[Federal Register Volume 84, Number 27 (Friday, February 8, 2019)]
[Rules and Regulations]
[Pages 2760-2767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01658]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 181031994-9022-02]
RIN 0648-XG608-X


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Atlantic Herring Fishery; Adjustment to Atlantic Herring 
Specifications and Sub-Annual Catch Limits for 2019

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

ACTION: Final rule.

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SUMMARY: This action implements an in-season adjustment to the Atlantic 
herring specifications and sub-annual catch limits for 2019. These 
adjustments are necessary to reduce 2018 herring catch limits that 
would otherwise remain in effect for 2019. This action is expected to 
prevent overfishing of the herring resource and lower the risk of the 
stock becoming overfished.

DATES: Effective February 8, 2019.

ADDRESSES: Copies of this action, including the Supplemental 
Environmental Assessment and the Regulatory Impact Review/Initial 
Regulatory Flexibility Analysis (SEA/RIR/IRFA) prepared in support of 
this action, are available from Michael Pentony, Regional 
Administrator, 55 Great Republic Drive, Gloucester, MA 01930. Documents 
are also accessible via the internet at: https://www.nefmc.org.

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

SUPPLEMENTARY INFORMATION:

Background

    We published a proposed rule for the in-season adjustment to 
Atlantic herring specifications and sub-annual catch limits (ACLs) for 
2019 on November 30, 2018 (83 FR 61593). The comment period on the 
proposed rule ended on December 31, 2018. We received 22 comment 
letters on the proposed rule, which are summarized in the Comments and 
Responses section of this final rule.
    We implemented 2016-2018 herring specifications on November 1, 2016 
(81 FR 75731), as recommended by the New England Fishery Management 
Council. The specifications included an overfishing limit (OFL) of 
111,000 mt for 2018. The acceptable biological catch (ABC) for 2018 was 
also set at 111,000 mt. The ABC was based on the Council's interim 
control rule, set equal to the OFL with at least a 50-percent 
probability of preventing overfishing, and consistent with the 
Council's Scientific and Statistical Committee's (SSC) advice. The 
annual catch limit (ACL) for 2018 was 104,800 mt.
    In June 2018, a new Northeast Regional Stock Assessment Workshop 
(SAW) for herring, reviewed by the Stock Assessment Review Committee 
(SARC), was completed. The assessment concluded that although herring 
was not overfished and overfishing was not occurring in 2017, poor 
recruitment would likely result in a substantial decline in herring 
biomass. The stock assessment estimated that recruitment had been at 
historic lows during the most recent 5 years (2013-2017). The 
assessment projected that biomass could increase, after reaching a low 
in 2019, if recruitment returns to average levels, but that herring 
catch would need to be reduced, starting in 2018, to prevent 
overfishing and lower the risk of the stock becoming overfished. The 
final assessment summary report is available on the Northeast Fisheries 
Science Center (NEFSC) website (www.nefsc.noaa.gov/publications/).
    The Atlantic Herring Fishery Management Plan (FMP) allows NMFS to 
make in-season adjustments to the herring specifications and sub-ACLs 
to achieve conservation and management objectives, after consultation 
with the Council, consistent with the Herring FMP's objectives and 
other FMP provisions. In August 2018, at the request of the Council, we 
used an in-season adjustment to reduce the 2018 ACL from 104,800 mt to 
49,900 mt to reduce the risk of overfishing in 2018 (83 FR 42450, 
August 22, 2018). This resulted in at least a 50-percent probability of 
preventing overfishing projected for 2018. However, assessment 
projections indicated that catch would need to be further reduced in 
2019 to prevent overfishing and lower the risk of the stock becoming 
overfished.

[[Page 2761]]

