[Federal Register Volume 87, Number 41 (Wednesday, March 2, 2022)]
[Proposed Rules]
[Pages 11680-11685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04294]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 220224-0057]
RIN 0648-BL06


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic 
Herring Fishery; Framework Adjustment 9

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This action proposes to approve and implement Framework 
Adjustment 9 to the Atlantic Herring Fishery Management Plan. This 
proposed rule would establish a rebuilding plan for herring, adjust 
accountability measure catch threshold triggers when catch exceeds a 
herring annual catch limit or management area sub-annual catch limit, 
and revise existing regulations to clarify area closure and possession 
limit restrictions and add prohibitions that were inadvertently omitted 
from previous management actions. This action is necessary to respond 
to updated scientific information and to achieve the goals and 
objectives of the fishery management plan. The proposed measures are 
intended to help prevent overfishing, rebuild the overfished herring 
stock, achieve optimum yield, and ensure that management measures are 
based on the best scientific information available.

DATES: Public comments must be received by March 17, 2022.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2022-0021, 
by the following method:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0021 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
    Instructions: Comments sent by any other method or received after 
the end of the comment period may not be considered by NMFS. All 
comments received are a part of the public record and will generally be 
posted for public viewing on www.regulations.gov without change. All 
personal identifying information (e.g., name, address, etc.), 
confidential business information, or otherwise sensitive information 
submitted voluntarily by the sender will be publicly accessible. We 
will accept anonymous comments (enter ``N/A'' in the required fields if 
you wish to remain anonymous).
    Copies of Framework 9, including the Environmental Assessment (EA) 
and the Regulatory Impact Review (RIR) prepared by the New England 
Fishery Management Council 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 https://www.nefmc.org/management-plans/herring or http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Maria Fenton, Fishery Management 
Specialist, (978) 281-9196, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Regulations implementing the Atlantic Herring Fishery Management 
Plan (FMP) appear at 50 CFR part 648, subpart K. The herring fishery is 
managed using annual catch limits (ACL) and Management Area sub-ACLs, 
possession limits, gear restrictions, and seasonal sub-ACL periods. In-
season accountability measures (AM), including possession limit 
reductions and fishery closures, help ensure catch does not exceed the 
ACL or sub-ACLs. Reactive AMs require that when total catch exceeds an 
ACL or sub-ACL, the amount of the overage is deducted from the 
applicable sub-ACL and ACL in a subsequent fishing year.
    The Northeast Fisheries Science Center (NEFSC) completed the most 
recent Management Track Assessment of the Atlantic herring stock in 
June 2020. The draft assessment summary report is available on the 
NEFSC website (https://apps-nefsc.fisheries.noaa.gov/saw/sasi/sasi_report_options.php). The assessment indicated that the stock is 
not subject to overfishing, but is now overfished. This represents a 
change from the 2018 assessment, which indicated that the stock was not 
subject to overfishing and was approaching an overfished condition. The 
2020 assessment also indicated that herring recruitment continues to be 
at historic low levels. Based on these findings, NMFS notified the New 
England Fishery Management Council in October 2020 that it must prepare 
and implement a new

[[Page 11681]]

rebuilding plan for herring. The deadline to implement this rebuilding 
plan is October 13, 2022.
    The Council developed Framework 9 to implement a herring rebuilding 
plan that would prevent overfishing and rebuild the stock, as required 
by section 303 of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA). This action also includes adjustments to AM catch 
threshold triggers when catch exceeds a herring ACL or sub-ACL, and 
revisions to clarify existing regulations. The Council submitted the 
amendment and draft Environmental Assessment (EA) to NMFS for review on 
November 10, 2021. The Council reviewed the proposed regulations in 
this proposed rule, as drafted by NMFS, and deemed them to be necessary 
and appropriate, as specified in section 303(c) of the MSA.

Proposed Measures

    Under the MSA, NMFS is required to publish proposed rules for 
comment after preliminarily determining whether they are consistent 
with applicable law. The MSA requires NMFS to approve, partially 
approve, or disapprove measures proposed by the Council based only on 
whether the measures are consistent with the FMP, plan amendment, the 
MSA and its National Standards, and other applicable law. NMFS is 
proposing and seeking comment on the proposed measures in Framework 9, 
as recommended by the Council.

