would, therefore, be disproportionately 
impacted by the proposed slippage consequence measure following an 
allowable slippage event.
    Response: NMFS disagrees with Seafreeze Ltd. and the Sustainable 
Fisheries Coalition that the slippage consequence measure requiring 
vessels to move and remain at least 15 nautical miles (27.78 km) away 
from an allowable slippage event for the duration of that fishing trip 
should not be approved.
    NMFS anticipates this slippage consequence measure will address 
concerns about bycatch and slippage by discouraging the occurrence of 
slippage throughout the fishery, while continuing to promote safe and 
efficient fishing practices on vessels participating in the herring 
fishery. Safety is an important consideration for all fishery 
management plans and Framework 4 acknowledges that slippage events due 
to safety concerns or mechanical failure may be beyond the control of 
the vessel operator. NMFS expects the requirement to move 15 nautical 
miles (27.78 km) following an allowable slippage event will accommodate 
any safety concerns because it allows vessels to continue fishing, when 
it is safe to do so, rather than requiring trip termination.
    NMFS also expects that this slippage consequence measure will 
enhance the catch monitoring program established through Amendment 5 by 
further discouraging slippage in the herring fishery. The requirement 
for a vessel to move following an allowable slippage event is not based 
on the biology or distribution of a fish species, like the Groundfish 
Closed Areas, nor is it intended to rectify mechanical failures, unsafe 
weather conditions, or encounters with spiny dogfish. Instead, the 
measure was based on an analysis evaluating the distances vessels move 
during fishing operations and is intended to provide sufficient 
incentive (i.e., cost in time and fuel) for herring vessels to minimize 
slippage, while providing opportunities to utilize the herring OY. 
Options for moving 10 nautical miles (16.09 km) and 20 nautical miles 
(32.19 km) were also considered in Framework 4, but the 15-nautical 
mile (27.78-km) option was recommended by the Council because 15 
nautical miles (27.78 km) is the median value between 10 nautical miles 
(16.09 km) and 20 nautical miles (32.19 km). Additionally, this measure 
applies uniformly to all vessels that slip catch, unlike other 
considered alternatives (e.g., leaving a management area, leaving a 
statistical area) in Framework 4 where the magnitude of the move would 
have depended upon the location of the allowable slippage event.
    Framework 4 describes the impact of this slippage consequence 
measure as a low negative for the herring industry. This impact is not 
related to safety concerns, but to the potential for lost time and 
money associated with moving following an allowable slippage event. 
Analyses in Framework 4 show that midwater trawl and purse seine 
vessels participating in the herring fishery have the potential to be 
most affected by the requirement to move following an allowable 
slippage event. Small mesh bottom trawl vessels are expected to be 
least affected by the move requirement because documented slippage 
events by those vessels are low.
    NMFS implemented this same slippage consequence measure in the 
mackerel fishery as part of the measures recommended by the Mid-
Atlantic Fishery Management Council in Framework 9 to the MSB FMP. Many 
vessels participate in both the herring and mackerel fisheries, and 
NMFS expects that implementing consistent slippage consequences across 
these fisheries will improve compliance and enforcement of slippage 
measures.
    Comment 7: The Sustainable Fisheries Coalition supports the 
proposed measure requiring vessels to terminate a fishing trip and 
return to port following a non-allowable slippage event. With the 
exception of the allowable slippage events, the Sustainable Fisheries 
Coalition commented that vessels should be able to bring catch aboard 
and make it available to the observer for sampling. The Sustainable 
Fisheries Coalition noted that if the condition of the fish results in 
catch being unmarketable, those fish would be discarded after they were 
sampled by the observer.
    Response: NMFS is implementing the requirement to terminate a 
fishing trip and return to port following a non-allowable slippage 
event.
    Comment 8: CHOIR and the Herring Alliance support the measure 
requiring vessel fish holds to be certified and NEFOP observers to 
collect volumetric estimates of total catch. CHOIR noted that the 
volumetric catch estimate is especially important to confirm industry 
catch reports, given past instances of misreporting and when vessels 
and dealers both work for the same company. Even if observers only 
sporadically collected catch estimates, CHOIR commented that having a 
mechanism to confirm catch reports could improve catch reporting. 
Herring Alliance commented that third-party catch verification is 
needed to needed ensure industry catch reports are accurate, complete, 
and credible and that catch limits are not exceeded. The Herring 
Alliance explained that accurate landings data will improve stock 
assessments and aid in monitoring fishery catch caps. Additionally, the 
Herring Alliance noted that logistical and operational challenges 
associated with observers collecting volumetric estimates of catch, 
such as modifying the description of observer duties and contracts with 
observer service providers to require observers to sample vessels in 
port, are solvable.
    Response: NMFS agrees with the Herring Alliance that it is possible 
to make the necessary programmatic changes to enable observers to 
collect volumetric estimates in port, but disagrees with CHOIR and the 
Herring Alliance that the proposed volumetric catch estimate is a cost-
effective measure that is necessary to confirm