    By regulation, herring catch limits for 2018, as modified by the 
2018 in-season adjustment, remain in effect until replaced. At its 
September 2018 meeting, the Council adopted a new ABC control rule for 
the herring fishery developed in Amendment 8 to the Herring FMP and 
requested we use an in-season adjustment to reduce 2018 herring catch 
limits for 2019 while it develops new specifications starting in 2020. 
The Council was scheduled to begin developing the 2019-2021 herring 
specifications at its September meeting and take final action on the 
new specifications at its December 2018 meeting. The Council planned 
for us to implement the new specifications during 2019, based on the 
new ABC control rule it adopted in Amendment 8. However, because of the 
time required for the Council to prepare the necessary documentation 
and for us to review and approve the control rule in Amendment 8 and 
implement final approved measures, the new specifications would not 
have been effective early enough to prevent catch from exceeding the 
lower catch limits required to prevent overfishing in 2019.
    To assist us with developing the 2019 in-season adjustment, the 
Council discussed options for 2019 catch limits at its September 2018 
meeting and recommended that we:
     Use the most recent assessment and projections to develop 
the 2019 specifications;
     Use the ABC control rule approved by the Council in 
Amendment 8;
     Maintain the sub-ACLs for herring management areas based 
on the proportions allocated in the 2016-2018 specifications package, 
including;
    [cir] Area 1A: 28.9 percent,
    [cir] Area 1B: 4.3 percent,
    [cir] Area 2: 27.8 percent,
    [cir] Area 3: 39 percent;
     Proportionally reduce the fixed gear set-aside allocation 
which is based on a small weir fishery west of Cutler, ME; and
     Set the border transfer (which allows U.S. vessels to 
transfer herring to Canadian vessels to be processed as food) at 0 mt.
    The SSC met on October 10, 2018, to review the recent herring stock 
assessment and consider herring catch limits. The term of reference for 
the meeting specified that the SSC use the new ABC control rule adopted 
by the Council in Amendment 8 to recommend the OFL and ABCs for 2019-
2021. After reviewing the results of the stock assessment and 
information compiled by the Council's Herring Plan Development Team 
(PDT), the SSC recommended herring OFLs of 30,688 mt in 2019, 38,878 mt 
in 2020, and 59,788 mt in 2021. The SSC also recommended that herring 
ABCs should not exceed 21,266 mt in 2019, 16,131 mt in 2020, and 16,131 
mt in 2021. The SSC was concerned that the new assessment's recruitment 
projections used a long-term average, rather than weighting recent low 
recruitment, resulting in a substantial projected biomass increase for 
2021. To mitigate its concerns, the SSC recommended maintaining the 
2020 ABC (16,131 mt) for 2021, updating the herring assessment in 2020, 
and investigating herring's recent low recruitment. The assessment 
update would enable the SSC to reconsider its 2021 ABC recommendation 
based on updated estimates of recruitment and biomass.
    In response to the Council's request for an in-season adjustment of 
2018 herring catch limits for 2019, we proposed reduced catch limits 
for 2019 in November 2018. The herring ABC we proposed for 2019, as 
well as the resulting ACL and sub-ACLs, while consistent with methods 
used to set recent specifications, were higher than limits recommended 
by the Council and SSC. Our proposed herring catch limits were based on 
an ABC with a 50-percent probability of preventing overfishing (30,688 
mt). In contrast, the Council's recommended 2019 catch limits were 
based on an ABC of 21,266 mt, generated using the new control rule 
developed in Amendment 8, and estimated to have a 15-percent 
probability of overfishing. While the sub-ACL values we proposed for 
2019 were higher than those recommended by the Council, our proposed 
method to allocate catch to the sub-ACLs was consistent with Council 
recommendations. We intended the proposed catch limits to balance 
preventing overfishing with maintaining a viable herring fishery to 
achieve optimum yield (OY), while we consider approval and 
implementation of a long-term ABC control rule in Amendment 8.
    The Council discussed our proposed 2019 herring catch limits at its 
December 2018 meeting, at which time it firmly reiterated its original 
recommendations that catch limits be based on an ABC of 21,266 mt and 
sub-ACL allocations be consistent with recent specifications. The 
Council explained the necessity of lowering the risks of overfishing 
and the stock becoming overfished, especially given the uncertainty 
associated with the assessment's projections of herring biomass and 
recruitment. It expressed concern that higher catch in 2019 would 
result in even lower catch limits for 2020. While the Council 
acknowledged that negative economic impacts on the fishing industry 
would be greater under the lower catch limits, it stressed that 
conservation benefits outweighed the short-term revenue considerations. 
The Council also explained that maintaining recent sub-ACL allocations 
prevents overfishing on any one sub-component of the herring stock and 
helps minimize negative economic impacts associated with reduced catch 
limits by providing fishery access to all gear types and management 
areas. Following the Council meeting, the Council further detailed its 
rationale for its recommended 2019 herring catch limits in a December 
13, 2018, letter to us.
    We work closely with the Council for sustainable management of New 
England fisheries. The Council develops harvest policies for its 
fisheries and we tend to defer harvest policy decisions to the Council, 
unless those policies are inconsistent with the Magnuson-Stevens 
Fishery Conservation and Management Act or other applicable law. The 
Council expressed concern with our proposed herring catch limits for 
2019 and recommended limits be lowered to prevent overfishing and lower 
the risk of the stock becoming overfished. After considering the 
Council's policy concerns and to better account for scientific 
uncertainty, we are adjusting the 2018 herring specifications and sub-
ACLs for 2019 to achieve conservation and management objectives, 
consistent with the Council's recommendations, Herring FMP objectives, 
and other Herring FMP provisions. The final 2019 herring catch limits 
implemented in this in-season adjustment are shown in Table 1 below.

  Table 1--Final Atlantic Herring Specifications and Sub-ACLs for 2019
                                  (mt)
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Overfishing Limit..........................  30,668.
ABC........................................  21,266.
Management Uncertainty.....................  6,200.
OY/ACL.....................................  15,065.*
Domestic Annual Harvest....................  15,065.
Border Transfer............................  0.
Domestic Annual Processing.................  15,065.
U.S. At-Sea Processing.....................  0.
Area 1A Sub-ACL (28.9%)....................  4,354.*
Area 1B Sub-ACL (4.3%).....................  647.
Area 2 Sub-ACL (27.8%).....................  4,188.
Area 3 Sub-ACL (39%).......................  5,876.
Fixed Gear Set-Aside.......................  39.
Research Set-Aside.........................  3% of sub-ACLs.
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* If New Brunswick weir fishery catch through October 1 is less than
  4,000 mt, then 1,000 mt will be subtracted from the management
  uncertainty buffer and added to the ACL and Area 1A Sub-ACL.


