[Federal Register Volume 84, Number 162 (Wednesday, August 21, 2019)]
[Proposed Rules]
[Pages 43573-43576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18032]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-BI80


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Amendment 8

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

ACTION: Availability of proposed fishery management plan amendment; 
request for comments.

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SUMMARY: The New England Fishery Management Council developed Amendment 
8 to the Atlantic Herring Fishery Management Plan to specify a long-
term acceptable biological catch control rule for herring and address 
localized depletion and user group conflict. This amendment would 
establish an acceptable biological catch control rule that accounts for 
herring's role in the ecosystem and prohibit midwater trawling in 
inshore Federal waters from the U.S./Canada border to the Rhode Island/
Connecticut border. Amendment 8 is intended to support sustainable 
management of the herring resource and help ensure that herring is 
available to minimize possible detrimental biological impacts on 
predators of herring and associated socioeconomic impacts on other user 
groups.

DATES: Public comments must be received on or before October 21, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0078, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0078;
    2. Click the ``Comment Now!'' icon and complete the required 
fields; and
    3. Enter or attach your comments.
     Mail: Submit written comments to Michael Pentony, Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Herring Amendment 8.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by us. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Copies of Amendment 8, including the Environmental Impact 
Statement, the Regulatory Impact Review, and the Initial Regulatory 
Flexibility Analysis (EIS/RIR/IRFA) prepared in support of this action 
are available from Thomas A. Nies, Executive Director, New England 
Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 
01950. The supporting documents are also accessible via the internet 
at: http://www.nefmc.org.

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, phone: (978) 281-9272 or email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The goal of the Atlantic Herring Fishery Management Plan (FMP) is 
to manage the herring fishery at long-term sustainable levels and 
objectives of the FMP include providing for full utilization of the 
optimum yield (OY) and, to the extent practicable, controlled 
opportunities for participants in other New England and Mid-Atlantic 
fisheries. The Herring FMP describes OY as the amount of fish that will 
provide the greatest overall benefit to the Nation, particularly with 
respect to food production and recreational opportunities, taking into 
account the protection of marine ecosystems, including maintenance of a 
biomass that supports the ocean ecosystem, predator consumption of 
herring, and biologically sustainable human harvest. This includes 
recognition of the importance of herring as one of many forage species 
of fish, marine mammals, and birds in the Greater Atlantic Region. 
Consistent with these aims, the goals for Amendment 8 are to: (1) 
Account for the role of herring within the ecosystem,

[[Page 43574]]

including its role as forage; (2) stabilize the fishery at a level 
designed to achieve OY; and (3) address localized depletion in inshore 
waters.
    On February 26, 2015 (80 FR 10458), the New England Fishery 
Management Council (Council) published a notice of intent (NOI) to 
prepare an EIS for Amendment 8 to consider long-term harvest strategies 
for herring, including an ABC control rule that addresses the 
biological and ecological requirements of the herring resource. The 
importance of herring as a forage species was underscored by the 
Council's specified intent to consider a wide range of ABC control rule 
alternatives, including those that explicitly account for herring's 
role in the ecosystem. The Council held scoping meetings during March 
and April of 2015 to solicit comments on ABC control rule alternatives.
    The Council developed alternatives for a herring ABC control rule 
using a Management Strategy Evaluation (MSE). MSE is a decision-making 
tool that uses computer modeling to compare the performance of 
alternatives (management strategies) under various management scenarios 
to achieve multiple, competing objectives. The Council held two public 
workshops to generate stakeholder input to help identify objectives for 
the MSE analysis. Results of the MSE informed the range of ABC control 
rule alternatives and impact analysis of those alternatives in 
Amendment 8.
    On August 21, 2015 (80 FR 50825), the Council published a 
supplemental NOI announcing it was expanding the scope of Amendment 8 
to consider localized depletion in inshore waters. The supplemental NOI 
defined localize depletion as harvesting more fish from an area than 
can be replaced within a given time period. It also explained the 
Council was seeking input from the interested public as to how to 
define; measure; evaluate impacts; and minimize inshore, localized 
depletion in the herring fishery as part of Amendment 8. Public comment 
during the supplemental scoping made it clear that localized depletion 
concerns voiced by many stakeholders were not just related to the 
biological impacts of herring removals on the herring stock and on 
predators of herring. Public comment also indicated that impacts of 
localized depletion should be measured and evaluated relative to 
competing uses for the herring resource and potentially negative 
economic impacts on businesses that rely on predators of herring. In 
response, the Council's consideration of localized depletion included a 
consideration of competing interests for how herring should be 
utilized, and it identified this consideration of the localized 
depletion issue as user group conflict. Minimizing user group conflict 
became an important Council consideration in Amendment 8 and, in part, 
the basis for its recommended measures in the amendment.
    On May 11, 2018 (83 FR 22060), the Environmental Protection Agency 
announced the public comment period for the Amendment 8 draft 
environmental impact statement (DEIS). The 45-day public comment period 
extended until June 25, 2018. During that time, the Council held public 
hearings on the DEIS in Rockland and Portland, Maine; Gloucester and 
Chatham, Massachusetts; Narragansett, Rhode Island; Philadelphia, 
Pennsylvania; and via webinar. The Council adopted Amendment 8 on 
September 25, 2018, and submitted the amendment to us for review in 
2019.