[[Page 19050]]

industry catch reports and will improve catch reporting and stock 
assessments.
    Vessels and dealers report catch by species. VTRs, in combination 
with observer data, are used in herring stock assessments, while a 
combination of dealer data, VTR, and VMS, and observer data are used to 
track catch against herring annual catch limits and catch caps in the 
herring fishery. The proposed measure would provide an estimate of 
total catch, but not catch by species. Therefore, the volumetric 
estimate could not be used to replace either VTRs or dealer data and it 
could not be used for catch monitoring or stock assessments.
    Framework 4 does not provide evidence of misreporting by the 
herring industry, but it does highlight past differences, that have 
since been minimized, between the amount of herring reported by vessels 
and dealers. In recent years, discrepancies between VTRs and dealer 
data have been minimal. VTRs were higher than dealer reports in 2009 (2 
percent), 2010 (1.3 percent), 2011 (1.2 percent), and 2013 (0.1 
percent) and less than dealer reports in 2012 (0.1 percent). GARFO 
staff use a rigorous process to match vessel and dealer reported data 
and make corrections to the appropriate data set. Given that 
discrepancies between VTR and dealer data are minimal as well as 
investigated and resolved, NMFS does not consider the proposed 
volumetric catch estimate necessary to help identify or resolve 
discrepancies between VTR and dealer data.
    NMFS disapproved the requirement for volumetric catch estimates 
because it considers the measure inconsistent with the Magnusson-
Stevens Act, APA, and PRA.
    Comment 9: Seafreeze Ltd. does not support the proposed measure 
requiring fish holds to be certified and NEFOP observers to collect 
volumetric estimates of total catch. The Sustainable Fisheries 
Coalition noted that its members did not reach a consensus whether the 
volumetric catch estimate should be approved or disapproved, but it 
expressed concern with the potential inaccuracies associated with the 
proposed measure. Additionally, the Sustainable Fisheries Coalition 
recommended that if the proposed measure was implemented, that it only 
apply to vessels whose fish holds had already been certified to help 
minimize vessel compliance costs. Seafreeze Ltd. also questioned the 
accuracy of the proposed volumetric estimates and expressed concern 
that the proposed measure would increase observer workload. Seafreeze 
Ltd. commented that because discrepancies between vessel and dealer 
reports are minimal, the proposed measure is not warranted. Lastly, 
Seafreeze Ltd. noted that the proposed measure would not be applicable 
to the Seafreeze Ltd. vessels that offload frozen product.
    Response: NMFS shares Seafreeze Ltd.'s and the Sustainable 
Fisheries Coalition's concern with the accuracy of the proposed 
volumetric catch estimates and disapproved this measure in Framework 4. 
The volumetric conversions proposed in Framework 4 are based on herring 
harvested in other parts of the world. Using a volumetric conversion 
assumes consistency in the size, weight, and density of the catch, but 
there can be substantial variability in the catch composition of the 
herring fishery, depending on the area and season. Additionally, the 
proposed 5 percent deduction from total weight to account for water in 
the tanks is based on industry practices, but the Council did not 
rigorously evaluate the amount of the deduction. For these reasons, 
Framework 4 questioned whether the proposed measure would be more 
accurate than methods currently used by vessel operators or dealers to 
estimate catch.
    NMFS agrees with Seafreeze Ltd. that requiring observers to collect 
volumetric catch estimates would increase observer workload and that 