[[Page 2762]]

    Based on the best available science, we are reducing the OFL for 
2019 to 30,668 mt. Please note that a typographic error in the PDT's 
October 2018 report changed the ABC with a 50-percent probability of 
preventing overfishing from 30,668 mt to 30,688 mt. That mistake was 
perpetuated in the SSC's OFL recommendation for 2019 and in our 
November 2018 proposed rule. The correct value for an OFL with a 50-
percent probability of preventing overfishing in 2019 is 30,668 mt. The 
Herring FMP specifies that the OFL must be equal to catch resulting 
from applying the maximum fishing mortality threshold to a current or 
projected estimate of stock size. When the stock is not overfished and 
overfishing is not occurring, this is usually the fishing rate 
supporting maximum sustainable yield. Catching in excess of this amount 
is considered to be overfishing. An OFL of 30,668 mt would result in 
approximately a 50-percent probability of preventing overfishing in 
2019. This OFL is based on projections by the SAW/SARC, as updated by 
NOAA's NEFSC staff using 2018 catch, and is consistent with the SSC 
recommendation.
    The Herring FMP specifies that the ABC may be equal to or less than 
the OFL depending on scientific uncertainty concerning stock size 
estimates, variability around recruitment estimates, and consideration 
of ecosystem issues. We are reducing the ABC to 21,266 mt for 2019. 
This ABC accounts for scientific uncertainty in the stock assessment's 
projected estimates of herring biomass and recruitment and we expect it 
will prevent overfishing, lower the risk of the stock becoming 
overfished, and reduce catch level variability between 2019 and 2020. 
Our decision to implement a 2019 ABC consistent with the Council's 
recommendation for this in-season adjustment is independent of and 
involves different considerations than our consideration of the 
Council's recommended control rule in Amendment 8. We expect the 
Council to submit Amendment 8 to us for review and approval in early 
2019.
    The Herring FMP specifies that the ACL is reduced from the ABC to 
account for management uncertainty, and the primary source of 
management uncertainty is catch in the New Brunswick weir fishery. We 
are maintaining the current management uncertainty buffer (6,200 mt), 
as recommended by the Council, so the resulting herring ACL/OY is 
15,065 mt for 2019. Catch in the New Brunswick weir fishery is 
variable. The value of the current buffer is based on average catch 
during 2009-2011. Like catch in 2010 (10,958 mt), New Brunswick weir 
catch in 2018 was much higher than average (11,500 mt). Because the 
average of recent New Brunswick weir catch (2016-2018) is 5,900 mt and 
years with high weir catches are typically not consecutive, we expect a 
buffer of 6,200 mt to appropriately account for management uncertainty 
in 2019.
    We are maintaining the sub-ACL allocations used in the recent 
specifications (2016-2018) for 2019. This means that 28.9 percent of 
the ACL is allocated to Area 1A, 4.3 percent is allocated to Area 1B, 
27.8 percent is allocated to Area 2, and 39 percent is allocated to 
Area 3. These sub-ACL allocations were recommended by the Council for 
past specifications, as well as for 2019, because they do not 
substantially impact one stock component (inshore versus offshore) more 
than the other while providing fishing opportunities for all gears 
types and all management areas.
    Based on the Council's recommendations, we are reducing border 
transfer to 0 mt and the fixed gear set-aside to 39 mt for 2019. Border 
transfer is a processing quota and is the maximum amount of herring 
that can be transshipped to Canada via Canadian carrier vessels for 
human consumption. Border transfer has been under-utilized in recent 
years, and there has been no border transfer since 2015. Reducing the 
border transfer to 0 mt for 2019 would ensure all herring caught in 
U.S. waters are available to U.S. federally permitted dealers for 
lobster bait or human consumption. Additionally, we are proportionally 
reducing the fixed gear set-aside, relative to the Area 1A sub-ACL, to 
39 mt. The Herring FMP allows up to 500 mt of the Area 1A sub-ACL to 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 is 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 harvested by November 1 is transferred 
back to the sub-ACL allocation for Area 1A. We expect that reducing the 
fixed gear set aside will allow additional herring harvest to be 
available to both fixed and mobile gears in Area 1A helping ensure OY 
is achieved. As with the border transfer, the fixed gear set-aside has 
been under-utilized in recent years. Fixed gear landings tracked 
against the set-aside have averaged less than 12 mt in the past 5 
years.
    The Herring FMP requires we adjust for catch overages and underages 
in a subsequent year. Total catch in 2017 did not reach or exceed any 
of the management area sub-ACLs, so typically we would carryover those 
underages, or a portion of the underages, to increase sub-ACLs in 2019. 
However, to help ensure catch does not exceed the ABC in 2019, we are 
not increasing any sub-ACLs in 2019 to adjust for underages in 2017.
    Values for domestic annual harvest and domestic annual processing 
in 2019 are adjusted consistent with the specifications for OY and 
border transfer. All other herring specifications for 2019, including 
the river herring and shad catch caps, remain unchanged from 2018.