1. Herring Rebuilding Plan

    When a stock is determined to be overfished, section 304(e)(3) of 
the MSA requires the appropriate Council to prepare and implement a 
fishery management plan, plan amendment, or proposed regulations to end 
overfishing immediately in the fishery and to rebuild the affected 
stock. Section 304(e)(4) of the MSA requires that the rebuilding plan 
shall be as short as possible, taking into account the status and 
biology of any overfished stocks, the needs of fishing communities, and 
the interaction of the overfished stock within the marine ecosystem. 
The rebuilding plan must rebuild the stock within 10 years.
    The Council considered a range of rebuilding plan alternatives 
during the development of Framework 9: No rebuilding plan (Alternative 
1); a rebuilding plan that would set fishing mortality targets 
according to the Council's acceptable biological catch (ABC) control 
rule (Alternative 2); and a rebuilding plan that would set fishing 
mortality targets based on a constant fishing mortality rate (F) 
(Alternative 3) (Table 1). Alternative 2 reflects the Council's harvest 
policy for herring, and Alternative 3 was intended to mitigate negative 
socioeconomic impacts while the stock rebuilds. The Council also 
considered but rejected Alternative 3A, which would set fishing 
mortality targets based on a constant mortality rate that was lower 
than the constant rate in Alternative 3. Alternative 3A was intended to 
provide the Council with an alternative that would provide higher 2023 
catch limits than Alternative 2 in order to support the fishery and its 
accompanying infrastructure, but a more conservative F than 
Alternatives 2 or 3 for the duration of the rebuilding period in 
recognition of recent low recruitment. The Council ultimately selected 
Alternative 2, which would continue the ABC control rule currently used 
in setting herring specifications. The rationale for the Council's 
decision is provided below.

       Table 1--Summary of Rebuilding Alternatives in Framework 9
------------------------------------------------------------------------
                                   Fishing mortality
     Rebuilding alternatives           rate (F)        Rebuilding period
------------------------------------------------------------------------
No Action (Alternative 1).......  Biomass-Based       None.
                                   (0.09 to 0.43).
Alternative 2 (ABC control rule)  Biomass-Based       5 years.
                                   (0.09 to 0.43).
Alternative 3...................  Constant (0.48)...  7 years.
------------------------------------------------------------------------

    Consistent with the 2020 assessment, each rebuilding alternative 
assumes that future herring recruitment will resemble long-term average 
recruitment. Projections indicate that the herring stock can rebuild in 
the shortest amount of time under Alternative 2 (5 years; by fishing 
year 2026). Because recent recruitment has been historically low, the 
Herring Plan Development Team (PDT) explored rebuilding sensitivity 
analyses assuming a conservative recruitment estimate. Projections 
using the conservative recruitment estimate extend the rebuilding 
period under Alternative 2 (from 5 years to 9 years) and lower F under 
Alternative 3 (from 0.48 to 0.36) to rebuild the stock in 7 years. 
Because Alternative 3A was added for consideration late in the 
development of Framework 9 and ultimately rejected, sensitivity 
analyses were not prepared for this alternative.
    By continuing the use of the current ABC control rule under 
Alternative 2, this action would generate ABCs 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 maximum sustainable yield (MSY). During the development of the ABC 
control rule in Amendment 8, the Council discussed how to proceed with 
applying the rule if the herring stock became overfished. Amendment 8 
provides that if the F derived from the ABC control rule is sufficient 
to meet rebuilding requirements, then the ABC control rule should be 
adhered to under a rebuilding plan. Additionally, recent low 
recruitment suggests that the long-term average recruitment assumption 
used to generate biomass projections may not reflect the current 
reality of the stock. Therefore, while projections suggest that there 
are not substantial differences in the overall performance of each 
alternative under consideration, the Council supported being more risk-
averse in the current situation where herring biomass is estimated to 
be very low. Because of these reasons, the Council recommended 
implementing a rebuilding plan that would set ABCs consistent with the 
existing ABC control rule. This rulemaking proposes the Council's 
recommendations.
    Under the ABC control rule, when biomass (B) is at or above 50 
percent of the biomass that can support harvest of the maximum 
sustainable yield (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. 
Under the proposed rebuilding plan, F would range from a low of 0.08 
(fishing year 2023) to a high of 0.43 (fishing year 2026) based on 
current stock biomass projections. The ABC control rule allows for a 
maximum F of 0.43 because 0.43 is 80 percent of the current estimate of 
FMSY (0.54).
    The proposed rebuilding plan is expected to result in short-term 
negative impacts to the herring fishery due to low catch limits during 
the first several years of the rebuilding period. However, the long-
term benefits of rebuilding the