discrepancies between vessel and dealer reports are minimal. As 
described previously, volumetric estimates could not be used to replace 
either VTRs or dealer data and it could not be used for catch 
monitoring or stock assessments. Increasing observer workload with 
duties that are unlikely to improve herring catch monitoring is not an 
effective use of NMFS resources. As described previously, NMFS does not 
consider the proposed volumetric catch estimate necessary to help 
identify or resolve the minimal discrepancies between VTR and dealer 
data.
    Lastly, the measure, as proposed, would have required all vessels 
with limited access herring permits to have their fish holds certified 
and observers to collect volumetric catch estimates. Limiting the 
measure to only apply to vessels whose fish holds had already been 
certified would have meant substantially revising the measure. NMFS can 
only approve or disapprove a proposed measure; therefore, NMFS cannot 
revise the measure to only apply to vessels whose fish holds have 
already been certified.
    Comment 10: CHOIR and Herring Alliance support the proposed measure 
requiring fish holds to be empty of fish before a vessel departs on a 
herring trip, unless a waiver has been issued. CHOIR expressed concern 
with the perceived practice of fish being harvested without a confirmed 
buyer and unsold fish being discarded at sea, especially when discarded 
fish may not have been reported. CHOIR surmised that requiring empty 
fish holds would likely ensure that vessels do not harvest excess fish 
or discard unsold fish at sea.
    Response: The proposed measure requiring empty fish holds was 
intended to enhance catch monitoring and discourage wasteful fishing 
practices in the herring fishery. While prohibiting the disposal of 
unsold fish at sea may discourage wasteful fishing practices, there is 
insufficient support in the record to conclude that herring vessels are 
harvesting excess fish and discarding unsold fish at sea. The costs 
associated with a herring trip, including fuel, crew wages, and 
insurance, are substantial, so it is unlikely that vessel operators are 
making herring trips to harvest fish that will ultimately be discarded. 
Additionally, if discarding of unsold fish at sea is occurring, 
Framework 4 explains that it is unclear whether unsold catch disposed 
of at sea on a subsequent trip is reported.
    Part of the justification for the waiver provision is to provide a 
way to verify that fish have been reported and document the extent to 
which vessels are departing on trips with fish in their fish holds. 
However, Framework 4's proposed waiver provides no way of verifying the 
amount of fish reported relative to the amount of fish left in the 
hold. Therefore, NMFS does not believe this measure contains a viable 
mechanism to verify whether harvested fish that are left in the hold 
were reported by the vessel and is unlikely to improve catch monitoring 
in the herring fishery.
    NMFS disapproved the requirement for empty fish holds because it 
considers the measure inconsistent with the Magnusson-Stevens Act, APA, 
and PRA.
    Comment 11: Seafreeze Ltd. does not support the proposed measure 
requiring fish holds to be empty of fish before a vessel departs on a 
herring trip. Seafreeze Ltd. noted that its processing vessels produce 
a frozen, processed product that would not be discarded at sea. 
Additionally, Seafreeze Ltd. noted that fish cannot be pumped out of 
the fish hold of its harvesting vessel at sea, only in port. For these 
reasons, Seafreeze Ltd. commented that this measure is not applicable 
to its vessels and would impact the vessels unnecessarily.
    Response: NMFS disapproved this measure in Framework 4, so the 
application to frozen fish is not relevant.

[[Page 19051]]