Proposed Measures

    Amendment 8 would establish a long-term ABC control rule for 
herring. Under the proposed control rule, when biomass is at or above 
50 percent of the biomass associated with maximum sustainable yield 
(BMSY) or its proxy, ABC is the catch associated with a 
maximum fishing mortality (F) of 80 percent of FMSY or its 
proxy. When biomass falls below 50 percent of BMSY or its 
proxy, F declines linearly to 0 at 10 percent of BMSY or its 
proxy. The control rule would set ABC for a three-year period but would 
allow ABC to vary year-to-year in response to projected changes in 
biomass. The control rule could be revised via a framework adjustment 
if a quantitative assessment is not available, if projections are 
producing ABCs that are not justified or consistent with available 
information, or if the stock requires a rebuilding program.
    The proposed control rule is intended to explicitly account for 
herring as forage in the ecosystem by limiting F to 80 percent of 
FMSY when biomass is high and setting it at zero when 
biomass is low. It is also intended to generate an ABC consistent with 
specific criteria identified by the Council, including low variation in 
yield, low probability of the stock becoming overfished, low 
probability of a fishery shutdown, and catch limits set at a relatively 
high proportion of MSY. The Council anticipates that short-term 
negative economic impacts on participants in the herring or lobster 
fisheries, resulting from a reduced herring harvest in response to low 
herring biomass, may become a long-term economic benefit for industry 
participants, especially if the proposed control rule results in low 
variation in yield, low probability of a fishery shutdown, and low 
probability of overfishing. Relative to other control rules considered 
by the Council, the proposed control rule is designed to more 
effectively balance the goal and objectives of the Herring FMP, 
including managing the fishery at long-term sustainable levels, taking 
forage for predators into account to support the ocean ecosystem, and 
providing a biologically sustainable harvest as a source of revenue for 
fishing communities and bait for the lobster fishery.
    Shortly before the Council took final action on Amendment 8, an 
updated stock assessment concluded that herring biomass is low, and the 
probability of overfishing and the stock becoming overfished is high. 
While not directly applicable to a long-term harvest policy, the 
Council noted that under herring's current condition of low biomass, 
setting catch more conservatively than status quo may increase the 
likelihood of stock growth. In turn, this would have positive impacts 
on the herring fishery, predators, and predator fisheries.
    Amendment 8 would also prohibit the use of midwater trawl gear 
inshore of 12 nautical miles (22 km) from the U.S./Canada border to the 
Rhode Island/Connecticut border and inshore of 20 nautical miles (37 
km) off the east coast of Cape Cod. Specifically, federally permitted 
vessels would be prohibited from using, deploying, or fishing with 
midwater trawl gear within the inshore midwater trawl restricted area 
located shoreward of the 12-nautical mile (22-km) territorial sea 
boundary from Canada to Connecticut and within thirty-minute squares 
114 and 99 off Cape Cod (Figure 1). Midwater trawl vessels would be 
able to transit the inshore midwater trawl restricted gear area 
provided gear was stowed and not available for immediate use. The 
proposed measure would be in addition to the existing prohibition on 
midwater trawling for herring in Area 1A during June 1 through 
September 30.
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    The Council recommended the proposed inshore midwater trawl 
restricted area to minimize local depletion and user group conflict 
when midwater trawl vessels harvesting herring overlap with other user 
groups (i.e., commercial fisheries, recreational fisheries, ecotourism) 
that rely on herring as forage and provide inshore conservation 
benefits. The Council focused on midwater trawl gear to mitigate 
potential negative socioeconomic impacts on other user groups in 
response to short duration, high volume herring removals by midwater 
trawl vessels that are relatively more mobile and capable of fishing in 
offshore areas than vessels using other gear types. Information to 
quantify the impact of midwater trawling on other user groups is 
scarce, so the amendment analyzed the degree of overlap between 
midwater trawl vessels and other user groups. The proposed measure is 
intended to incorporate areas with a high degree of overlap between 
midwater trawl vessels and other user groups throughout the year. 
Specifically, it incorporates the overlap with predator fisheries in 
the Gulf of Maine and southern New England throughout the year, as well 
as the overlap with ecotourism and the tuna fishery in Area 1A during 
the fall. While overlap with the midwater trawl vessels does not 
necessarily translate into negative biological impacts on predators, 
less overlap may reduce potential user conflicts, provided midwater 
trawl effort does not shift into other areas and generate additional 
overlap.
    The Herring FMP specifies that herring research set-aside (RSA) can 
equal up to three percent of the sub-annual catch limit for a herring 
management area. RSA compensation fishing using midwater trawl gear 
would be permitted within the inshore midwater trawl restricted area. 
The Council recommended permitting RSA compensation fishing within the 
inshore midwater trawl restricted area to help ensure the RSA would be 
harvested and those funds would be available to support the projects 
awarded RSA. Vessels engaged in herring RSA compensation fishing 
typically operate as authorized by an exempted fishing permit (EFP) so 
they can request exemptions from certain regulations that would 
otherwise restrict herring harvest. While vessels would be permitted to 
use midwater trawl gear within the inshore midwater trawl restricted 
area while RSA compensation fishing, it does not mean that 
compensations trips would be without restrictions. Terms and conditions 
of the EFP must be consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), other 
applicable law, and Herring FMP. Additionally, we would consider 
whether additional terms and conditions would be required for EFPs to 
ensure RSA compensation trips do not exacerbate the overlap between

