[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Rules and Regulations]
[Pages 1810-1825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29127]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 221228-0362]
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: Final rule.

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SUMMARY: This rule implements Amendment 8 to the Atlantic Herring 
Fishery Management Plan. This amendment specifies a long-term 
acceptable biological catch control rule for herring and addresses 
localized

[[Page 1811]]

depletion and user group conflict. It also establishes an acceptable 
biological catch control rule that accounts for herring's role in the 
ecosystem and prohibits midwater trawling in inshore federal waters 
from the U.S./Canada border to the Rhode Island/Connecticut border. 
Amendment 8 supports sustainable management of the herring resource and 
seeks to ensure that herring is available to minimize possible 
detrimental biological impacts on predators of herring and associated 
socioeconomic impacts on other user groups.

DATES: Effective February 10, 2021.

ADDRESSES: 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) 282-9272 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. Consistent with the Magnuson-Stevens Fishery Conservation 
and Management Act definition of OY, 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. The Magnuson-Stevens Act further provides 
that OY is the maximum sustainable yield (MSY) from the fishery as 
reduced by any relevant economic, social, or ecological factor. In the 
Herring FMP, this includes recognition of the importance of herring as 
forage for 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, including its 
role as forage; (2) stabilize the fishery at a level designed to 
achieve OY; and (3) address localized depletion in inshore waters.
    An acceptable biological catch (ABC) control rule is a formulaic 
approach for setting a harvest limit that reflects the FMP's harvest 
policy. For herring and other stocks with a defined overfishing limit 
(OFL), the ABC is reduced from the OFL to account for an estimate of 
scientific uncertainty, such as uncertainty around stock size 
estimates, variability around estimates of recruitment, and 
consideration of ecosystem issues, so that the OFL will not be 
exceeded. The ABC control rule is developed by the Council to reflect 
its risk tolerance for not exceeding the OFL and provides guidance to 
the Council's Scientific and Statistical Committee for recommending 
annual ABCs based on the best available scientific information about 
stock status. The specific parameters of an ABC control rule are: (1) 
Upper biomass parameter; (2) maximum allowable fishing mortality rate 
(F); and (3) lower biomass parameter. The values assigned to each of 
these parameters dictate the overall ``shape'' or function of the ABC 
control rule and determine whether F increases or decreases in response 
to the current estimate of stock biomass.
    On August 21, 2015 (80 FR 50825), the Council published a 
supplemental notice of intent (NOI) announcing it was expanding the 
scope of Amendment 8 beyond an ABC control rule to consider localized 
depletion in inshore waters. Public comment during the supplemental 
scoping made it clear that localized depletion concerns voiced by many 
stakeholders included 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. Therefore, the Council's consideration of 
localized depletion in Amendment 8 included user group conflict, both 
an evaluation of impacts of the user group conflict and consideration 
of competing interests for how herring should be used.
    Amendment 8 was adopted by the Council on September 25, 2018. We 
published a notice of availability (NOA) for the amendment in the 
Federal Register on August 21, 2019 (84 FR 43573), with a comment 
period ending October 21, 2019. We published a proposed rule for the 
amendment in the Federal Register on October 9, 2019 (84 FR 54094), 
with a comment period ending November 25, 2019. After considering 
public comment, we approved Amendment 8, on behalf of the Secretary of 
Commerce, on November 19, 2019, and notified the Council of the 
amendment's approval in a letter dated that same day. This final rule 
implements Amendment 8 as approved. Because details of the Council's 
development of the measures in Amendment 8 were described in the NOA 
and proposed rule, they are not repeated here.

Approved Measures

    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. After reviewing public comment, we 
approved all the proposed measures in Amendment 8, as recommended by 
the Council. While the majority of public comment supported the 
implementation of Amendment 8, we also received public comment urging 
us to disapprove the amendment. Ultimately, we approved the proposed 
measures in Amendment 8 because we determined the measures were 
consistent with the Magnuson-Stevens Act and other applicable law. 
Comments that opposed the implementation of Amendment 8 did not 
sufficiently demonstrate that the ABC control rule or inshore midwater 
trawl restricted area were inconsistent with the Magnuson-Stevens Act 
or other applicable law.

ABC Control Rule

    This rule establishes a long-term ABC control rule for herring. 
Under the control rule, when biomass (B) is at or above 50 percent of 
BMSY or its proxy, ABC is the catch associated with an 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 sets ABC for 
a 3-year period, but allows ABC to vary year-to-year in response to 
projected changes in biomass. This rule specifies that the control rule 
can 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.

[[Page 1812]]

    The control rule explicitly accounts 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 also generates 
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. This control rule is intended 
to result in low variation in yield, low probability of a fishery 
shutdown, and low probability of overfishing. As a result, 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. Relative to other control 
rules considered by the Council in Amendment 8, this 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, the 
2018 stock assessment concluded that herring biomass was low, and the 
probability of overfishing and the stock becoming overfished was 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 and, in turn, have positive impacts on the 
herring fishery, predators, and predator fisheries.
    In August 2020, the report for the 2020 herring stock assessment 
determined the stock is overfished, but not subject to overfishing. 
Spawning stock biomass (SSB) is estimated to have declined since 2014, 
and the 2019 SSB was estimated at 29 percent (77,883 metric tons (mt)) 
of the SSB necessary to support MSY (269,000 mt) resulting in a 
determination of overfished. F for herring harvested by mobile gear 
(i.e., midwater trawl, purse seine, bottom trawl) has declined since 
2010, was estimated to be 0.25 in 2019, and is well below the 
overfishing threshold (0.54) so the stock is not experiencing 
overfishing. Recruitment continues to be at historic lows, and in 2019 
it was estimated at about 20 percent of median recruitment. On October 
13, 2020, we notified the Council that the herring stock is overfished 
and requested it develop rebuilding measures.

Inshore Midwater Trawl Restricted Area

    This rule prohibits 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 are 
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 30-minute squares 114 and 99 off Cape Cod 
(Figure 1). Midwater trawl vessels are able to transit the inshore 
midwater trawl restricted gear area provided gear is stowed and not 
available for immediate use. This measure is in addition to the 
existing prohibition on midwater trawling for herring in Area 1A during 
June 1 through September 30.

[[Page 1813]]

[GRAPHIC] [TIFF OMITTED] TR11JA21.000

    The Council recommended the inshore midwater trawl restricted area 
to minimize local depletion and its associated 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 this measure on vessels using 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 gear and because midwater trawl vessels 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 inshore midwater trawl restricted area incorporates 
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 direct 
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 3 percent of the sub-annual catch limit for a herring 
management area. This rule permits RSA compensation fishing using 
midwater trawl gear within the inshore midwater trawl restricted area. 
The Council recommended allowing 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 are 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 Act, other applicable law, 
and the Herring FMP. Additionally, we would consider whether additional 
terms and conditions would be required for EFPs

[[Page 1814]]

to ensure RSA compensation trips do not exacerbate the overlap between 
midwater trawl vessels and other user groups, consistent with the 
Herring FMP.
    This rule specifies that the inshore midwater trawl restricted area 
or new closures to address localized depletion and/or user group 
conflict may be modified or implemented via framework adjustment. The 
list of framework provisions at Sec.  648.206 already includes closed 
areas; this amendment adds 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 inshore midwater trawl restricted 
area is intended to facilitate an efficient, fair, and equitable 
accommodation of relevant 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 
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 while still providing midwater trawl vessels access to areas 
with fishing opportunities. This measure is likely to negatively impact 
the midwater trawl fleet, with potentially increased trip costs and 
lower annual catches, but 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 
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 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 inshore midwater trawl restricted 
area (19,302 mt) are higher than the OY for 2020 and 2021 (11,621 mt). 
In the longer term, the fishery will likely adapt to be able to harvest 
an increased OY, provided vessels are able to locate herring.

Clarifications

    This rule establishes the following revision and clarifications to 
Sec.  648.202(a) under the authority of section 305(d) to the Magnuson-
Stevens Act, which provides that the Secretary of Commerce may 
promulgate regulations necessary to carry out an FMP or the Magnuson-
Stevens Act.
    First, this rule revises the title from ``Purse Seine/Fixed Gear 
Only Area'' to ``Midwater Trawl Restricted Area.'' Bottom trawl gear, 
in addition to purse seine and fixed gear, is permitted in the 
referenced area; only midwater trawl gear is prohibited in the area. 
This revision is a more accurate description of the referenced area and 
is necessary to clarify the intent of the regulation.
    Second, this rule clarifies that the regulation applies only to all 
federally permitted vessels fishing for herring. The regulation 
currently applies midwater trawl gear restrictions to vessels fishing 
for herring. This clarification is necessary to specify that 
restrictions on fishing for herring with midwater trawl gear only apply 
to federally permitted vessels and do not apply to vessels with only a 
state herring permit fishing exclusively in state waters.
    Third, the rule clarifies the conditions under which midwater trawl 
vessels may transit the ``Midwater Trawl Restricted Area'' described 
above. Current regulations specify that midwater trawl vessels with a 
limited access herring permit may transit Area 1A during June through 
September with midwater trawl gear on board, provided the gear is 
stowed and not available for immediate use. This rule clarifies that 
any federally permitted herring vessel may transit Area 1A during June 
through September, provided midwater trawl gear is stowed and not 
available for immediate use. The unnecessary addition of a limited 
access permit requirement to transit Area 1A was likely a byproduct of 
the impact analysis identifying the number of limited access vessels 
that would be affected by the prohibition of midwater trawling in Area 
1A implemented in Amendment 1 to the Herring FMP.
    This rule also revises Sec.  648.200(b)(3) under the authority of 
section 305(d) to the Magnuson-Stevens Act. This revision changes the 
reference from ``at'' Sec.  648.201(a) to ``in'' Sec.  648.201(a) to be 
consistent with other regulatory references within Sec.  648.200.