Changes From the Proposed Rule

    This in-season adjustment implements herring specifications and 
sub-ACLs for 2019 that are lower than our proposed 2019 herring limits. 
All changes from the proposed rule are consistent with Council 
recommendations and intended to lower the risks of overfishing and the 
stock becoming overfished. Changes between our proposed and final 
herring specifications and sub-ACLs are shown in Table 2 below. While 
the values for sub-ACLs and the fixed gear set-aside are different than 
those proposed, the methods to allocate sub-ACLs and adjust the fixed 
gear set-aside are the same. The specifications for management 
uncertainty, domestic annual harvest, border transfer, domestic annual 
processing, and research set-aside are the same as those proposed. All 
other specifications, including river herring and shad catch caps, 
remain unchanged from 2018.

         Table 2--Difference in Proposed and Final Atlantic Herring Specifications and Sub-ACLs for 2019
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                                                                   Proposed  for  Final for 2019    Difference
                         Specifications                             2019  (mt)          (mt)           (mt)
----------------------------------------------------------------------------------------------------------------
OFL.............................................................          30,688          30,668           * -20

[[Page 2763]]

 
ABC.............................................................          30,688          21,266          -9,422
OY/ACL..........................................................          24,488          15,065          -9,423
Domestic Annual Harvest.........................................          24,488          15,065          -9,423
Domestic Annual Processing......................................          24,488          15,065          -9,423
Area 1A Sub-ACL (28.9%).........................................           7,077           4,354          -2,723
Area 1B Sub-ACL (4.3%)..........................................           1,053             647            -406
Area 2 Sub-ACL (27.8%)..........................................           6,808           4,188          -2,620
Area 3 Sub-ACL (39%)............................................           9,550           5,876          -3,674
Fixed Gear Set-Aside............................................              64              39             -25
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* Difference due to correcting a typographical error in the value of the OFL.

    Projections used to generate the proposed 2019 ABC assumed 49,900 
mt of herring catch in 2018. After publication of the proposed rule, we 
learned that total herring catch for 2018, including 11,500 mt of catch 
in the New Brunswick weir fishery that is not counted against the ACL 
but used for assessing status of the herring stock, actually totaled 
54,896 mt. This means that the proposed ABC likely has less than a 50-
percent probability of preventing overfishing in 2019. We intended to 
explore ABC options for this final rule that were lower than 30,688 mt 
but higher than 21,266 mt, in hopes of finding a balance between 
conserving the herring stock and minimizing negative economic impacts 
on the fishing industry. However, the lapse in appropriations resulting 
in the partial government shutdown starting on December 22, 2018, 
prevented us from working with staff from the NEFSC to analyze 
additional alternatives. Setting the final ABC lower than the OFL 
better accounts for scientific uncertainty to ensure catch limits will 
prevent overfishing and meet the Herring FMP's goals and objectives.

Herring Research Set-Aside Exempted Fishing Permits

    In the proposed rule, we solicited public comment on exempted 
fishing permits (EFPs) used to exempt vessels from certain herring 
management regulations to support herring research set-aside (RSA) 
compensation fishing. Consistent with previous herring RSA EFPs, 
vessels would be allowed to harvest herring RSA in a management area 
after a sub-ACL had been caught and the herring fishery is limited to 
2,000 lb (907 kg) of herring per day/trip in that area. EFPs would also 
allow vessels to harvest RSA during times when the sub-ACLs are not 
seasonally available for harvest, specifically during January through 
May in Area 1A and January through April in Area 1B. We received no 
comments on the EFPs, so we intend to issue EFPs to facilitate herring 
RSA compensation fishing in support of the projects funded under the 
2019 Herring RSA Program.