[[Page 43576]]

midwater trawl vessels and other user groups.
    Amendment 8 would allow the inshore midwater trawl restricted area 
or new closures to address localized depletion and/or user group 
conflict to be modified or implemented via framework adjustment. The 
list of framework provisions at Sec.  648.206 already includes closed 
areas; this amendment would add the inshore midwater trawl restricted 
area to that list.
    The Council's recommendation to prohibit midwater trawling in 
inshore areas is an allocation decision intended to balance the needs 
of user groups and provide conservation benefits. Consistent with 
objectives in the Herring FMP, the proposed measure is intended to 
facilitate an efficient, fair, and equitable accommodation of social, 
economic, and ecological factors associated with achieving OY, in part 
by providing, to the extent practicable, controlled opportunities for 
participants in other New England and Mid-Atlantic fisheries. Because 
midwater trawl vessels historically harvested a larger percentage of 
herring than other gear types and are able to fish offshore, the 
Council recommended prohibiting them from inshore waters to help ensure 
herring was available inshore for other user groups and predators of 
herring. The proposed inshore midwater trawl restricted area is 
designed to be reasonably large enough to address the overlap between 
midwater trawl vessels and other user groups and, ultimately, user 
group conflict in inshore waters. This proposed measure is likely to 
negatively impact the midwater trawl fleet, with potentially increased 
trip costs and lower annual catches, but the Council believes that, on 
balance, the benefits to other user groups, such as potentially reduced 
trips costs, higher annual catches, and improved safety, outweigh the 
costs to midwater trawl vessels. The proposed measure may also have 
biological benefits if moving midwater trawl vessels offshore minimizes 
catch of river herring and shad, reduces fishing pressure on the 
inshore component of the herring stock, and helps ensure herring are 
available to predators. Herring is currently assessed as one stock, but 
it likely has stock components. Reducing fishing pressure inshore would 
benefit an inshore stock component. Analyses in Amendment 8 estimate 
that in recent years approximately 30 percent of the midwater trawl 
fleet's annualized revenue came from within the proposed inshore 
midwater trawl restricted area. Negative economic impacts on the 
midwater trawl fleet may be mitigated if the fleet is able to offset 
lost revenue from inshore areas with increased revenue from offshore 
areas. Herring catch limits are currently low, so the fishery has the 
capacity to harvest the OY. Recent midwater trawl landings (2007-2015) 
offshore of the proposed midwater trawl restricted area (36,903 mt) are 
much higher than the Council-recommended OY for 2020 and 2021 (11,621 
mt). In the longer-term, the fishery will likely adapt to be able 
harvest an increased OY, provided vessels are able to locate herring.

Public Comment Instructions

    The Magnuson-Stevens Act allows us to approve, partially approve, 
or disapprove measures recommended by the Council in an amendment based 
on whether the measures are consistent with the fishery management 
plan, plan amendment, the Magnuson-Stevens Act and its National 
Standards, and other applicable law. The Council develops policy for 
its fisheries and we defer to the Council on policy decisions unless 
those policies are inconsistent with the Magnuson-Steven Act or other 
applicable law. As such, we are seeking comment on whether measures in 
Amendment 8 are consistent with the Herring FMP, the Magnuson-Stevens 
Act and its National Standards, and other applicable law. Public 
comments on Amendment 8 and its incorporated documents may be submitted 
through the end of the comment period stated in this notice of 
availability. A proposed rule to implement the amendment, including 
draft regulatory text, will be published in the Federal Register for 
public comment. Public comments on the proposed rule received by the 
end of the comment period provided in this notice of availability will 
be considered in the approval/disapproval decision on the amendment. 
All comments received by October 21, 2019, whether specifically 
directed to Amendment 8 or the proposed rule for this amendment, will 
be considered in the approval/disapproval decision on the Amendment 8. 
Comments received after that date will not be considered in the 
decision to approve or disapprove the amendment. To be considered, 
comments must be received by close of business on the last day of the 
comment period.

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

    Dated: August 16, 2019.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2019-18032 Filed 8-20-19; 8:45 am]
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