Revisions and Additional Clarifications to the Proposed Rule

    This rule implements necessary minor administrative changes under 
section 305(d) to the Magnuson-Stevens Act that were not described in 
the proposed rule. First, it corrects definitions in Sec.  648.2. The 
definition for slippage in the Atlantic herring fishery was 
inadvertently removed from the regulations, and this rule restores it. 
This rule also moves the definition for observer or monitor to the 
correct alphabetic order.
    Second, this rule corrects several weblinks in regulations 
describing monitoring coverage (Sec.  648.11). The Northeast Fisheries 
Science Center's Fishery Sampling Branch's website was recently revised 
and, as a result, several weblinks to monitoring resources specified in 
the final rule implementing the New England Industry-Funded Monitoring 
(IFM) Omnibus Amendment (85 FR 7414; February 7, 2020) are now 
outdated. This rule corrects those outdated weblinks.
    Third, this rule corrects minor typographical errors in Sec.  
648.11 that were implemented in the final rule for the IFM Amendment.

Comments and Responses

    We received 268 comment letters on the NOA and proposed rule: 160 
from the general public; 38 from members of the fishing industry; 29 
from members of the herring fishery; 19 from members of the 
recreational and charter party fisheries; 13 from environmental 
advocacy groups; and 9 from state or town governments. Of the 268 
letters, a letter from the Pew Charitable Trusts (Pew) included 8,942 
signatures, a letter from the Conservation Law Foundation (CLF) 
included 553 comments from the public, a letter from the National 
Audubon Society (NAS) included 3,970 signatures and 201 comments from 
the public, and a letter from Saving Seafood included 22 comments from 
members of the fishing industry.
    Development of this amendment was contentious because stakeholders 
are polarized on the inshore midwater trawling prohibition to minimize 
user

[[Page 1815]]

group conflict and, to a lesser extent, on the ABC control rule. Most 
of the commenters support the implementation of Amendment 8, including 
all state and town governments, all environmental advocacy groups, most 
recreational and charter party fisheries members, most of the general 
public, and some fishing industry members. Those commenters who do not 
support the implementation of Amendment 8 include most herring industry 
members, some fishing industry members, and some of the general public.
    Comment 1: Some members of the herring industry assert that 
Amendment 8 is inconsistent with the Magnuson-Stevens Act, its National 
Standards, and the Herring FMP. They propose that current management 
measures, such as slippage consequence measures, coverage requirements, 
the seasonal prohibition on midwater trawling for herring in Area 1A, 
and catch caps, are more than sufficient to manage catch in the herring 
fishery. They caution that the cumulative impact of prohibiting 
midwater trawling inshore, low catch under the new ABC control rule, 
and existing restrictions was not fully analyzed in the final EIS 
(FEIS). They believe these cumulative restrictions threaten the loss of 
a year-round fishery, jeopardize continued participation in the fishery 
by harvesters and fishing communities, and negatively impact the bait 
supply for the lobster fishery.
    Response: The Herring FMP is intended to provide, in part, 
controlled opportunities for participants in other New England and Mid-
Atlantic fisheries. The inshore midwater trawl restricted area was 
developed to address issues of localized depletion and its associated 
user group conflict as described in the amendment's user group conflict 
problem statement. It is designed to support inshore fishing 
opportunities for a wide variety of fishing industry participants. The 
ABC control rule is designed to provide a long-term sustainable herring 
fishery and, similar to the inshore midwater trawl restricted area, the 
ABC control rule supports herring as forage for predators and other 
user groups. While measures such as slippage consequence measures, 
coverage requirements, and catch caps help manage herring catch, they 
were not developed explicitly to support opportunities for other user 
groups.
    Herring are an important forage species in the Northeast U.S. shelf 
ecosystem and they are eaten by a wide variety of fish, marine mammals, 
and birds. Herring share the role of forage with other prey species 
(e.g., sandlance, mackerels, squids, and hakes); the relative 
importance of herring as forage varies by predator and depends on 
whether other forage is available. Herring are important forage for 
Atlantic bluefin tuna, spiny dogfish, Atlantic cod, silver hake, and 
Atlantic striped bass, as well as seabirds (e.g., Atlantic puffins and 
terns) and marine mammals (e.g., baleen whales, toothed whales, and 
pinnipeds).
    The amendment's FEIS analyzed the ecological and socioeconomic 
impacts of management measures on the herring fishery, the Atlantic 
mackerel fishery, and the lobster fishery, as well as predator 
fisheries and ecotourism. The FEIS also considered the impacts of these 
measures in concert with past, present, and reasonably foreseeable 
future actions. The FEIS concludes that short-term negative economic 
impacts on some fishery participants have the potential to become long-
term economic benefits for all user groups. Negative impacts may be 
minimized for midwater trawl vessels if they are able to harvest 
herring offshore, other economical sources of bait are available for 
the lobster fishery, or the ABC control rule helps minimize the risk of 
the herring stock becoming overfished and subject to overfishing. The 
Council's consideration included the ecological and socioeconomic 
impacts of measures in Amendment 8, and recommended these measures to 
help ensure herring was available for predators and all user groups.
    Section 6.1.1 of the FEIS describes how management measures are 
consistent with the Magnuson-Stevens Act and its National Standards. We 
determined these measures are consistent with the Magnuson-Stevens Act 
and its National Standards when we approved the amendment in November 
2019. Our consideration of how measures are consistent with specific 
National Standards is further detailed in our responses to comments 
below.

Inshore Midwater Trawl Restricted Area

    Comment 2: Commenters support implementation of the inshore 
midwater trawl restricted area because they believe it will:
     Protect Atlantic herring and river herring from localized 
inshore depletion by industrial-scale fishing;
     Reduce user group conflict and support coastal economies 
and commercial and recreational business that rely on predators;
     Balance the needs of all stakeholders in inshore waters 
where stakeholder overlap is the greatest, without setting a precedent 
for prohibiting other types of trawling;
     Recognize the importance of herring to inshore users, 
including striped bass, tuna, and cod fisheries, as well as ecotourism 
by helping maintain a large forage biomass for predators and those 
predator fisheries (e.g., striped bass, tuna, recreational and charter 
fisheries);
     Protect inshore waters from the impacts of midwater 
trawling and provide consistency with other countries that restrict 
midwater trawling;
     Decrease discarded catch of cod and haddock by midwater 
trawlers in inshore waters;
     Offer additional ecosystem protection to Stellwagen Bank;
     Protect discreet, localized aggregations of herring, as 
well as the ecosystem and coastal communities that rely on them; and
     Protect herring spawning areas, including spawning adults 
and eggs, especially off Cape Cod, to support recruitment.
    A joint letter from CLF, NAS, Natural Resources Defense Council 
(NRDC), Pew, and Wild Oceans supports implementation of the inshore 
midwater trawl restricted area. The commenters explain the measure 
would reduce fishing pressure inshore, where predators need herring, 
and mitigate negative socioeconomic impacts of high-volume herring 
removals on other user groups. The commenters believe the inshore 
midwater trawl restricted area will have biological, ecological, and 
economic benefits and that it is consistent with the Magnuson-Stevens 
Act and National Standards.
    The New England Purse Seiner's Alliance (NEPSA) supports the 
inshore midwater trawl restricted area because it believes the existing 
prohibition on midwater trawling in Area 1A during the summer helps 
protect herring and allows for a robust tuna fishery. NEPSA also 
asserts the prohibition clearly addresses the goals, objectives, and 
problem statement for the amendment and is consistent with the 
Magnuson-Stevens Act.
    The Commonwealth of Massachusetts supports the inshore midwater 
trawl restricted area because it minimizes possible detrimental 
biological impacts on predators and associated socioeconomic impacts on 
other user groups that rely on herring as forage. It also supports 
using the overlap of midwater trawl activity and other user groups as 
the best available science to support prohibiting inshore midwater 
trawling.
    The Nature Conservancy (TNC) commented that localized depletion, or 
taking fish faster than they can be replaced in a given area, is a 
significant