However, had NMFS approved the measure, it would not have applied to a 
frozen product or fish stored in freezers.
    Comment 12: The Sustainable Fisheries Coalition did not have 
consensus whether the empty fish hold requirement should be approved or 
disapproved, but it commented that Framework 4 does not provide 
evidence of the misreporting and wasteful fishing practices that the 
empty fish hold requirement is intended to rectify. The Sustainable 
Fisheries Coalition noted that rarely does a vessel leave port with 
fish in its hold unless it is offloading at multiple locations, storing 
fish for which there is no immediate market, or disposing of poor 
quality fish. Given the absence of a clearly documented problem, the 
Sustainable Fisheries Coalition commented that the cost of delaying a 
trip to obtain a waiver, in order to depart on a herring trip with fish 
in the hold, would be a hardship.
    Response: As described previously, there is insufficient evidence 
in Framework 4 to support claims of misreporting and wasteful fishing 
practices. Additionally, because the proposed measure lacks a mechanism 
to verify or correct the amount of fish reported on the VTR, the 
proposed measure is unlikely to improve catch monitoring in the herring 
fishery. In contrast, the compliance and enforcement costs associated 
with the proposed measure may be high. For example, vessel operators 
needing to dispose of fish at sea may lose time and money waiting for 
an authorized law enforcement officer to travel to their vessel, 
inspect the fish hold, and issue a waiver. Additionally, it would 
likely be time consuming for authorized officers to issue waivers and 
would divert resources from other law enforcement duties.
    Comment 13: The Herring Alliance and CHOIR also commented on 
initiatives to increase monitoring in the herring fishery that are 
related to this action, but are outside the scope of measures 
considered and approved as part of Framework 4. Specifically, the 
commenters recommended that slippage consequence measures should apply 
if electronic monitoring is to be used to monitor the herring fishery 
and that NMFS should provide reasonable cost estimates for electronic 
monitoring as soon as possible to prevent a delay in allowing industry-
funded monitoring to increase monitoring of the herring fishery.
    Response: NMFS is working with the Council to develop measures 
related to these issues. Although NMFS understands the connection 
between these measures and slippage consequence measures established in 
this action, these additional initiatives are outside the scope of 
Framework 4.

Changes From the Proposed Rule

    The proposed rule for Framework 4 contained all the measures in 
that were adopted by the Council in April 2014. As described 
previously, NMFS disapproved the measures requiring fish holds to be 
certified and observers to collect volumetric catch estimates, and fish 
holds to be empty of fish before leaving port, unless a waiver is 
issued by an authorized law enforcement officer. Thus, the regulatory 
requirements associated with those two measures are not included in 
this final rule. Specifically, the following sections from the proposed 
rule have been removed: Sec. Sec.  648.4(a)(10)(iv)(P), 648.11 (m)(5), 
648.14(r)(1)(ii)(D), 648.14(r)(2)(xiii), and 648.204(c) are not being 
implemented in this rule. Additionally, proposed Sec.  648.11(m)(3)(ii) 
was revised to remove provisions related to providing an observer with 
a NMFS-approved measuring stick when requested.
    This final rule also contains minor clarifications to the slippage 
definition, slippage reporting requirements, and slippage consequence 
measures to ensure consistency with slippage requirements for the 
Atlantic mackerel fishery. Specifically, the following sections have 
been revised: Sec. Sec.  648.2, 648.11(m)(4)(C)(iv), and 
648.14(r)(2)(vii), (xi), and (xii). Many vessels participate in both 
the herring and mackerel fisheries and NMFS expects that implementing 
consistent requirements across these fisheries will improve compliance 
and enforcement of slippage requirements. NMFS is revising the 
regulations under the authority of section 305(d) to the Magnuson-
Stevens Act, which provides that the Secretary of Commerce may 
promulgate regulations necessary to ensure that framework adjustments 
to FMPs are carried out in accordance with the FMP and the Magnuson-
Stevens Act.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is consistent with the national standards and other 
provisions of the Magnuson-Stevens Act and other applicable laws.
    The Office of Management and Budget has determined that this rule 
is not significant according to Executive Order 12866.
    This final rule does not contain policies with federalism or 
``takings'' implications, as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has completed a final regulatory flexibility analysis (FRFA) in 
support of Framework 4 in this final rule. The FRFA incorporates the 
IRFA, a summary of the significant issues raised by the public comments 
in response to the IRFA, NMFS responses to those comments, a summary of 
the analyses completed in the Framework 4 EA, and this portion of the 
preamble. A summary of the IRFA was published in the proposed rule for 
this action and is not repeated here. A description of why this action 
was considered, the objectives of, and the legal basis for this rule is 
contained in Framework 4 and in the preamble to the proposed and this 
final rule, and is not repeated here. All of the documents that 
constitute the FRFA are available from NMFS and a copy of the IRFA, the 
RIR, and the EA are available upon request (see ADDRESSES) or via the 
Internet at www.greateratlantic.fisheries.noaa.gov.