[[Page 11682]]

herring stock as quickly as possible and stabilizing the fishery are 
expected to outweigh these short-term economic costs. The proposed 
rebuilding plan would not result in any changes to the fishing year 
2022 ABC, so the specifications that the fishery is currently operating 
under would not be disrupted. Additionally, other industries that rely 
on herring predators also need to be considered when examining the 
socioeconomic impacts of the rebuilding plan. The ABC 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 0 when biomass is low.

2. Adjustments to Accountability Measure Catch Threshold Triggers

    The Council recommended adjustments to the AM catch threshold 
triggers when a herring ACL or Management Area sub-ACL is exceeded. 
Currently, herring regulations at Sec.  648.201(a)(3) require that if 
NMFS determines that total catch exceeded the ACL or a sub-ACL in a 
given fishing year, we will subtract the amount of the overage from the 
ACL and respective sub-ACL in the fishing year following total catch 
determination. Framework 9 proposes adjusting the AM catch threshold 
triggers so that an overage of a sub-ACL in one fishing year would only 
be deducted in a subsequent fishing year if the overage exceeded 10 
percent of the sub-ACL; and/or if the ACL was also exceeded. 
Additionally, if a sub-ACL was exceeded by more than 10 percent and the 
ACL was not also exceeded, only the portion of the sub-ACL overage 
above 10 percent would be deducted from the appropriate sub-ACL in a 
subsequent fishing year.
    Under these proposed regulations, the following overage scenarios 
would be possible:
     If catch exceeds a sub-ACL by 10 percent or less but does 
not exceed the ACL in a given fishing year, then NMFS would not deduct 
any amount of the overage from the applicable sub-ACL or ACL in the 
fishing year following total catch determination.
     If catch exceeds a sub-ACL by more than 10 percent but 
does not exceed the ACL in a given fishing year, then NMFS would 
subtract the amount of the overage above 10 percent from the applicable 
sub-ACL and ACL in the fishing year following total catch 
determination. For example, if catch exceeded the Area 1A sub-ACL by 15 
percent in a given fishing year and the ACL was not exceeded, the 
amount equal to the 5 percent overage would be deducted from the ACL 
and Area 1A sub-ACL in the fishing year following total catch 
determination.
     If catch exceeds a sub-ACL by any amount and also exceeds 
the ACL in a given fishing year, then NMFS would subtract the full 
amount of the sub-ACL overage from the applicable sub-ACL, and the full 
amount of the ACL overage from the ACL, in the fishing year following 
total catch determination. For example, if catch exceeded the Area 1A 
sub-ACL by 15 percent and the ACL by 5 percent in a given fishing year, 
the amount equal to the 15-percent overage would be deducted from the 
Area 1A sub-ACL and the amount equal to the 5-percent overage would be 
deducted from the ACL in the fishing year following total catch 
determination.
     If catch exceeds the ACL but does not exceed any sub-ACLs 
were exceeded in a given fishing year, then NMFS would subtract the 
full amount of the overage from the ACL in the fishing year following 
total catch determination. For example, if catch exceeded the herring 
ACL by 2 percent in a given fishing year and no sub-ACLs were exceeded, 
the amount equal to the 2-percent overage would be deducted from the 
ACL only in the fishing year following total catch determination.
    These proposed adjustments to the AM catch threshold triggers are 
intended to increase access to harvest and help offset the negative 
economic impacts of relatively small sub-ACL overages, which could 
occur given recent low catch limits and the high volume nature of the 
herring fishery. They are not expected to adversely affect the stock or 
the fishery management plan's area management program, while still 
preventing overharvesting of any individual stock components.