[[Page 1816]]

biological concern for the herring resource, the predatory fish and 
birds that rely on herring as food, and other user groups that depend 
on the local availability of herring to support their business. TNC 
recognizes there is limited information linking localized depletion to 
the midwater trawl fishery, but it supports the Council's precautionary 
approach to address localized depletion and notes the inshore midwater 
trawl restricted area encompasses times and areas with a high degree of 
overlap between the midwater trawl fishery and other user groups.
    While Lund's Fisheries generally opposes the inshore midwater trawl 
restricted area, it supports allowing midwater trawl RSA compensation 
fishing within the inshore midwater trawl restricted area to support 
fishery access to herring and mackerel.
    Response: We acknowledge the commenters support for the inshore 
midwater trawl restricted area and concur that the measure is intended 
to ensure herring is available to minimize detrimental biological 
impacts on predators of herring and associated socioeconomic impacts on 
other user groups.
    Comment 3: Several commenters support the inshore midwater trawl 
restricted area, but would prefer that the midwater trawl restricted 
area extend further offshore, either 25 (46 km) or 50 (93 km) nautical 
miles offshore, especially on Stellwagen Bank.
    Response: We can only approve, disapprove, or partially approve 
Council-recommended measures; we cannot modify the inshore midwater 
trawl restricted area to extend further offshore. The Council 
considered alternatives that would have extended the midwater trawl 
restricted area further offshore but recommended a smaller inshore 
midwater trawl restricted area, so that the costs associated with the 
measure are commensurate with the benefits.
    Comment 4: Some members of the herring industry assert the inshore 
midwater trawl restricted area is not consistent with the Magnuson-
Stevens Act and applicable law for the following reasons:
     It will prevent the herring and mackerel fisheries from 
achieving OY on a short-term and continuing basis and will not result 
in a net benefit to the Nation (National Standard 1);
     The best available science does not indicate localized 
depletion, nor does it find a difference in fishery removals by 
midwater trawl vessels compared to purse seine vessels, and this 
measure makes no attempt to align the restricted area with associated 
analyses and is an illegitimate political compromise (National Standard 
2);
     The allocation of fishing grounds is not fair or equitable 
and does not promote conservation (National Standard 4);
     It will impose economic inefficiencies on midwater trawl 
vessels, including longer, more expensive fishing trips, and no measure 
may have economic allocation as its sole purpose (National Standard 5);
     The benefits of restricting midwater trawling inshore do 
not outweigh the costs (National Standard 7);
     Restricting midwater trawling in inshore waters had no 
conservation benefit and does not minimize economic impacts (National 
Standard 8);
     Moving midwater trawl vessels offshore makes fishing trips 
potentially less safe (National Standard 10);
     Prohibiting midwater trawling inshore is arbitrary and 
capricious; and
     The amendment does not include a fishery impact statement 
or cumulative effects assessment.
    Response: We disagree with these comments. The Council's 
development of the amendment considered the best available science to 
determine how best to achieve OY in this fishery, given this fishery's 
multiple commercial, recreational, and ecological interests. The 
inshore midwater trawl restricted area fairly and equitably allocates 
fishing opportunities to a wide variety of fishing industry 
participants in a manner that reasonably promotes conservation. The 
Council's consideration included a robust analysis and consideration of 
economic impacts on fishing communities, including recreational 
fishing, an efficient use of resources, and attempts to minimize costs 
and unnecessary duplication. Further, the Council weighed the costs and 
benefits of this measure on the various user groups and considered the 
effect of the measure on the safety of the fisheries participants.
    The herring fishery is capable of achieving OY, both in the short 
term and on a continuing basis, with inshore harvest from purse seine 
and bottom trawl vessels and offshore harvest from midwater trawl 
vessels, consistent with National Standard 1. In the short term, 
herring catch limits are expected to remain very low (less than 10,000 
mt), as the stock is experiencing historically low recruitment. If 
herring are available, the fishery has the capacity and opportunity to 
harvest the entire OY. In the longer term, the fishery will likely 
adapt to be able to harvest an increased OY, provided vessels are able 
to locate herring. While recent herring catches have largely come from 
within the inshore midwater trawl restricted area, midwater trawl 
vessels have historically caught the majority of their harvest 
offshore. Any inability to harvest the OY is more likely related to 
herring's reduced abundance, rather than the lack of inshore midwater 
trawling curtailing the fishery's capacity to harvest herring. 
Regarding the mackerel fishery, we do not expect the inshore midwater 
trawl restricted area to prevent the mackerel fishery from achieving OY 
because only 14 percent (925 mt) of recent mackerel midwater trawl 
landings (2007-2015) were harvested from within the restricted area.
    The Magnuson-Stevens Act defines OY as the amount of fish that 
provides the greatest overall benefit to the Nation, particularly with 
respect to food production and recreational opportunities. It also 
prescribes OY on the basis of the fishery's MSY, as reduced by relevant 
economic, social, or ecological factors. The Herring FMP's OY 
definition further requires, ``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 Atlantic herring as one of many forage species of fish, marine 
mammals, and birds in the Northeast Region.'' Relevant to the economic 
and social factors that apply to herring management are the impacts on 
the fisheries for predator fisheries (e.g., groundfish, bluefin tuna, 
striped bass) and on ecotourism (e.g., whale watching). Consistent with 
National Standard 1, the inshore midwater trawl restricted area helps 
limit concentrated removals of herring in inshore areas to acknowledge 
the importance of herring as forage in the ecosystem, support the 
businesses that depend on predators of herring, and provide the 
greatest overall benefit to the Nation.
    The inshore midwater trawl restricted area was developed in 
response to the amendment's problem statement and is designed to help 
minimize user group conflict between midwater trawl vessels and other 
user groups. The Council's consideration of localized depletion 
ultimately included user group conflict to address stakeholders' 
concerns with localized depletion issues. The Council evaluated the 
impact of user group conflict and competing interests for how herring 
should be used. Consistent with National Standards 2 and 4, the inshore 
midwater trawl restricted area allocates fishing opportunities to a 
wide variety

[[Page 1817]]

of user groups in a manner that promotes the conservation of herring 
for predators and is based on the best available science. The FEIS 
summarizes what is known about the role of herring as forage in the 
ecosystem, includes maps describing the footprint of the herring 
fishery as well as key predator fisheries, and analyzes the overlap 
between these fisheries to identify seasons and areas with the 
potential for user group conflict. The FEIS suggests the greatest 
amount of overlap between user groups occurs inshore throughout the 
year. Because midwater trawl vessels are more capable of fishing 
offshore than other user groups, the Council recommended prohibiting 
them from inshore waters to help ensure herring are available inshore 
for other users groups and predators of herring. The inshore midwater 
trawl restricted area has biological benefits if moving the midwater 
trawl fleet 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. For these reasons, the 
FEIS describes the inshore midwater trawl restricted area as a fair 
compromise that balances the competing needs of user groups.
    This measure is likely to negatively impact the midwater trawl 
fleet, with potentially increased trip costs and, if less herring is 
available offshore, lower annual catches. The FEIS considers that some 
midwater trawl vessels may purchase new gear (e.g., purse sein or 
bottom trawl) in order to access inshore areas, while others may opt to 
fish offshore, with potentially higher operational costs, and/or pursue 
other fisheries to make up for any lost herring revenue. The FEIS also 
estimates that this measure has the potential to reduce costs, such as 
searching and fishing time, for other fisheries and ecotourism 
companies that rely on herring predators, if it improves the inshore 
availability of herring. Therefore, consistent with National Standards 
5, 7, 8, and 10, the benefits to other user groups, such as potentially 
reduced trips costs, higher annual catches, and improved safety, 
outweigh the costs to the midwater trawl vessels. While benefits to 
other user groups are difficult to specifically quantify until new 
measures are in place and data on their effects become available, we 
expect economic benefits would extend to the fishing communities that 
support these user groups as they will likely benefit from increased 
access to herring. Further, we expect that negative economic impacts on 
midwater trawl vessels can be minimized if vessels are able to increase 
their harvest of herring offshore. The Council considered other 
alternatives to minimize user group conflict, including prohibiting 
midwater trawling inshore of 25 nautical miles (46 km) and 50 nautical 
miles (93 km), but recommended a shallower midwater trawl restricted 
area instead as a way to more fairly and equitably balance the costs 
and benefits of the measure. To help mitigate the economic impact of 
the inshore midwater trawl restricted area and provide access for the 
mackerel fishery, the Council also recommended that RSA compensation 
fishing trips be exempt from the inshore prohibition on midwater 
trawling.
    The inshore midwater trawl restricted area is not arbitrary and 
capricious. It is consistent with the problem statement developed by 
the Council to describe user group conflict and the objectives of the 
Herring FMP, including providing for full utilization of the OY and, to 
the extent practicable, controlled opportunities for participants in 
other New England and Mid-Atlantic fisheries. Because information to 
quantify the impact of midwater trawling on other user groups is 
limited, the FEIS analyzed the degree of overlap between the midwater 
trawl fleet and other user groups, consistent with National Standard 2. 
While overlap with the midwater trawl fishery 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. Additionally, the amendment's FEIS 
serves as the fishery impact statement, as it analyzes the 
conservation, economic, and social impacts of the management measures 
in Sections 4.1-4.8 in the FEIS, and the cumulative effects assessment 
is included in Section 4.9 of the FEIS.
    Comment 5: Some commenters contend that user group conflict was 
excluded from Amendment 8 scoping and, therefore, it is not acceptable 
for user group conflict to be the basis for implementing an exclusion 
zone.
    Response: 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, and 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 indicated that localized depletion 
should be defined to also include the user group conflicts that result 
from localized depletion and that the 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. Defining the nature of 
localized depletion and identifying its impacts so that the Council 
could best address localized depletion was precisely the type of 
information sought by the supplemental NOI expanding the scope of 
Amendment 8.
    Comment 6: Commenters oppose the inshore midwater trawl restricted 
area because of its inherent effect on the allocation of herring 
between user groups and believe:
     Fisheries regulations should not be popularity contests 
based on feelings and perceived user conflict instead of evidence and 
facts;
     Ocean access belongs to all and gear exclusions should not 
be based on prioritizing some user groups over others;
     Restricting inshore midwater trawling sets a precedent for 
excluding trawling in other areas, and may lead to exclusion zones in 
the squid fishery;
     Prohibiting inshore midwater trawling will increase 
bycatch and impacts to habitat, especially on herring spawning areas, 
should midwater trawl vessels switch to bottom trawl gear; and
     Removals by purse seine gear are similar in intensity to 
removals by midwater trawl gear, as both gear types target and harvest 
large schools of herring.
    Response: Many of the Council's actions entail catch allocations 
between user groups. The National Standard Guidelines recognize that 
allocations of fishing privileges include assignment of ocean areas to 
different gear users that must comply with National Standard 4. The 
Council's prohibition on inshore midwater trawling complies with 
National Standard 4's requirement to be fair and equitable and 
reasonably calculated to promote conservation. The decision was based 
on fishing effort and socioeconomic data. Rather than being the result 
of its popularity with stakeholders as some claim, it balances the 
needs of user groups and is expected to also provide conservation 
benefits for