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

    NMFS received four comment letters on the proposed rule. Those 
comments, and NMFS' responses, are contained in the Comments and 
Responses section of this final rule and are not repeated here. None of 
the comments addressed the IRFA and NMFS did not make any changes in 
the final rule based on public comment.

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

    This action regulates the activity of vessels with limited access 
herring permits and vessels with Category A or B limited access herring 
permits. Therefore, the regulated entity is the business that owns at 
least one limited access herring permit.
    In 2013, the most recent full year of fishery permit data, 93 
fishing vessels were issued a limited access herring permit. Vessels 
and/or permits may be owned by entities affiliated by stock ownership, 
common management, identity of interest, contractual relationships, or 
economic dependency. For the purposes of this analysis, ownership 
entities are defined as those entities with common ownership personnel 
as listed on permit application documentation. Only

[[Page 19052]]

permits with identical ownership personnel are categorized as an 
affiliated entity. For example, if five permits have the same seven 
personnel listed as co-owners on their application paperwork, those 
seven personnel form one ownership entity, covering those five permits. 
If one or several of the seven owners also own additional vessels, with 
sub-sets of the original seven personnel or with new co-owners, those 
ownership arrangements are deemed to be separate entities for the 
purpose of this analysis.
    Based on this ownership criterion, NMFS dealer data for recent 
years (2010-2013), and the size standards for finfish and shellfish 
firms, there are 68 regulated fishing firms with a limited access 
herring permit. Of those 68 firms, there are 61 small entities and 7 
large entities. Not all of these permitted firms are active: Only 32 
small entities and 5 large entities were actively fishing for herring 
during the last 3 years. Additionally, there are 32 regulated fishing 
firms that hold Category A or B herring permits. Of those 32 firms, 
there are 27 small entities and 5 large entities. Not all of these 
permitted firms are active: Only 19 small entities and 5 large entities 
holding Category A or B herring permits were actively fishing for 
herring during the last 3 years.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This final rule contains collection-of-information requirements 
subject to the PRA that have been approved by the OMB under Control 
Number 0648-0202.
    This action requires all limited access vessels to report slippage 
events via the daily VMS herring catch report. This information is 
intended to improve catch monitoring in the herring fishery. All 
limited access herring vessels are currently required to submit daily 
VMS catch reports, therefore, reporting slippage via VMS is not 
expected to cause any additional time or cost burden above that which 
was previously approved under OMB Control Number 0648-0202. Time 
burdens that were previously approved through OMB Control Number 0648-
0202 include an estimated burden of 5 minutes to complete daily catch 
reports, with an additional 2 minutes if the vessel is also reporting 
all fish kept, and a total burden of 429 hours. Cost burdens that were 
previously approved through OMB Control Number 0648-0202 include an 
estimated burden of $0.60 per transmission of daily catch reports and a 
total burden of $2,323. In a given fishing year, NMFS estimates that 
the additional reporting requirements included in Framework 4 will not 
cause any additional time or cost burden from that which was previously 
approved. 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 provisions of the law, no person is 
required to, nor shall any person be subject to a 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. All currently approved NOAA collections of 
information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