3. Revisions and Clarifications to Existing Regulations

    This proposed rule includes additional revisions to address 
regulatory text that is unnecessary, outdated, or unclear. These 
revisions were not adopted by the Council under Framework 9 but are 
being implemented consistent with section 305(d) of the MSA, which 
provides authority to the Secretary of Commerce to promulgate 
regulations necessary to ensure that amendments to an FMP are carried 
out in accordance with the FMP and the MSA. The revisions at Sec.  
648.13(f)(1)(ii)(B), (f)(2), (f)(5), and (f)(6) clarify that vessels 
are not allowed to catch or transfer at sea more than 40,000 lb 
(18,143.7 kg) of herring per trip or calendar day if the vessel is in, 
or the fish were harvested from, a management area subject to a 40,000-
lb (18,143.7 kg) herring possession limit. The revisions at Sec.  
648.14(r)(1)(ii)(B) clarify that it is unlawful for any person to land 
or attempt to land more than the possession limits specified at Sec.  
648.201(a) from a management area subject to a possession limit 
adjustment or fishery closure. The addition of paragraph Sec.  
648.14(r)(1)(iv)(F) clarifies that is it unlawful for any person to 
purchase, receive, possess, have custody of, sell, barter, trade or 
transfer more than 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) of 
herring, or attempt to do any of these things, from a management area 
subject to a herring possession limit pursuant to Sec.  648.201(a). The 
revisions at Sec.  648.14(r)(1)(vii)(A) clarify that vessels may not 
transit or be in a management area subject to a possession limit 
adjustment or fishery closure with more than the applicable herring 
possession limit, unless such herring were caught in an area not 
subject to the possession limit, all fishing gear is stowed and not 
available for immediate use, and the vessel is issued the appropriate 
herring permit. The revision at Sec.  648.201(a)(1)(i) changes the 
paragraph heading from ``Management area closure'' to ``Possession 
limit adjustments.'' The revisions at Sec.  648.201(a)(1)(i)(A), 
(a)(2)(i)(B)(1), (a)(1)(i)(B)(2), (a)(1)(ii), (a)(2), and (a)(4)(ii) 
update possession limit adjustment language to be consistent withSec.  
648.201(a)(1)(i), and clarify that vessels may not fish for, possess, 
transfer, receive, land, or sell more than the applicable possession 
limits described in those paragraphs, or attempt to do any of these 
things. The revisions at Sec.  648.201(b) and (c) correct typos by 
changing ``less than'' to ``greater than.'' The revisions at Sec.  
648.201(g)(1) update the language used in the carryover example to 
clarify the timing of when carryover is applied and how it is 
calculated. The final revision removes paragraph Sec.  648.201(g)(2) 
because the carryover provisions contained within only applied to 
fishing years 2021 and 2022 and are therefore no longer necessary. The 
Council concurs with these revisions.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator has determined that this proposed action is 
consistent with the Atlantic Herring FMP, provisions of the MSA, and 
other applicable law, subject to further consideration after public 
comment.
    This proposed action has been preliminarily determined to be not 
significant for purposes of Executive Order (E.O.) 12866.

[[Page 11683]]