[[Page 1818]]

inshore areas due to herring's important role in the ecosystem as 
forage. The Council focused on midwater trawl vessels because of their 
potential for high-volume catches, and they are relatively more mobile 
and capable of fishing in offshore areas than vessels using other gear 
types. While purse seine vessels are capable of high-volume catches, 
midwater trawl vessels have historically harvested more than 65 percent 
of the annual catch limit. The FEIS concludes that the inshore midwater 
trawl restricted area is expected to only have a neutral to low 
negative impact on habitat. Any effort shift from bottom trawl to 
midwater trawl gear is not expected to significantly impact habitat 
because of the existing seasonal and area restrictions on using small-
mesh bottom trawl gear within the inshore restricted area and the 
previous determination that the herring fishery has only minimal and 
temporary impacts on essential fish habitat. We understand the 
commenters dislike the measure, but their concerns do not demonstrate 
the measure is inconsistent with applicable law.
    Comment 7: Some commenters are concerned about the economic impact 
of the inshore midwater trawl restricted area on the herring, mackerel, 
and lobster fisheries, specifically because:
     Herring migrate through inshore waters and the midwater 
trawl fleet needs flexibility to be able to harvest herring where it is 
available;
     Losing midwater trawl access to inshore areas will have 
negative economic impacts on fishing vessels, the businesses and 
communities that support them, and availability and price of bait for 
the lobster fishery;
     The restricted area includes mackerel fishing grounds and 
vessels rely on higher value mackerel to supplement herring revenue;
     Amendment estimates a 30-percent reduction in revenue, but 
because the majority of herring and mackerel are caught in inshore 
waters, it would be more like a 70-percent reduction in revenue; and
     Nearly all recent midwater trawl catches have come from 
the inshore restricted area and vessels will not be able to recoup lost 
revenue offshore because environmental conditions in Area 3 have not 
been suitable for catching herring.
    Response: The amendment's FEIS includes an economic analysis of the 
potential impacts of prohibiting inshore midwater trawling. Based on 
data showing that midwater trawl vessels historically harvested the 
majority of their catch offshore of the inshore midwater trawl 
restricted area, the FEIS estimates 30 percent of midwater trawl 
revenue came from within the inshore restricted area. While economic 
impacts on the herring, mackerel, and lobster fisheries are expected to 
be low negative to negative, the impacts on predator fisheries and 
ecotourism are described as uncertain to low positive. Negative 
economic impacts may be minimized if midwater trawlers can harvest 
herring and mackerel offshore and the lobster fishery can use 
alternatives to herring for bait, such as menhaden, redfish, and 
skates. In the short term, the availability of herring to the fishery 
may be affected by the historically low recruitment and overfished 
stock status. But longer term, as the stock rebuilds, the Council 
expects midwater trawl vessels may once again be able to harvest the 
majority of their catch offshore.
    Comment 8: Some commenters caution that the inshore midwater trawl 
restricted area, covering a large area and effective year-round, is 
inconsistent with the problem identified in the amendment and ignores 
the user group overlap analysis. They also express concern that the 
amendment's FEIS does not acknowledge that the measure is a herring 
allocation among fleets, incorrectly identifies the inshore midwater 
trawl restricted area as a compromise between competing interests, and 
does not reasonably consider the impacts of an effort shift if midwater 
trawl vessels begin using bottom trawl gear.
    Response: We disagree. As previously described, the inshore 
midwater trawl restricted area allocates fishing opportunities to a 
wide variety of user groups in a manner that promotes the conservation 
of herring for predators and is based on the best available science on 
the overlap between user groups. The FEIS acknowledges the inshore 
midwater trawl restricted area is an allocation of fishing 
opportunities between different user groups. Because the Council 
designed the measures to help limit concentrated removals of herring in 
inshore areas to allow for herring as forage in the ecosystem and 
support businesses that depend on predators of herring, the FEIS 
correctly describes the measure as a fair compromise that balances the 
competing needs of user groups. The FEIS recognizes the potential for 
an effort shift from midwater to bottom trawl gear, and acknowledges 
that biological benefits and socioeconomic benefits to other user 
groups may be minimized if midwater trawl vessels continue to fish 
inshore with bottom trawl gear. Whether midwater trawl vessels convert 
to bottom trawl gear will likely depend on several factors, such as the 
cost of converting, market demands, and the availability of herring 
offshore. In Area 1A, herring is only available for harvest June 
through December and is more frequently caught using purse seine gear 
than bottom trawl gear. Additionally, the states of Maine, New 
Hampshire, and Massachusetts implement weekly landings limits that may 
deter a midwater trawl vessel from converting to bottom trawl gear to 
fish in Area 1A. Given time and area restrictions on using small-mesh 
bottom trawl gear in Management Areas 1B and 3, the FEIS states that 
herring vessels are unlikely to substantially expand the use of bottom 
trawl gear in those areas, with the exception that they may try to 
access the western portion of the Raised Footrope Exemption Area from 
September to December.
    Comment 9: Some commenters assert the amendment does not consider 
the impact of restricting fishing inshore in combination with the loss 
of fishing grounds due to future offshore wind development.
    Response: During the development of Amendment 8, there were no 
offshore wind projects in place or construction and operation plans 
(COPs) made public for any of the herring management areas. While COPs 
for South Fork Wind Farm were made public in June 2018, the COPs for 
Vineyard Wind and Bay State Wind were made public in October 2018 and 
March 2019, respectively, after the Council adopted final measures in 
Amendment 8 at its September 2018 meeting. The FEIS qualitatively 
considers the impacts of offshore wind projects, along with 
environmental and other non-fishing related activities, as part of the 
cumulative effects assessment (Section 4.9). It concludes that the 
direct and indirect effects of the management measures in Amendment 8 
considered in combination with all other actions (i.e., past, present, 
and reasonably foreseeable future actions), should yield non-
significant low positive impacts on human communities. Without wind 
projects being in place or COPs made public, quantitatively evaluating 
the impacts of offshore wind projects in combination with measures 
considered in Amendment 8 would have been too speculative.

ABC Control Rule

    Comment 10: Commenters support implementation of the ABC control 
rule because they believe it will:
     Balance the goals and objectives of the Herring FMP, 
including long-term, biologically-sustainable harvest,