Comments and Responses

    We received 22 comment letters on the proposed rule: 11 from 
participants in the herring and lobster fisheries; 2 from fishing 
industry organizations (Maine Lobstermen's Association (MLA) and New 
England Purse Seiner's Alliance (NEPSA)); 2 from states (Massachusetts 
Division of Marine Fisheries (MA DMF) and Maine Division of Marine 
Resources (ME DMR)); 2 from environmental advocacy groups (Conservation 
Law Foundation (CLF)/Natural Resources Defense Council (NRDC) and 
Earthjustice); 2 from participants in other fisheries (tuna and 
recreational); 1 from the Council; 1 from the Town of Wellfleet; and 1 
from a member of the public.
    Comment 1: Several commenters supported the Council's recommended 
herring ABC of 21,266 mt including: MA DMF; CLF/NRDC; Earthjustice; 
Town of Wellfleet; and one recreational fisheries participant. These 
commenters echoed the Council's rationale for supporting a lower ABC in 
2019 and that rationale is as follows:
     A buffer is needed between the OFL and ABC to account for 
scientific uncertainty associated with the assessment's recruitment and 
biomass projections;
     The lower ABC performs better across several metrics than 
the proposed ABC, including lower probability of overfishing (15 
percent versus 50 percent) and lower variability in yield (between 2019 
and 2020);
     Maintaining fishing mortality at the rate to support 
maximum sustainable yield is not consistent with the Council's risk 
tolerance for herring and applying a lower fishing mortality rate would 
help the stock rebuild more quickly;
     Actual catch in 2018 exceeded 49,900 mt so the proposed 
ABC would have less than a 50-percent probability of preventing 
overfishing in 2019;
     It is uncertain what higher than average catch in the New 
Brunswick weir fishery will mean for stock recruitment;
     The 2020 ABC can be higher under the lower ABC than under 
the proposed ABC;
     The higher ABC results in additional risk to the stock 
that is not justified given the marginal increase in short-term 
revenue; and
     The lower ABC balances the goals and objectives of the 
Herring FMP.
    Additionally, MA DMF commented that the herring stock is less 
likely to become overfished under the lower ABC than under the proposed 
ABC, especially if recruitment projections are not realized. It also 
speculated that the lower ABC in 2020, resulting from higher limits in 
2019, may cause more economic hardship, threaten the viability of the 
herring fishery, and have serious implications for vessels fishing for 
mackerel. Earthjustice and CLF/NRDC contend that the Magnuson-Stevens 
Act prohibits ACLs from being set higher than ABC recommendations by 
the SSC. The Town of Wellfleet commented that the lower ABC better 
provides for herring predators than the proposed ABC.
    Response: We understand the comments made by these stakeholders and 
why they advocate for a lower herring ABC in 2019, even though we do 
not agree that the Magnuson-Stevens Act prohibits us from setting 
harvest limits higher than those recommended by the SSC in this in-
season adjustment.
    For all the reasons we previously described, we are implementing 
the lower ABC (21,266 mt) recommended by the Council for 2019.

[[Page 2764]]

    Comment 2: Several commenters supported the proposed ABC of 30,688 
mt including: ME DMR; NEPSA; MLA; some participants in the herring and 
lobster fisheries; and one participant in the tuna fishery. Their 
rationale for supporting a higher ABC in 2019 is as follows:
     The 2019 ABC should be set consistent with recent 
specifications until the new control rule is reviewed and approved as 
part of Amendment 8;
     The maximum fishing mortality rate of 80 percent 
associated the new control rule is redundant as the stock assessment 
already accounts for the consumption of herring by predators;
     The lower ABC is too restrictive, in hopes of rebuilding 
the stock by limiting fishing, but herring recruitment is primarily 
environmentally-driven;
     The higher ABC helps achieve OY by accounting for social, 
economic, and ecological factors while preventing overfishing and 
mitigating severe economic hardship on the herring and lobster 
fisheries;
     The higher ABC helps support a mackerel fishery in 2019;
     The new control rule would not have prevented the current 
condition of the herring stock and it is an overreaction to the 2018 
stock assessment without consideration for the economic impacts on 
herring, lobster, and mackerel fisheries;
     Leaving an extra 9,000 mt of herring in the water will not 
make an appreciable impact on the future health of herring stock, but 
not doing so will devastate the herring and lobster fisheries;
     The economic impacts of the lower ABC on the fishing 
industry will be severe with participants in the herring fishery 
struggling to maintain their businesses, crews, and facilities and the 
lobster fishery losing access to millions of pounds of lobster bait 
resulting in high prices and shortages; and
     A higher ABC in 2019 would allow the lobster industry time 
to identify alternative sources of bait, coordinate bait distribution, 
and grow infrastructure and storage capacity to minimize the economic 
impacts of reduced herring catch limits.
    Response: We also understand the comments made by these 