    This proposed action does not contain policies with federalism or 
takings implications as those terms are defined in E.O. 13132 and E.O. 
12630, respectively.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed action, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
More information on this determination is provided below.
    The Council conducted an evaluation of the potential socioeconomic 
impacts of the proposed measures in conjunction with an environmental 
assessment. This proposed action would affect all vessels with permits 
to fish in the herring fishery; therefore, the direct regulated entity 
is a firm that controls at least one herring permit. In 2020, there 
were 9 large and 1,213 small firms that met this criteria. A firm was 
included if it owned at least one category A, B, C, D, or E Herring 
Permit on July 1, 2021. The nine large firms earned a combined $189 
million in fishing revenue (an average of about $21 million per large 
firm) over the trailing 3 years. About $2 million of that revenue (an 
average of about $225,000 per large firm) was derived from herring. The 
1,213 small entities earned a combined $655 million in fishing revenue 
(an average of about $540,000 per small firm). About $11 million of 
that revenue (an average of about $9,000 per small firm) was derived 
from herring.
    Many of the direct regulated entities described above hold an open 
access category D herring permit and no other herring permit. Impacts 
of the proposed rule are likely to be largest for the participants 
holding at least one category A, B, C, or E herring permit. In 2020, 
there were 6 large and 97 small firms that met this criteria. The six 
large entities earned a combined $129 million in fishing revenue (an 
average of about $21.5 million per large firm) over the trailing 3 
years. About $2 million of that revenue (an average of about $333,000 
per large firm) was derived from herring. The 97 small entities earned 
a combined $131 million in fishing revenue (an average of about $1.4 
million per small firm). About $11 million of that revenue (an average 
of about $111,000 per small firm) was derived from herring.
    Some of the firms described in the previous section are not active 
in the herring fishery, despite holding a category A, B, C, or E 
herring permit. For the purposes of this analysis, ``active'' is 
defined as deriving any revenue from herring in 2020. The measures 
proposed in this action are likely have the largest impact on vessels 
that are active in the herring fishery. In 2020, there were 2 large and 
29 small entities that meet these criteria. The 29 active small 
entities earned a combined $31.99 million in fishing revenue (an 
average of about $1.18 million per active small firm). About $10.65 
million of that revenue (an average of about $394,000 per active small 
firm) was derived from herring. Analyses indicate that, relative to the 
baseline, the economic impacts to both small and large firms resulting 
from the proposed measures are expected to be positive. Under the 
proposed rule, gross receipts are expected to increase by $26,000 for 
large firms (an average of about $2,900 per firm) and $134,000 for 
small firms (an average of about $110 per firm). Most of the additional 
revenue that is expected to result from the implementation of the 
proposed rule would accrue to small firms; however, the increase in 
gross receipts from fishing is quite small in magnitude. NMFS assumes 
that additional revenue would be distributed across firms in such a way 
that the gross receipts of the inactive firms would not increase.
    Because this action would either continue the use of the existing 
ABC control rule for specification-setting practices or allow for a 
slight increase in fishing opportunities and revenues, in combination 
with adjustments to AM catch threshold triggers, this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities. Therefore, an initial regulatory flexibility analysis 
is not required and none has been prepared.
    There are no new information collection requirements, including 
reporting or recordkeeping requirements, contained in this action.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: February 24, 2022.
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 
proposed to be 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.  648.13, revise paragraphs (f)(1)(ii)(B), (f)(2)(ii), and 
(f)(5) and (6) to read as follows:


Sec.  648.13   Transfers at sea.

* * * * *
    (f) * * *
    (1) * * *
    (ii) * * *
    (B) Provided that the transfer of herring at sea to another vessel 
for personal use as bait does not exceed the possession limit specified 
for the transferring vessel in Sec.  648.204, except that no more than 
2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) of herring may be caught 
or transferred per trip or per calendar day if the vessel is in, or the 
fish were harvested from, a management area subject to a possession 
limit adjustment or fishery closure as specified in Sec.  648.201.
    (2) * * *
    (ii) A vessel issued an Atlantic herring permit may transfer 
herring at sea to an Atlantic herring carrier up to the applicable 
possession limits specified in Sec.  648.204, provided it is issued a 
letter of authorization for the transfer of herring and that no more 
than 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) of herring may be 
caught or transferred at sea per trip or per calendar day if the vessel 
is in, or the fish were harvested from, an area subject to a possession 
limit adjustment or fishery closure as specified in Sec.  648.201.
* * * * *
    (5) Transfer to at-sea processors. A vessel issued an Atlantic 
herring permit may transfer herring to a vessel issued an at-sea 
processing permit specified in Sec.  648.6(a)(2)(ii), up to the 
applicable possession limit specified in Sec.  648.204, except that no 
more than 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) of herring may 
be caught or transferred at sea per trip or per calendar day if the 
vessel is in, or the fish were harvested from, a management area 
subject to a possession limit adjustment or fishery closure as 
specified in Sec.  648.201.
    (6) Transfers between herring vessels. A vessel issued a valid 
Atlantic herring permit may transfer and receive herring at sea, 
provided such vessel has been issued a letter of authorization from the 
Regional Administrator to transfer or receive herring at sea. Such 
vessel may not transfer, receive, or possess at sea, or land per trip 
herring in excess of the applicable possession limits specified in 
Sec.  648.204, except that no more than 2,000 lb (907.2 kg) or 40,000 
lb (18,143.7 kg) of herring may be caught, transferred, received, or 
possessed at sea, or landed per trip or per calendar day if the vessel 
is in, or the fish were harvested from, a management area