[[Page 1819]]

accounting for forage, and sustainable source of fishing revenue;
     Better account for forage at times of high biomass while 
continuing to safeguard the herring fishery during times of lower 
biomass;
     Provide forage for fish, marine mammals, and seabirds;
     Better align with ecosystem-based management;
     Support ecosystem health and the economies of coastal 
communities;
     Help reduce inconsistent and unpredictable fishing to 
ensure a steady supply of bait for the lobster fishery; and
     Help ensure the long-term viability of herring, its 
fishery, and the predators that rely on herring.
    The joint letter from CLF, NAS, NRDC, Pew, and Wild Oceans 
explained that, initially, they advocated for a more conservative ABC 
control rule to maintain a forage base for economically valuable 
predator fisheries and the marine ecosystem. However, recognizing the 
economic implications of the 2018 herring stock assessment, indicating 
that herring biomass and recruitment were low, they now support the 
Council-recommended ABC control rule to provide valuable forage for 
fish, marine mammals, and seabirds, while allowing fishing 
opportunities and long-term benefits for the herring and lobster 
fisheries. They believe the control rule is consistent with the Herring 
FMP, Magnuson-Stevens Act, National Standard 1 guidelines for managing 
forage fish, and the best available science.
    The TNC supports the ABC control rule given that the 2018 herring 
stock assessment concluded herring biomass is declining, stock 
recruitment is at a historic low, and the probability of the stock 
becoming overfished is high. It acknowledges that the ABC control rule 
may result in negative short-term economic impacts for participants in 
the herring and lobster fisheries, but believes it will provide long-
term benefits for the marine ecosystem and the fisheries that depend on 
herring.
    Response: We concur with the commenters' support for the ABC 
control rule.
    Comment 11: Members of the herring industry stress that the need 
for a control rule is flawed because the 2018 stock assessment assumes 
no link between SSB and recruitment. They explain that recruitment in 
the herring fishery is environmentally driven and variable, that the 
recent experience of below average recruitment is unusual, and that 
small herring seen both inshore and offshore are part of a recruitment 
event independent of a new control rule.
    Response: The Council recommended a new ABC control rule because it 
determined that the previous ABC control rule did not sufficiently 
provide for the role of herring in the ecosystem, especially when 
biomass is reduced and there is uncertainty in the assessment. While 
the assessment accounts for natural mortality, it is more risk averse 
to use an ABC control rule that reserves a portion of the catch for 
predators in the event estimates of biomass are uncertain. The 
inability of the 2018 stock assessment to quantitatively estimate the 
relationship between SSB and recruitment does not mean that the 
relationship does not exist. The FEIS acknowledges that environmental 
factors likely have a larger influence on herring recruitment and 
abundance trends than fishing, but concluded that reducing fishing 
pressure, when there is substantial uncertainty, is expected to prevent 
overfishing and optimize yield for the fishery in the long term.
    Comment 12: Some members of the herring industry expressed concern 
with the management strategy evaluation (MSE) used to develop the ABC 
control rule, including the following:
     The MSE was rushed, stakeholder engagement and modeling 
were limited in scope and not used to their full potential, especially 
modeling of the spatial distribution of herring and predator/prey 
interactions;
     The analysis did not consider abundance, availability, or 
nutritional value of alternative prey species, nor did it consider the 
impact of herring abundance on the abundance of alternative prey 
species;
     The Council had no understanding of how this control rule 
would result in real-world specifications; and
     The analysis did not incorporate rebuilding measures that 
would be required if the stock is overfished, so the benefits of the 
more conservative control rules are illusory.
    Response: The Council developed alternatives for a herring ABC 
control rule using an MSE. MSE is a decision-making tool that uses 
computer modeling to compare the performance of alternatives (i.e., 
management strategies) under various scenarios to achieve multiple, 
competing objectives. Because we do not have a complete understanding 
of the ocean ecosystem and all the sources of uncertainty, MSEs are 
useful to evaluate how alternatives perform under different 
environmental conditions. The Council held two public workshops to 
generate stakeholder input to help identify objectives for the MSE 
analysis. Input generated by the workshops was considered by the 
Council and, for the most part, adopted and included in Amendment 8. 
The MSE used three models, a herring model, a predator model, and an 
economic model, to compare ABC control rule performance. The models 
simulated how well the ABC control rules achieved herring management 
objectives, such as biomass, yield, revenue, and predator 
considerations, under simulated environmental conditions related to 
herring growth, stock assessment bias, and productivity of herring. 
Results of the MSE informed the range of ABC control rule alternatives 
and impact analyses of those alternatives in Amendment 8.
    Development of the control rule with an MSE was, despite 
unavoidable data gaps and modeling limitations, based on the best 
scientific information available. To ensure the MSE was sufficient for 
identifying and analyzing a range of ABC control rules, the Council 
arranged for an external peer review of the MSE. The reviewers 
recognized that a tremendous amount of work was completed in a rigorous 
manner under the time and resource constraints of the MSE. While the 
models were constrained by the availability of data, the reviewers 
agreed the three models used in the MSE were appropriate for evaluating 
ABC control rules in the context of herring's role as forage in the 
ecosystem. The model used for herring included scenarios where herring 
productivity was high, as well as low, to explicitly enable the Council 
to evaluate the impact of ABC control rules on real-world 
specifications given fluctuations in herring biomass. The commenters 
are correct that the model used for herring did not include rebuilding 
measures. However, rebuilding measures are not required to be effective 
until 2 years after a stock has been declared overfished. There are 
potential conservation benefits associated with conservative control 
rules, especially like the Council-recommended control rule that sets 
herring catch at zero when biomass is low, until rebuilding measures 
become effective. Overall, the reviewers concluded that the data, 
methods, and results of the MSE were sufficient for identifying and 
analyzing a range of ABC control rule alternatives and that the MSE 
represents the best available science for evaluating the performance of 
herring control rules and their potential impact on key predators.
    Comment 13: Commenters oppose implementation of the ABC control 
rule because they believe:
     It is too precautionary, as evident by its 2-percent 
chance of overfishing in

[[Page 1820]]

2019 when only a 50-percent or less chance of overfishing is required 
under the Magnuson-Stevens Act;
     It is not appropriate for herring because it double counts 
predator needs and adds an additional forage buffer of at least 15 
percent;
     It is not capable of explicitly accounting for herring's 
role as forage because many predators are generalists and consume a 
variety of prey species;
     Setting catch to zero when biomass is low does not account 
for herring as forage because herring's role as forage does not 
diminish as biomass diminishes;
     It would not have prevented the current situation of low 
herring biomass and recruitment, but it does ensure the economic impact 
of low herring biomass is more negative than necessary; and
     It lacks ``exceptional circumstances'' protocol to address 
scenarios with low biomass, especially when it would prohibit fishing.
    Response: We disagree with these comments. The control rule was 
developed by the Council to reflect its harvest policy for herring and 
provide for a long-term sustainable herring fishery. It moderately 
reduces fishing mortality (80 percent of the rate that supports MSY 
reduced from 90 percent) when biomass is high, eliminates catch in 
response to low biomass (10 percent or less of the BMSY), 
and takes into account herring's role as forage for predators. As 
described previously, an external peer review found the results of the 
MSE were sufficient for identifying and analyzing a range of ABC 
control rule alternatives and that the MSE represents the best 
available science for evaluating the performance of herring control 
rules and their potential impact on key predators. Similar to the 
inshore midwater trawl restricted area, the ABC control rule also 
considers impacts across user groups. The control rule modestly reduces 
the amount of catch available to the herring and lobster fisheries to 
support herring as forage for other user groups. Instead of an 
``exceptional circumstances'' protocol to allow for fishing when 
biomass is very low, the Council recommended that catch be set at zero 
to help rebuild biomass and ensure herring is available to predators. 
The control rule is intended to produce a low variation in yield, low 
probability of a herring fishery shutdown, and low probability of 
overfishing. As a result, the Council anticipates that short-term 
negative economic impacts on participants in the herring, mackerel, or 
lobster fisheries resulting from a reduced herring harvest may become a 
long-term economic benefit for them and other user groups.
    Comment 14: Some members of the herring industry argue for the 
continued use of the status quo control rule because it balances 
scientific uncertainty with stability for the fishery. They also 
caution the new control rule is not consistent with the Magnuson-
Stevens Act because the FEIS did not indicate any benefit to predators, 
so the economic costs of the control rule outweigh the benefits.
    Response: Currently, there is no ABC control rule for the Herring 
FMP. Interim control rules have been applied in the past, but the 
harvest policy has been temporary and the Council has considered 
different ABC options with each specifications action. The commenters' 
conclusion that the FEIS does not indicate any benefit to predators is 
incorrect. The FEIS holds that the Council-recommended ABC control rule 
is expected to have positive biological impacts on the herring stock 
and low positive biological impacts on herring predators. While the 
commenters are correct that the FEIS estimates minimal differences in 
short-term impacts on predator species across ABC control rule 
alternatives, the ability of the MSE's modeling to detect differences 
in predator metrics (i.e., common tern productivity, bluefin tuna 
weight, spiny dogfish biomass) and marine mammals was limited by the 
amount and scale of available predator data. The FEIS notes that, in 
general, more herring left unfished in the ecosystem could have 
positive impacts on herring predators, despite that relatively small 
differences in overall ABC may not have measurable differences in 
overall impacts on herring predators because many predators are 
opportunistic. Additionally, the FEIS explains that using ABC control 
rules that reduce fishing mortality at lower biomass levels would have 
more long-term positive benefits on predators, compared to control 
rules that allow higher fishing mortalities (status quo).
    In addition to providing for herring's role as forage in the 
ecosystem, the control rule is also intended to provide for a sustained 
participation of fishing communities that depend on herring. 
Information about the importance of herring to affected fishery-related 
businesses and communities was included in the FEIS. The FEIS describes 
preventing overfishing and optimizing yield as expected long-term 
impacts of establishing an ABC control rule. It also concludes that 
these impacts are expected to benefit herring fishery-related business, 
herring fishing communities, and other communities that depend on 
predators of herring (e.g., other commercial fisheries, recreational 
fisheries, ecotourism). In the short term, the FEIS explains there will 
likely be negative impacts on herring vessels, since catch levels would 
likely be greatly reduced until herring biomass and recruitment 
increase. But, it acknowledges negative short-term economic impacts are 
expected under all the control rule alternatives, including status quo, 
based on low projected herring biomass for the next several years. 
Therefore, because the potential benefits, biological as well as 
socioeconomic, are commensurate with potential costs, we determined the 
ABC control rule is consistent with the Magnuson-Stevens Act.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the 
National Marine Fisheries Service (NMFS) Assistant Administrator has 
determined that this final rule is consistent with Amendment 8 to the 
Herring FMP, other provisions of the Magnuson-Stevens Act, and other 
applicable law.
    NMFS is also implementing regulations in this rule that are 
necessary to carry out any fishery management plan or amendment 
pursuant to section 305(d) of the Magnuson-Stevens Act, which provides 
that the Secretary of Commerce may promulgate regulations necessary to 
carry out a FMP or the Magnuson-Stevens Act.
    This final rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866.
    This final rule is not an E.O. 13771 regulatory action because this 
action is not significant under E.O. 12866.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    The Council prepared an FEIS for Amendment 8 to the Herring FMP. We 
filed the FEIS with the Environmental Protection Agency on August 12, 
2019. A notice of availability for the FEIS was published in the 
Federal Register on August 16, 2019 (84 FR 41988). The FEIS describes 
the impacts of the measures on the environment. This amendment 
establishes a herring ABC control rule and prohibits the use of 
midwater trawl gear in inshore waters from Canada to Connecticut. The 
biological impact of the ABC control rule on the herring resource is 
expected to be positive. However, other factors, such as environmental 
conditions, may have an even greater influence on herring biomass and 
could affect the stock regardless of the control rule. Short-term 
revenue reductions are expected as a result of the ABC control