stakeholders and why they advocate for a higher herring ABC in 2019. 
While the impacts of less catch and less revenue associated with either 
ABC alternative will negatively impact the fishing industry, we agree 
with the commenters that economic impacts on the fishing industry will 
likely be more severe with implementation of the lower ABC. Because 
actual catch in 2018 was higher than anticipated, the proposed ABC of 
30,688 mt likely has less than a 50-percent probability of preventing 
overfishing in 2019. This means that the higher ABC is no longer a 
viable alternative for 2019. The partial government shutdown that began 
on December 22, 2018, prevented us from analyzing additional ABC 
alternatives. Therefore, to better account for scientific uncertainty 
and prevent overfishing and lower the risk of the stock becoming 
overfished, we are implementing the lower ABC recommended by the 
Council for 2019.
    Comment 3: The Council and some participants in the herring trawl 
fishery expressed support for maintaining recent sub-ACL allocations. 
They commented that the proposed sub-ACL allocations provide harvesting 
opportunities for vessels fishing in offshore areas, small-mesh bottom 
trawl fishing in Area 2, and vessels fishing for mackerel in Area 2.
    Response: We acknowledge these comments and are maintaining the 
recent herring sub-ACL allocations in 2019.
    Comment 4: Several commenters opposed maintaining the recent sub-
ACLs allocations including the MLA, NEPSA, ME DMR, some participants in 
the herring purse seine fishery, some participants in the lobster 
fishery, and one participant in the tuna fishery. They commented that 
more herring should be allocated to Area 1A because:
     Recent allocations do not reflect the availability of the 
herring resource or the effort of the herring fishery;
     Recent allocations do not equally distribute the impact of 
a low ABC across states, so Maine will be more severely impacted than 
other states because of its need for lobster bait;
     If the largest percentage of the ACL is not allocated to 
Area 1A, the ACL may not be harvested;
     Purse seine vessels will be more impacted by a low ABC 
than trawl vessels because they only fish in Area 1A;
     Timing of the Area 1A fishery coincides with the lobster 
fishery's need for fresh bait;
     Allocating the most harvest to Area 1A will help lessen 
the impact of the ABC reduction on the lobster fishery; and
     Unharvested catch should be transferred into areas where 
it can be harvested.
    Response: We understand the concerns expressed in these comments. 
Because sub-ACL allocations have the potential for biological impacts 
on the herring stock and economic impacts on the fishing industry, we 
are deferring to the Council's recommendations for sub-ACL allocations. 
The Council will soon begin developing herring specifications for 2020-
2021 and will likely reconsider sub-ACL allocations at that time. 
Because herring revenue makes up a larger percentage of total revenue 
for purse seine vessels than trawl vessels, we agree that purse seine 
vessels may be more negatively affected by low catch limits than trawl 
vessels. We disagree that sub-ACL allocations will prevent the ACL from 
being harvested in 2019 because recent catch (2016-2018) in each of the 
management areas has been higher than the 2019 sub-ACLs, with the 
exception of Area 2 in 2017. But if there is unharvested herring catch 
available in any of the management areas near the end of the fishing 
year, the Council could request we use an additional in-season 
adjustment to reallocate unharvested catch.
    Comment 5: Earthjustice and CLF/NRDC commented on the river herring 
and shad catch caps for 2019. They cautioned that maintaining the 
current catch caps would allow disproportionately high catch of river 
herring and shad, compared to herring catch, and would not encourage 
vessels to avoid river herring and shad catch or minimize bycatch in 
violation of the Magnuson-Stevens Act.
    Response: We disagree with these comments. In January 2017, 
midwater vessels had only harvested about 3,000 mt of herring from Area 
3 when their catch of river herring and shad approached 80-percent of 
the Cape Cod catch cap. Because the midwater trawl fleet quickly 
modified their fishing behavior to avoid river herring and shad, they 
were able to avoid fully harvesting the Cape Cod catch cap for the 
remainder of 2017. In March 2018, midwater trawl vessels fully 
harvested the Southern New England catch cap, triggering the 2,000-lb 
herring possession limit in the catch cap closure area, in combination 
with less than 6,500 mt of herring from Area 2. Herring catch from Area 
2 remained low for the rest of the year and totaled approximately 7,000 
mt at the end of 2018. These examples illustrate that even at low 
levels of herring catch, the current river herring and shad catch caps 
provide an incentive to avoid river herring and shad and minimize 
bycatch.
    Comment 6: The Council expressed support for reducing border 
transfer to zero so that more herring would be available to the bait 
market. Both the Council and ME DMR expressed support for a fixed gear 
set-aside and the Council noted that the fixed gear set-aside should be 
reduced in proportion to the ABC.