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

    NMFS disapproved two measures in Framework 4 because it determined 
the measures were inconsistent with the Magnuson-Stevens Act, APA, and 
PRA.
    One of the disapproved measures in Framework 4 would have required 
owners of vessels with limited access herring permits to certify the 
capacity of their fish holds and purchase and carry a NMFS-approved 
measuring stick to estimate the volume of fish in the fish hold. Each 
fish hold certification done by a certified marine surveyor is 
estimated to cost $300-$400. The cost of the NMFS-approved measuring 
stick is unknown at this time, but expected to be minimal. Ninety-three 
vessels were issued a limited access herring permit in 2013. Therefore, 
an estimated 93 vessels would have been required to submit a fish hold 
certification at the time of permit issuance in 2016 and obtain and 
carry on board a NMFS-approved measuring stick. By disapproving this 
measure, vessel owners will not incur the costs associated with this 
measure.
    The other disapproved measure in Framework 4 would have required 
vessels with Category A or B herring permits to have fish holds empty 
of fish prior to departing on a herring trip. A waiver may have been 
issued by an authorized law enforcement officer when fish had been 
reported as caught but could not be sold due to condition. Forty-three 
vessels were issued a Category A or B herring permit in 2013. 
Therefore, an estimated 43 vessels would have been required to obtain a 
waiver from an authorized officer prior to leaving the dock on a 
herring trip with fish in the hold. The burden to the vessel operator/
owner associated with obtaining a waiver would be any loss of time and/
or money waiting for an authorized officer to travel to their vessel, 
inspect the fish hold, and issue a waiver. By disapproving this 
measure, vessel owners will not incur the burden associated with this 
measure.
    NMFS is implementing slippage consequence measures for vessels with 
Category A and B herring permits in this rule, including requirements 
to move 15 nautical miles (27.78 km) following an allowable slippage 
event and terminate a trip following a non-allowable slippage event. 
Because non-allowable slippage events are already prohibited in the 
herring fishery, NMFS expects that instances of vessels terminating a 
trip and returning to port following a non-allowable slippage event 
will be rare. Therefore, the requirement to terminate a trip following 
a non-allowable slippage event will not have a significant economic 
impact on vessels with Category A and B herring permits. NMFS also 
expects that the requirement to move 15 nautical miles (27.78 km) 
following an allowable slippage event will also not have a significant 
economic impact on Category A and B vessels. The measure is based on an 
analysis evaluating the distances vessels move during fishing 
operations and is intended to provide sufficient incentive (i.e., cost 
in time and fuel) for herring vessels to minimize slippage, while still 
promoting safety at sea and maximizing opportunities to utilize the 
herring OY. Options for moving 10 nautical miles (16.09 km) and 20 
nautical miles (32.19 km) were also considered in Framework 4, but the 
15-nautical mile (27.78-km) option is being implemented because 15 
nautical miles (27.78 km) is the median value between 10 nautical miles 
(16.09 km) and 20 nautical miles (32.19 km). Additionally, this measure 
applies uniformly to all vessels that slip catch, unlike other 
considered alternatives (e.g., leaving a management area, leaving a 
statistical area) in Framework 4 where the magnitude of the move, and 
resulting economic impacts, would have depended upon the location of 
the allowable slippage event.
    This rule also implements clarifications and minor corrections to 
existing regulations. These clarifications and minor corrections are 
intended to clarify existing slippage measures; allow vessels to 
transit herring management areas during periods when zero percent of 
the sub-ACL for those areas is available for harvest, provided gear was 
stowed and not available for use; and correcting coordinates for 
Herring

[[Page 19053]]

Management Area 2 to more accurately define the area. NMFS expects 
these clarifications and corrections to facilitate operation of the 
herring fishery.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 29, 2016.
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 definition for ``Slippage in the Atlantic 
herring fishery'' is removed and the definitions for ``Operational 
discards in the Atlantic herring fishery'' and ``Slip(s) or slipping 
catch in the Atlantic herring fishery'' are added in alphabetical order 
to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Operational discards in the Atlantic herring fishery means small 
amounts of fish that cannot be pumped on board and remain in the codend 
or seine at the end of pumping operations. Leaving small amounts of 
fish in the codend or seine at the end of pumping operations is 
operationally discarding catch.
* * * * *
    Slip(s) or slipping catch in the Atlantic herring fishery means 
discarded catch from a vessel issued an Atlantic herring permit that is 
carrying a NMFS-approved observer prior to the catch being brought on 
board or prior to the catch being made available for sampling and 
inspection by a NMFS-approved observer after the catch is on board. 
Slip(s) or slipping catch includes releasing fish from a codend or 
seine prior to the completion of pumping the fish on board and the 
release of fish from a codend or seine while the codend or seine is in 
the water. Slippage or slipped catch refers to fish that are slipped. 
Slippage or slipped catch does not include operational discards, 
discards that occur after the catch is brought on board and made 
available for sampling and inspection by a NMFS-approved observer, or 
fish that inadvertently fall out of or off fishing gear as gear is 
being brought on board the vessel.
* * * * *