[[Page 1821]]

rule likely resulting in negative economic impacts on the herring 
fishery, with ripple effects on the communities involved in the 
Atlantic mackerel and lobster fisheries. These negative economic 
impacts are expected to be exacerbated by the low herring biomass and 
recruitment identified in the 2020 stock assessment. In the long term, 
fishing under a control rule that ensures continued, sustainable 
harvest of the herring resource is expected to benefit the herring 
fishery and its communities, as well as indirectly benefiting fisheries 
that rely on herring as forage in the ecosystem. The biological impacts 
of prohibiting midwater trawling in inshore areas on the herring 
resource are expected to be neutral to low positive if the measure 
prevents the fishery from harvesting the annual catch limit (ACL) or 
reduces fishing pressure on the inshore stock component. However, in 
the short term, the ACL is expected to be low, so the fishery is 
expected to be able to harvest the ACL. The biological impacts of 
prohibiting trawling on non-target and protected species are somewhat 
uncertain due to unknown effort shifts. Midwater trawl effort may move 
offshore or some vessels may decide to change gear type in order to 
continue fishing inshore. The socioeconomic impacts are expected to be 
negative for the midwater trawl fleet and associated fishing 
communities. The gear prohibition is estimated to impact about 30 
percent of total revenue for midwater water trawl vessels. Some of this 
revenue may be recovered by fishing in offshore areas, but trips costs 
will be higher. The socioeconomic impacts of the gear prohibition on 
predator fisheries and ecotourism industries are expected to be 
potentially low positive. This ecosystem is complex and the linkages 
between herring and predators are complex: Having less fishing pressure 
in one area may not necessarily mean there are positive impacts on a 
predator that spends time in that area, as well as other areas. 
Potential negative impacts associated with user conflicts in these 
areas are expected to be lower. However, some effort will shift so 
there could be increased conflicts in other areas and seasons that do 
not exist now. In approving Amendment 8 on November 19, 2019, NMFS 
issued a Record of Decision (ROD) identifying the selected alternative. 
A copy of the ROD is available from NMFS (see FOR FURTHER INFORMATION 
CONTACT).
    We prepared a final regulatory flexibility analysis (FRFA) in 
support of this action. The FRFA incorporates the initial RFA (IRFA), a 
summary of the significant issues raised by the public comments in 
response to the IRFA, our 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 EIS/RIR/IRFA are available upon 
request (see ADDRESSES) or via the internet at: http://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 268 comment letters on the NOA and proposed rule. Those 
comments, and our responses, are contained in the Comments and 
Responses section of this final rule and are not repeated here. 
Comments 1, 2, 4, 7, 9, 13, and 14 discussed the economic impacts of 
the measures, but did not directly comment on the IRFA. All revisions 
and clarifications to the proposed rule, as well as the rationale for 
those revisions, are described in Revisions and Additional 
Clarifications to the Proposed Rule section of this final rule and are 
not repeated here.

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

    Effective July 1, 2016, NMFS established a small business size 
standard of $11 million in annual gross receipts for all businesses 
primarily engaged in the commercial fishing industry for RFA compliance 
purposes only (80 FR 81194, December 29, 2015). A commercial fishing 
business is classified as a small business if it is independently owned 
and operated, is not dominant in its field of operation, and has 
combined annual receipts not in excess of $11 million.
    This action affects all permitted herring vessels. Therefore, the 
direct regulated entity is a firm that owns at least one herring 
permit. There are many firms that hold an open-access Category D 
herring permit. Unlike open-access Category E herring permit holders, 
Category D permit holding firms harvest only a small fraction of 
herring and do not typically use midwater trawl gear so they are 
minimally affected by the regulations. Category E permit holding firms, 
however, are affected by the regulations because they have a higher 
possession limit (20,000 lb (9,072 kg) versus 6,600 lb (2,994 kg)) and 
are more likely to use midwater trawl gear.
    As of June 1, 2018, there were 862 firms (852 small) that held at 
least 1 herring permit. There were 126 (123 small) firms that were 
active in the herring fishery (i.e., having landed herring in 2017) and 
held at least 1 herring permit. There were 101 (94 small) firms that 
held at least 1 limited access (Categories A, B, C) herring permit or a 
Category E open access herring permit. There were 53 (50 small) firms 
that held a limited access or Category E herring permit and were active 
in the herring fishery. Table 1 characterizes ``gross receipts'' and 
``herring receipts'' for firms that held a limited access or Category E 
open access herring permit. Table 2 characterizes ``gross receipts'' 
and ``herring receipts'' for firms that held a limited access or 
Category E open access herring permit and were active in the herring 
fishery. In both tables, the small entities are further characterized 
by gear type to facilitate comparisons. There are fewer than three 
large entities that use midwater trawl gear, so the description of the 
large entities is not disaggregated to gear type to preserve 
confidentiality under the Magnuson-Stevens Act. Table 3 characterizes 
``gross receipts'' and ``herring receipts'' for firms that held a 
herring permit and Table 4 characterizes ``gross receipts'' and 
``herring receipts'' for firms that held a herring permit and were 
active in the herring fishery. Tables 3 and 4 include firms with 
Category D open access herring permits that would be minimally impacted 
by this action.

   Table 1--Average Receipts From Firms With Limited Access and Category E Open Access Herring Permits in 2017
----------------------------------------------------------------------------------------------------------------
                                                                                                      Herring
               Firm size                     Firms                Gear            Gross receipts     receipts
----------------------------------------------------------------------------------------------------------------
Large.................................               7  All.....................     $20,396,374        $492,598
Small.................................               9  Midwater Trawl..........       2,499,646       1,241,225

[[Page 1822]]

 
Small.................................              85  Non-Midwater Trawl......       1,299,110         137,954
----------------------------------------------------------------------------------------------------------------
Source: NMFS.


  Table 2--Average Receipts From Firms With Limited Access and Category E Open Access Herring Permits That Were
                                      Active in the Herring Fishery in 2017
----------------------------------------------------------------------------------------------------------------
                                                                                                      Herring
               Firm size                     Firms                Gear            Gross receipts     receipts
----------------------------------------------------------------------------------------------------------------
Large.................................               3  All.....................     $16,567,731      $1,149,395
Small.................................               9  Midwater Trawl..........       2,499,646       1,241,225
Small.................................              41  Non-Midwater Trawl......       1,276,255         286,002
----------------------------------------------------------------------------------------------------------------
Source: NMFS.


                     Table 3--Average Receipts From All Firms With a Herring Permit in 2017
----------------------------------------------------------------------------------------------------------------
                                                                                                      Herring
               Firm size                     Firms                Gear            Gross receipts     receipts
----------------------------------------------------------------------------------------------------------------
Large.................................              10  All.....................     $19,873,801        $344,818
Small.................................               9  Midwater Trawl..........       2,499,646       1,241,225
Small.................................             843  Non-Midwater Trawl......         639,591          14,002
----------------------------------------------------------------------------------------------------------------
Source: NMFS.


 Table 4--Average Receipts From All Firms With a Herring Permit That Were Active in the Herring Fishery in 2017
----------------------------------------------------------------------------------------------------------------
                                                                                                      Herring
               Firm size                     Firms                Gear            Gross receipts     receipts
----------------------------------------------------------------------------------------------------------------
Large.................................               3  All.....................     $16,567,731      $1,149,395
Small.................................               9  Midwater Trawl..........       2,499,646       1,241,225
Small.................................             114  Non-Midwater Trawl......         681,943         103,540
----------------------------------------------------------------------------------------------------------------
Source: NMFS.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action contains no new collection-of-information, reporting, 
or recordkeeping requirements.