[[Page 2765]]

    Response: We acknowledge these comments and are reducing border 
transfer to zero mt and implementing a fixed gear set-aside of 39 mt 
for 2019, reduced proportionally relative to the Area 1A sub-ACL.
    Comment 7: The NEPSA and one participant in the herring fishery 
supported the in-season transfer of unharvested herring.
    Response: We expect the fishery to be able to fully harvest the 
ACL/OY in 2019, but if there is unharvested herring catch available in 
any of the management areas near the end of the fishing year, the 
Council could request we use an additional in-season adjustment to 
reallocate unharvested catch.
    Comment 8: One participant in the herring fishery expressed support 
for the research set-aside because of the value of the compensation 
fishery, especially if it helps provide access to the mackerel fishery.
    Response: We acknowledge this comment and are setting aside 3-
percent of each sub-ACL for research, consistent with recent 
specifications.
    Comment 9: Several commenters expressed concern with weekly landing 
limits and measures restricting the activity of herring carrier vessels 
in Area 1A.
    Response: Because these measures are recommended by the Atlantic 
States Marine Fisheries Commission and implemented and enforced by 
individual states, they are outside the scope of this action.

Classification

    The Administrator, Greater Atlantic Region, NMFS determined that 
this final rule is necessary for the conservation and management of the 
herring fishery and that it is consistent with the Magnuson-Stevens Act 
and other applicable law.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effectiveness so the purpose of this action is not undermined. 
This action reduces 2018 herring specifications and sub-ACLs to prevent 
overfishing in 2019 with the goals of increasing herring biomass and 
providing future fishery opportunities. This action must be in effect 
as soon as practicable to realize these intended benefits. Because this 
action reduces catch limits that directly relate to preventing 
overfishing while allowing the herring fishery to achieve OY, a 30-day 
delay would be contrary to the public interest.
    The 2018 herring stock assessment concluded that catch would need 
to be reduced in 2019 to prevent overfishing and lower the risk of the 
stock becoming overfished. Before taking this action, we consulted with 
the Council at its September and December 2018 meetings. At those 
meetings, the Council requested that we use an in-season adjustment to 
reduce 2018 herring specifications and sub-ACLs for 2019 to prevent 
overfishing and lower the risk of the stock becoming overfished.
    A delay in implementing these new herring catch limits will 
increase the likelihood that 2019 herring catch will exceed these lower 
limits. These new catch limits are almost 70 percent lower than 2018 
catch limits. Exceeding these limits would result in a lower herring 
biomass and negative economic impacts on the herring industry due to 
further reduced catch limits in 2020 and beyond. Because herring is a 
critical source of bait for the lobster fishery, these negative 
economic impacts are also expected to affect the lobster fishery by 
reducing its bait supply.
    Additionally, we are required to implement a 2,000-lb (907-kg) 
herring possession limit for the remainder of the year in each 
management area once we project 92-percent of an area's sub-ACL is 
harvested. We are also required to implement a 2,000-lb (907-kg) 
herring possession limit for the remainder of the year in all 
management areas once we project 95-percent of the herring ACL is 
harvested. If a delay in implementing this action results in catch 
approaching, or exceeding, the new 2019 catch limits, implementation of 
a herring possession limit is more likely. Early implementation of a 
herring possession limit would be counter to the goals and objectives 
of this action, which is intended to reduce 2019 catch, but also 
continue to provide fishing opportunities for the remainder of the 2019 
fishing year.
    This action is necessary to help rebuild the herring stock and 
maintain the viability of the herring fishing industry and other 
fisheries that rely on herring. Waiving the 30-day delay in 
effectiveness is necessary to fully achieve the conservation and 
economic benefits this action is intended to provide. A 30-day delay in 
effectiveness is unnecessary because it provides no benefit to herring 
conservation or the herring fishing industry. Conversely, a 30-day 
delay could result in a lower herring biomass and negative economic 
impacts to the herring industry due to further reduced catch limits in 
2020 and beyond. For these reasons, NMFS has determined that a 30-day 
delay in the effectiveness of this action is contrary to the public 
interest.
    This final rule is exempt from review under Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared in 
support of this action. 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, and a summary of the analyses 
completed in support of this action. A description of why this action 
was considered, the objectives of, and the legal basis for this rule is 
contained in in the preamble to the proposed and this final rule, and 
is not repeated here. All of the documents that constitute the FRFA and 
a copy of the SEA/RIR/IRFA are available upon request (see ADDRESSES) 
or via the internet at https://www.nefmc.org.

A Statement of the Significant Issues Raised by the Public in Response 
to the IRFA, a Statement 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

    We received 22 comment letters on the proposed rule. Those 
comments, and our responses, are contained in the Comments and 
Responses section of this final rule and are not repeated here. All 
changes from the proposed rule, as well as the rationale for those 
changes, are described in the Changes from the Proposed Rule section of 
this final rule and are not repeated here.

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

    The RFA recognizes three kinds of small entities: Small businesses; 
small organizations; and small governmental jurisdictions. For purposes 
of the RFA only, the small business criteria in the finfish fishing 
industry (NAICS 114111) is a firm that is independently owned and 
operated and not dominant in its field of operation, with gross annual 
receipts of $11 million or less. Small organizations and small 
governmental jurisdictions are not directly regulated by this action.
    There are five permit categories in the herring fishery: (1) 
Limited access permit for all management areas (Category A); (2) 
limited access permit for access to Areas 2 and 3 only (Category B); 
(3) limited access incidental catch permit for 25 mt per trip (Category 
C); (4) an open access incidental catch permit for 3 mt per trip 
(Category D); and (5) an open access permit for limited access mackerel 
permit holders authorizing up to 9 mt per trip (Category E) in Areas 2 
and 3.
    In 2017, there were a total of 1,566 permitted herring vessels. Of 
those, 1,434 were exclusively Category D

[[Page 2766]]

vessels. Of the remaining 132 permitted herring vessels, 22 belonged to 
large businesses. Every Category B permit was also authorized for 
Category C, and all but one Category E permitted vessel also carried a 
Category D authorization. We included Category E vessels that also have 
Category D authorization in the analysis. Table 3 presents the counts 
of permitted vessels by category along with their affiliated entity's 
small or large business status (the status of the company that holds 
the herring permit).

                                                Table 3--Number of Herring Permits by Category, 2015-2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of herring permits
                                                         -----------------------------------------------------------------------------------------------
                Herring permit categories                              2015                            2016                            2017
                                                         -----------------------------------------------------------------------------------------------
                                                               Large           Small           Large           Small           Large           Small
--------------------------------------------------------------------------------------------------------------------------------------------------------
A.......................................................               5              32               5              30               6              30
B/C.....................................................               4               4               4               4               4               4
C (exclusive)...........................................               3              37               3              37               3              37
D (exclusive)...........................................             112           1,222             115           1,306             114           1,320
E.......................................................               9              39               9              40               9              39
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................             133           1,334             136           1,417             136           1,430
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NMFS.