0
3. In Sec.  648.11, paragraph (m)(4) is revised to read as follows:


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

* * * * *
    (m) * * *
    (4) Measures to address slippage. (i) No vessel issued a limited 
access herring permit may slip catch, as defined at Sec.  648.2, 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, including gear damage, 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 a vessel issued any limited access herring permit slips 
catch, the vessel operator must report the slippage event on the 
Atlantic herring daily VMS catch report and indicate the reason for 
slipping catch. Additionally, 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 the reason for slipping 
catch; the estimated weight of each species brought on board or slipped 
on that tow. A completed affidavit must be submitted to NMFS within 48 
hr of the end of the trip.
    (iv) If a vessel issued an All Areas or Areas 2/3 Limited Access 
Herring permit slips catch for any of the reasons described in 
paragraph (m)(4)(i) of this section, the vessel operator must move at 
least 15 nm (27.78 km) from the location of the slippage event before 
deploying any gear again, and must stay at least 15 nm (27.78 km) away 
from the slippage event location for the remainder of the fishing trip.
    (v) If catch is slipped by a vessel issued an All Areas or Areas 2/
3 Limited Access Herring permit for any reason not described in 
paragraph (m)(4)(i) of this section, the vessel operator must 
immediately terminate the trip and return to port. No fishing activity 
may occur during the return to port.
* * * * *

0
4. In Sec.  648.14, paragraph (r)(1)(vii)(F) is added and paragraphs 
(r)(2)(v) through (xii) are revised to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (vii) * * *
    (F) Transit or be in an area that has zero percent sub-ACL 
available for harvest specified at Sec.  648.201(d) with herring on 
board, unless such herring were caught in an area or areas with an 
available sub-ACL specified at Sec.  648.201(d), all fishing gear is 
stowed and not available for immediate use as defined in Sec.  648.2, 
and the vessel is issued a vessel permit that authorizes the amount of 
herring on board for the area where the herring was harvested.
* * * * *
    (2) * * *
    (v) 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.
    (vi) Slip or operationally discard catch, as defined at Sec.  
648.2, unless for one of the reasons specified at Sec.  648.202(b)(2), 
if fishing any part of a tow inside the Northeast Multispecies Closed 
Areas, as defined at Sec.  648.81(a) through (e).
    (vii) Fail to immediately leave the Northeast Multispecies Closed 
Areas or comply with reporting requirements after slipping catch or 
operationally discarding catch, as required by Sec.  648.202(b)(4).
    (viii) Slip catch, as defined at Sec.  648.2, unless for one the 
reasons specified at Sec.  648.11(m)(4)(i).
    (ix) For vessels with All Areas or Areas 2/3 Limited Access Herring 
Permits, fail to move 15 nm (27.78 km), as required by Sec.  
648.11(m)(4)(iv) and Sec.  648.202(b)(4)(iv).
    (x) For vessels with All Areas or Areas 2/3 Limited Access Herring 
Permits, fail to immediately return to port, as required by Sec.  
648.11(m)(4)(v) and Sec.  648.202(b)(4)(iv).
    (xi) Fail to complete, sign, and submit a Released Catch Affidavit 
as required by Sec.  648.11(m)(4)(iii) and Sec.  648.202(b)(4)(ii).
    (xii) Fail to report or fail to accurately report a slippage event 
on the Atlantic

[[Page 19054]]

herring daily VMS catch report, as required by Sec.  648.11(m)(4)(iii) 
and Sec.  648.202(b)(4)(iii).
* * * * *


Sec.  648.80  [Amended]

0
5. In Sec.  648.80, paragraph (d)(7) is removed.
0
6. In Sec.  648.200, paragraph (f)(2) is revised to read as follows:


Sec.  648.200  Specifications.