Federal Rules Which May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    This action does not duplicate, overlap, or conflict with any other 
Federal rules.

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

    Recognizing the potential economic impact of this amendment, the 
Council recommended measures that achieved the amendment goals while 
minimizing negative economic impacts on fishery participants.
    Of all the ABC control rule alternatives considered by the Council, 
the Council recommended the control rule that would provide the second 
highest level of catch. This control rule was developed by the Council 
to reflect its harvest policy for herring and provide for a long-term 
sustainable herring fishery. It moderately reduces fishing mortality 
(80 percent of the rate that supports maximum sustainable yield reduced 
from 90 percent) when biomass is high, eliminates catch in response to 
low biomass (10 percent or less of the biomass to support maximum 
sustainable yield), and takes into account herring's role as forage for 
predators. As described previously, an external peer review found the 
results of the MSE were sufficient for identifying and analyzing a 
range of ABC control rule alternatives and that the MSE represents the 
best available science for evaluating the performance of herring 
control rules and their potential impact on key predators. Similar to 
the inshore midwater trawl restricted area, the ABC control rule also 
considers impacts across user groups. The control rule modestly reduces 
the amount of catch available to the herring and lobster fisheries to 
support herring as forage for other user groups. The Council 
anticipates that short-term negative economic impacts on participants 
in the herring, mackerel, or lobster fisheries resulting from a reduced 
herring harvest may become a long-term economic benefit for other user 
groups. Especially if the control rule performs as recommended by the 
Council, with a low variation in yield, low probability of a herring 
fishery shutdown, and low probability of overfishing.
    The Council developed the inshore midwater trawl restricted area 
consistent with the amendment's problem statement and the FEIS's 
overlap analysis. The Council considered other alternatives to minimize 
user group conflict, including prohibiting midwater trawling inshore of 
25 nautical miles (46 km) and 50 nautical miles (93 km), but 
recommended a shallower midwater trawl restricted area instead as a way 
to

[[Page 1823]]

more fairly and equitably balance the costs and benefits of the 
measure. Additionally, to help mitigate the economic impact of the 
inshore midwater trawl restricted area and provide access for the 
mackerel fishery, the Council also recommended that RSA compensation 
fishing trips would be exempt from the prohibition on inshore midwater 
trawling.
    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 fishery bulletin that serves as a small 
entity compliance guide was prepared. Copies of this final rule are 
available from the Greater Atlantic Regional Fisheries Office (GARFO), 
and the fishery bulletin (i.e., compliance guide) will be sent to all 
holders of permits for the herring fishery. The fishery bulletin and 
this final rule will be posted on the GARFO website.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: December 29, 2020.
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, revise the definition for ``Observer or monitor'' 
and add the definition for ``Slippage in the Atlantic herring 
fishery.''


Sec.  648.2  Definitions.

* * * * *
    Observer or monitor means any person certified by NMFS to collect 
operational fishing data, biological data, or economic data through 
direct observation and interaction with operators of commercial fishing 
vessels as part of NMFS' Northeast Fisheries Observer Program. 
Observers or monitors include NMFS-certified fisheries observers, at-
sea monitors, portside samplers, and dockside monitors.
* * * * *
    Slippage in the Atlantic herring fishery means discarded catch from 
a vessel issued an Atlantic herring permit that is carrying a NMFS-
certified observer or monitor prior to the catch being brought on board 
or prior to the catch being made available for sampling and inspection 
by a NMFS-certified observer or monitor after the catch is on board. 
Slippage also means any catch that is discarded during a trip prior to 
it being sampled portside by a portside sampler on a trip selected for 
portside sampling coverage by NMFS. Slippage includes releasing catch 
from a codend or seine prior to the completion of pumping the catch 
aboard and the release of catch from a codend or seine while the codend 
or seine is in the water. Fish that cannot be pumped and remain in the 
codend or seine at the end of pumping operations are not considered 
slippage. Discards that occur after the catch is brought on board and 
made available for sampling and inspection by a NMFS-certified observer 
or monitor are also not considered slippage.
* * * * *

0
3. Amend Sec.  648.11 by:
0
a. Revising paragraphs (h)(1), (4)(ii), (5)(ii)(C), (5)(iv)(A), 
(5)(vi), (5)(vii)(A), and (5)(vii)(G);
0
b. Revising paragraphs (i)(1), (2), (3)(ii), (4)(iii), and (5);
0
c. Revising paragraph (k)(4)(i); and
0
d. Revising paragraphs (m)(1)(v), (2)(iii)(C), and (4)(i).


Sec.  648.11  Monitoring coverage.

* * * * *
    (h) * * * (1) General. An entity seeking to provide monitoring 
services, including services for IFM Programs described in paragraph 
(g) of this section, must apply for and obtain approval from NMFS 
following submission of a complete application. Monitoring services 
include providing NMFS-certified observers, monitors (at-sea monitors 
and portside samplers), and/or electronic monitoring. A list of 
approved monitoring service providers shall be distributed to vessel 
owners and shall be posted on the NMFS Fisheries Sampling Branch (FSB) 
website: https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs.
* * * * *
    (4) * * *
    (ii) If NMFS approves the application, the monitoring service 
provider's name will be added to the list of approved monitoring 
service providers found on the NMFS/FSB website and in any outreach 
information to the industry. Approved monitoring service providers 
shall be notified in writing and provided with any information 
pertinent to its participation in the observer or monitor programs.
* * * * *
    (5) * * *
    (ii) * * *
    (C) The required observer or monitor equipment, in accordance with 
equipment requirements, prior to any deployment and/or prior to NMFS 
observer or monitor certification training; and
* * * * *
    (iv) * * * (A) A candidate observer's first several deployments and 
the resulting data shall be immediately edited and approved after each 
trip by NMFS/FSB prior to any further deployments by that observer. If 
data quality is considered acceptable, the observer would be certified.
* * * * *
    (vi) Observer and monitor training requirements. A request for a 
NMFS/FSB Observer or Monitor Training class must be submitted to NMFS/
FSB 45 calendar days in advance of the requested training. The 
following information must be submitted to NMFS/FSB at least 15 
business days prior to the beginning of the proposed training: A list 
of observer or monitor candidates; candidate resumes, cover letters and 
academic transcripts; and a statement signed by the candidate, under 
penalty of perjury, that discloses the candidate's criminal 
convictions, if any. A medical report certified by a physician for each 
candidate is required 7 business days prior to the first day of 
training. CPR/First Aid certificates and a final list of training 
candidates with candidate contact information (email, phone, number, 
mailing address and emergency contact information) are due 7 business 
days prior to the first day of training. NMFS may reject a candidate 
for training if the candidate does not meet the minimum qualification 
requirements as outlined by NMFS/FSB minimum eligibility standards for 
observers or monitors as described on the National Observer Program 
website: https://www.fisheries.noaa.gov/topic/fishery-observers#become-an-observer.
    (vii) * * *
    (A) Deployment reports. The monitoring service provider must report 
to NMFS/FSB when, where, to whom, and to what vessel an observer or 
monitor has been deployed, as soon as practicable, and according to

[[Page 1824]]