    Table 4 refines the counts from Table 3 to include only those 
vessels that had revenue from herring at least once in the 3-year 
period of analysis. In 2017, there were 4 large businesses and 69 small 
that had revenue from herring.

                                           Table 4--Number of Herring Permits With Herring Revenue, 2015-2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of herring permits
                                                         -----------------------------------------------------------------------------------------------
                Herring permit categories                              2015                            2016                            2017
                                                         -----------------------------------------------------------------------------------------------
                                                               Large           Small           Large           Small           Large           Small
--------------------------------------------------------------------------------------------------------------------------------------------------------
A.......................................................               4              20               4              19               4              19
B/C.....................................................               0               2               0               2               0               3
C (exclusive)...........................................               0              11               0               9               0              12
D (exclusive)...........................................               0              27               0              29               0              31
E.......................................................               0               4               0               1               0               4
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................               4              64               4              60               4              69
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NMFS.

    Finally, Table 5 defines the small entities affected by this 
proposed action--small businesses with a Herring Category A, B, C, or E 
permit and revenue from herring during the 2015-2017 period of 
analysis. There were 37, 31, and 38 such vessels in 2015, 2016, and 
2017 respectively.

                               Table 5--Affected Small Entities, Permitted Herring Vessels With Herring Revenue, 2015-2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of herring permits
                                                         -----------------------------------------------------------------------------------------------
                Herring permit categories                              2015                            2016                            2017
                                                         -----------------------------------------------------------------------------------------------
                                                               Large           Small           Large           Small           Large           Small
--------------------------------------------------------------------------------------------------------------------------------------------------------
A.......................................................               4              20               4              19               4              19
B/C.....................................................               0               2               0               2               0               3
C (exclusive)...........................................               0              11               0               9               0              12
E.......................................................               0               4               0               1               0               4
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................               4              37               4              31               4              38
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NMFS.

    To better understand the impact of this action on the affected 
small businesses, we compared the revenue from herring fishing to total 
revenue brought in by the entity (business) that holds the herring 
permit. The 17 to 18 small entities with Category A permits show the 
most dependence on the herring fishery, with 49.75 percent to 62.03 
percent of their revenue coming from herring landings. The 4 small 
Category E permitted entities have the least dependence on the herring 
fishery with less than one percent of total entity revenue coming from 
the herring fishery.

[[Page 2767]]

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This final rule does not introduce any new reporting, 
recordkeeping, or other compliance requirements.

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

    Regulations at 50 CFR 648.200(e) allow us to make in-season 
adjustments to the herring specifications and sub-ACLs to achieve 
conservation and management objectives, after consultation with the 
Council, consistent with the Herring FMP's objectives and other FMP 
provisions. Specifications and sub-ACLs must also be based on the best 
available scientific information, consistent with National Standard 2 
of the Magnuson-Stevens Act. The adjustments to 2018 herring 
specifications and sub-ACLs for 2019 implemented in this final rule 
satisfy regulatory and statutory requirements while achieving 
conservation and management objectives. Other options that we 
considered, including those that would have had less of an impact on 
small entities, failed to meet one or more of these stated objectives 
and, therefore, could not be implemented.
    Alternative 1 (2018 catch limits) has less than a 50-percent 
probability of preventing overfishing in 2019 and, thus, is 
inconsistent the Magnuson-Stevens Act. Alternative 1 would also 
negatively impact the herring stock by increasing the risk that it 
would become overfished. The primary difference between Alternative 2 
(final 2019 catch limits) and Alternative 3 (catch limits based on an 
ABC of 30,668) are specifications for ABC and the resulting ACL and 
sub-ACLs for 2019. The ABC associated with the Alternative 3 (30,668 
mt) is 9,402 mt higher than the ABC associated with Alternative 2 
(21,266 mt). Projections used to generate Alternative 3 assumed 49,900 
mt of herring catch in 2018. After publication of the proposed rule, we 
learned that total herring catch for 2018, including catch in the New 
Brunswick weir fishery, actually totaled 54,896 mt. This means that 
Alternative 3, like Alternative 1, has less than a 50-percent 
probability of preventing overfishing in 2019 and is also inconsistent 
with the Magnuson-Stevens Act. In its comment letter on the proposed 
rule, the Council also cautioned that Alternative 3's higher ABC is 
inconsistent with the Council's risk tolerance for the herring 
resource. While Alternatives 1 and 3 would have allowed for higher 
total revenue and higher herring revenue than Alternative 2, 
Alternative 2 is the only alternative that meets the conservation and 
management objectives of the regulatory and statutory requirements. The 
impacts of adjustments to herring specifications and sub-ACLs for 2019, 
as implemented by this final rule, are not expected to 
disproportionately affect large or small entities.
    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 shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall 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 
small entity compliance guide was prepared. Copies of this final rule 
are available from the Greater Atlantic Regional Fisheries Office 
(GARFO), and the compliance guide (i.e., fishery bulletin) will be sent 
to all holders of permits for the herring fishery. The guide and this 
final rule will be posted on the GARFO website.

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

    Dated: February 5, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2019-01658 Filed 2-7-19; 8:45 am]
BILLING CODE 3510-22-P