* * * * *
    (f) * * *
    (2) Management Area 2 (South Coastal Area): All state and Federal 
waters inclusive of sounds and bays, bounded on the east by 70[deg]00' 
W. long. and the outer limit of the U.S. Exclusive Economic Zone; 
bounded on the north and west by the southern coastline of Cape Cod, 
Massachusetts, and the coastlines of Rhode Island, Connecticut, New 
York, New Jersey, Delaware, Maryland, Virginia, and North Carolina; and 
bounded on the south by a line following the lateral seaward boundary 
between North Carolina and South Carolina from the coast to the 
Submerged Lands Act line, approximately 33[deg]48'46.37'' N. lat., 
78[deg]29'46.46'' W. long., and then heading due east along 
33[deg]48'46.37'' N. lat. to the outer limit of the US Exclusive 
Economic Zone.
* * * * *

0
7. In Sec.  648.201, paragraphs (e) and (f) are revised and paragraph 
(g) is added to read as follows:


Sec.  648.201  AMs and harvest controls.

* * * * *
    (e) A vessel may transit an area that has zero percent sub-ACL 
available for harvest specified in paragraph (d) of this section with 
herring on board, provided such herring were caught in an area or areas 
with sub-ACL available specified in paragraph (d) of this section, that 
all fishing gear is stowed and not available for immediate use as 
defined in Sec.  648.2, and the vessel is issued a permit that 
authorizes the amount of herring on board for the area where the 
herring was harvested.
    (f) Up to 500 mt of the Area 1A sub-ACL shall be allocated for the 
fixed gear fisheries in Area 1A (weirs and stop seines) that occur west 
of 67[deg]16.8' W. long (Cutler, Maine). This set-aside shall be 
available for harvest by fixed gear within the specified area until 
November 1 of each fishing year. Any portion of this allocation that 
has not been utilized by November 1 shall be restored to the sub-ACL 
allocation for Area 1A.
    (g) Carryover. Subject to the conditions described in this 
paragraph (g), unharvested catch in a herring management area in a 
fishing year (up to 10 percent of that area's sub-ACL) shall be carried 
over and added to the sub-ACL for that herring management area for the 
fishing year following the year when total catch is determined. For 
example, NMFS will determine total catch from Year 1 during Year 2, and 
will add carryover to the applicable sub-ACL(s) in Year 3. All such 
carryover shall be based on the herring management area's initial sub-
ACL allocation for the fishing year, not the sub-ACL as increased by 
carryover or decreased by an overage deduction, as specified in 
paragraph (a)(3) of this section. All herring landed from a herring 
management area shall count against that area's sub-ACL, as increased 
by carryover. For example, if 500 mt of herring is added as carryover 
to a 5,000 mt sub-ACL, catch in that management area would be tracked 
against a total sub-ACL of 5,500 mt. NMFS shall add sub-ACL carryover 
only if the ACL, specified consistent with Sec.  648.200(b)(3), for the 
fishing year in which there is unharvested herring, is not exceeded. 
The ACL, consistent with Sec.  648.200(b)(3), shall not be increased by 
carryover specified in this paragraph (g).
    8. In Sec.  648.202, paragraphs (b)(2) introductory text, 
(b)(2)(ii), (b)(4) introductory text, and (b)(4)(ii) are revised, and 
paragraphs (b)(4)(iii) and (iv) are added to read as follows:


Sec.  648.202  Season and area restrictions.

* * * * *
    (b) * * *
    (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 slip or operationally discard catch, as defined 
at Sec.  648.2, except in the following circumstances:
* * * * *
    (ii) A mechanical failure, including gear damage, precludes 
bringing some or all of the catch on board the vessel for inspection; 
or,
* * * * *
    (4) If catch is slipped or operational discarded by a vessel, the 
vessel operator must:
* * * * *
    (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.
    (iii) Report slippage events on the Atlantic herring daily VMS 
catch report and indicate the reason for slipping catch if the vessel 
was issued a limited access herring permit.
    (iv) Comply with the measures to address slippage specified in 
Sec.  648.11(m)(4)(iv) and (v) if the vessel was issued an All Areas or 
Areas 2/3 Limited Access Herring Permit.

[FR Doc. 2016-07583 Filed 4-1-16; 8:45 am]
BILLING CODE 3510-22-P