requirements outlined by NMFS. The deployment report must be available 
and accessible to NMFS electronically 24 hours a day, 7 days a week. 
The monitoring service provider must ensure that the observer or 
monitor reports to NMFS the required electronic data, as described in 
the NMFS/FSB training. Electronic data submission protocols will be 
outlined in training and may include accessing government websites via 
personal computers/devices or submitting data through government issued 
electronics. The monitoring service provider shall provide the raw 
(unedited) data collected by the observer or monitor to NMFS at the 
specified time per program.
* * * * *
    (G) Status report. The monitoring service provider must provide 
NMFS/FSB with an updated list of contact information for all observers 
or monitors that includes the identification number, name, mailing 
address, email address, phone numbers, homeports or fisheries/trip 
types assigned, and must include whether or not the observer or monitor 
is ``in service,'' indicating when the observer or monitor has 
requested leave and/or is not currently working for an industry-funded 
program. Any Federally contracted NMFS-certified observer not actively 
deployed on a vessel for 30 days will be placed on Leave of Absence 
(LOA) status (or as specified by NMFS/FSB according to most recent 
Information Technology Security Guidelines. Those Federally contracted 
NMFS-certified observers on LOA for 90 days or more will need to 
conduct an exit interview with NMFS/FSB and return any NMFS/FSB issued 
gear and Common Access Card (CAC), unless alternative arrangements are 
approved by NMFS/FSB. NMFS/FSB requires 2-week advance notification 
when a Federally contracted NMFS-certified observer is leaving the 
program so that an exit interview may be arranged and gear returned.
* * * * *
    (i) * * * (1) Requirements. To be certified, employees or sub-
contractors operating as observers or monitors for monitoring service 
providers approved under paragraph (h) of this section. In addition, 
observers must meet NMFS National Minimum Eligibility Standards for 
observers specified at the National Observer Program website: https://www.fisheries.noaa.gov/topic/fishery-observers#become-an-observer.
    (2) Observer or monitor training. In order to be deployed on any 
fishing vessel, a candidate observer or monitor must have passed an 
appropriate NMFS/FSB Observer Training course and must adhere to all 
NMFS/FSB program standards and policies. If a candidate fails training, 
the candidate and monitoring service provider shall be notified 
immediately by NMFS/FSB. Observer training may include an observer 
training trip, as part of the observer's training, aboard a fishing 
vessel with a trainer. Contact NMFS/FSB for the required number of 
program specific observer and monitor training certification trips for 
full certification following training.
    (3) * * *
    (ii) Be physically and mentally capable of carrying out the 
responsibilities of an observer on board fishing vessels, pursuant to 
standards established by NMFS. Such standards shall be provided to each 
approved monitoring service provider.
* * * * *
    (4) * * *
    (iii) Be physically and mentally capable of carrying out the 
responsibilities of a monitor on board fishing vessels, pursuant to 
standards established by NMFS. Such standards shall be provided to each 
approved monitoring service provider.
* * * * *
    (5) Probation and decertification. NMFS may review observer and 
monitor certifications and issue observer and monitor certification 
probation and/or decertification as described in NMFS policy.
* * * * *
    (k) * * *
    (4) * * *
    (i) An owner of a scallop vessel required to carry an observer 
under paragraph (k)(3) of this section must arrange for carrying an 
observer certified through the observer training class operated by the 
NMFS/FSB from an observer service provider approved by NMFS under 
paragraph (h) of this section. The owner, operator, or vessel manager 
of a vessel selected to carry an observer must contact the observer 
service provider and must provide at least 48-hr notice in advance of 
the fishing trip for the provider to arrange for observer deployment 
for the specified trip. The observer service provider will notify the 
vessel owner, operator, or manager within 18 hr whether they have an 
available observer. A list of approved observer service providers shall 
be posted on the NMFS/FSB website: https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs. 
The observer service provider may take up to 48 hr to arrange for 
observer deployment for the specified scallop trip.
* * * * *
    (m) * * *
    (1) * * *
    (v) To provide the required IFM coverage aboard declared Atlantic 
herring trips, NMFS-certified observers and monitors must hold a high 
volume fisheries certification from NMFS/FSB.
    (2) * * *
    (iii) * * *
    (C) For a waiver of IFM requirements on trip by a wing vessel as 
described in paragraph (m)(1)(ii)(E) of this section.
* * * * *
    (4) * * *
    (i) An owner of an Atlantic herring vessel required to have 
monitoring under paragraph (m)(3) of this section must arrange for 
monitoring by an individual certified through training classes operated 
by the NMFS/FSB and from a monitoring service provider approved by NMFS 
under paragraph (h) of this section. The owner, operator, or vessel 
manager of a vessel selected for monitoring must contact a monitoring 
service provider prior to the beginning of the trip and the monitoring 
service provider will notify the vessel owner, operator, or manager 
whether monitoring is available. A list of approved monitoring service 
providers shall be posted on the NMFS/FSB website: https://www.fisheries.noaa.gov/resource/data/observer-providers-northeast-and-mid-atlantic-programs.
* * * * *

0
4. In Sec.  648.14, add paragraphs (r)(1)(vi)(H) and (I) to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (vi) * * *
    (H) Use, deploy, or fish with midwater trawl gear within the 
inshore midwater trawl restricted area as defined in Sec.  
648.202(a)(2), unless the vessel is on a declared research set-aside 
trip and operating as authorized by an exempted fishing permit or the 
vessel has not been issued a valid, federal permit under this part and 
fishes exclusively in state waters.
    (I) Transit the inshore midwater trawl restricted area, defined in 
Sec.  648.202(a)(2), with midwater trawl gear onboard unless midwater 
trawl gear is stowed and not available for immediate use, as defined in 
Sec.  648.2 or the vessel has not been issued a valid, federal permit 
under this part and fishes exclusively in state waters.
* * * * *

[[Page 1825]]


0
5. In Sec.  648.200, revise paragraphs (b)(1), (2), and (3) to read as 
follows:


Sec.  648.200  Specifications.

* * * * *
    (b) * * *
    (1) 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 the fishing rate supporting maximum sustainable 
yield (e.g., FMSY or proxy). Catch that exceeds this amount 
would result in overfishing. The stock is considered overfished if 
stock biomass is less than \1/2\ the stock biomass associated with the 
MSY level or its proxy (e.g., SSBMSY or proxy). The stock is 
considered subject to overfishing if the fishing mortality rate exceeds 
the fishing mortality rate associated with the MSY level or its proxy 
(e.g., FMSY or proxy).
    (2) ABC must be less than the OFL. The Council's Scientific and 
Statistical Committee (SSC) shall recommend ABC to the Council by 
applying the ABC control rule and considering scientific uncertainty. 
Scientific uncertainty, including, but not limited to, uncertainty 
around stock size estimates, variability around estimates of 
recruitment, and consideration of ecosystem issues, shall be considered 
when setting ABC.
    (3) ACL must be equal to or less than the ABC. Management 
uncertainty, which includes, but is not limited to, expected catch of 
herring in the New Brunswick weir fishery and the uncertainty around 
discard estimates of herring caught in Federal and state waters, shall 
be considered when setting the ACL. Catch in excess of the ACL shall 
trigger accountability measures (AMs), as described in Sec.  
648.201(a).
* * * * *

0
6. In Sec.  648.202, revise paragraph (a) to read as follows:


Sec.  648.202  Season and area restrictions.

    (a) Midwater Trawl Restricted Areas. (1) Area 1A. Federally 
permitted vessels fishing for Atlantic herring may not use, deploy, or 
fish with midwater trawl gear in Area 1A from June 1 September 30 of 
each fishing year. A vessel with midwater trawl gear on board may 
transit Area 1A from June 1-September 30, provided such midwater trawl 
gear is stowed and not available for immediate use as defined in Sec.  
648.2. Vessels may use any authorized gear type to harvest herring in 
Area 1A from October 1-May 31.
    (2) Inshore. Federally permitted vessels may not use, deploy, or 
fish with midwater trawl gear within the inshore midwater trawl 
restricted area. A federally permitted vessel with midwater trawl gear 
on board may transit the inshore midwater trawl restricted area, 
provided such midwater trawl gear is stowed and not available for 
immediate use as defined in Sec.  648.2. Vessels on a declared research 
set-aside trip are permitted to use, deploy, or fish with midwater 
trawl gear within the inshore midwater trawl restricted areas provided 
the vessel is operating as authorized by an exempted fishing permit. 
The Inshore Midwater Trawl Restricted Area includes all state and 
federal waters between the US coastline and the following points, 
connected in the order listed by straight lines, unless otherwise 
noted:

                                           Table 1 to Paragraph (a)(2)
----------------------------------------------------------------------------------------------------------------
                Point                           Latitude                      Longitude                Note
----------------------------------------------------------------------------------------------------------------
IMT1................................  44[deg] 17.986' N             67[deg] 5.503' W                         1 2
IMT2................................  42[deg] 00.00' N              69[deg] 43.474' W                        2 3
IMT3................................  42[deg] 00.00' N              69[deg] 30.00' W              ..............
IMT4................................  41[deg] 00.00' N              69[deg] 30.00' W              ..............
IMT5................................  41[deg] 00.00' N              70[deg] 00.00' W              ..............
IMT6................................  41[deg] 2.339' N              70[deg] 00.00' W                         4 5
IMT7................................  40[deg] 50.637' N             71[deg] 51.00' W                         5 6
IMT8................................  41[deg] 18.503' N             71[deg] 51.00' W                         \7\
----------------------------------------------------------------------------------------------------------------
\1\ Point IMT1 represents the intersection of the U.S./Canada Maritime Boundary and the 12 nautical mile (nmi)
  Territorial Sea boundary.
\2\ From Point IMT1 to Point IMT2 following the 12 nmi Territorial Sea boundary.
\3\ Point IMT2 represents the intersection of the 12 nmi Territorial Sea boundary and 42[deg]00' N lat.
\4\ Point IMT6 represents the intersection of 70[deg]00' W long. and the 12 nmi Territorial Sea boundary.
\5\ From Point IMT6 to Point IMT7 following the 12 nmi Territorial Sea Boundary.
\6\ Point IMT7 represents the intersection of 71[deg]51' W long. and the 12 nmi Territorial Sea boundary.
\7\ Point IMT8 represents the intersection of 71[deg]51' W long. and the coastline of Watch Hill, RI.

* * * * *

0
7. In Sec.  648.206, revise paragraphs (b)(3), (b)(37) and (b)(38) and 
add paragraph (b)(39) to read as follows:


Sec.  648.206  Framework provisions.

* * * * *
    (b) * * *
    (3) Closed areas, including midwater trawl restricted areas, other 
than spawning closures;
* * * * *
    (37) River herring and shad Catch Cap Areas and Catch Cap Closure 
Areas;
    (38) Modifications to the ABC control rule, including, but not 
limited to, control rule parameters, if a quantitative stock assessment 
is not available, if the projections are producing ABCs that are not 
justified or consistent with available information, or if the stock 
requires a rebuilding program; and
    (39) Any other measure currently included in the FMP.
* * * * *
[FR Doc. 2020-29127 Filed 1-8-21; 8:45 am]
BILLING CODE 3510-22-P