[[Page 11684]]

subject to a possession limit adjustment or fishery closure as 
specified in Sec.  648.201.
* * * * *
0
3. In Sec.  648.14:
0
a. Revise paragraph (r)(1)(ii)(B);
0
b. Add paragraph (r)(1)(iv)(F); and
0
c. Revise paragraph (r)(1)(vii)(A).
    The revisions and addition read as follows:


Sec.  648.14   Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (ii) * * *
    (B) Attempt or do any of the following: Fish for, possess, 
transfer, receive, land, or sell, more than the possession limits 
specified at Sec.  648.201(a) from a management area subject to a 
possession limit adjustment or fishery closure, or from a river herring 
and shad catch cap closure area that has been closed to specified gear 
pursuant to Sec.  648.201(a)(4)(ii), if the vessel has been issued and 
holds a valid herring permit.
* * * * *
    (iv) * * *
    (F) Purchase, receive, possess, have custody or control of, sell, 
barter, trade or transfer, or attempt to purchase, receive, possess, 
have custody or control of, sell, barter, trade or transfer, more than 
2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) of herring from a 
management area subject to a possession limit for Atlantic herring 
pursuant to Sec.  648.201(a).
* * * * *
    (vii) * * *
    (A) Transit or be in an area subject to a possession limit 
adjustment or fishery closure pursuant to Sec.  648.201(a) with more 
than 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) of herring, unless 
such herring were caught in an area not subject to the 2,000 lb (907.2 
kg) or 40,000 lb (18,143.7 kg) limit specified in Sec.  648.201(a), all 
fishing gear is stowed and not available for immediate use as defined 
in Sec.  648.2, and the vessel is issued a permit appropriate to the 
amount of herring on board and the area where the herring was 
harvested.
* * * * *
0
4. In Sec.  648.201:
0
a. Revise the paragraphs (a)(1)(i) heading
0
b. Revise paragraphs (a)(1)(i)(A), (a)(1)(i)(B)(1) and (2), (a)(1)(ii), 
and (a)(2) and (3);
0
c. Revise paragraphs (a)(4)(ii), (b), (c), and (g)(1); and
0
d. Remove and reserve paragraph (g)(2).
    The revisions read as follows:


Sec.  648.201  AMs and harvest controls.

    (a) * * *
    (1) * * *
    (i) Possession Limit Adjustments--(A) Areas 1A and 1B Possession 
Limit Adjustment. If NMFS projects that catch from Area 1A or 1B will 
reach 92 percent of the annual sub-ACL allocated to Area 1A or Area 1B, 
before the end of the fishing year, or 92 percent of the Area 1A sub-
ACL allocated to the seasonal period as set forth in paragraph (d) of 
this section, beginning the date the catch is projected to reach 92 
percent of the sub-ACL, vessels may not attempt or do any of the 
following: Fish for, possess, transfer, receive, land, or sell more 
than 2,000 lb (907.2 kg) of Atlantic herring per trip in or from the 
applicable area, and from landing herring more than once per calendar 
day, except as provided in paragraphs (b) and (c) of this section. NMFS 
shall implement these restrictions in accordance with the APA.
    (B) * * *
    (1) Possession Limit Adjustment--Phase 1. If NMFS projects that 
catch from Area 2 or Area 3 will reach 90 percent of the annual sub-ACL 
allocated to Area 2 or Area 3 before the end of the fishing year, 
beginning the date the catch is projected to reach 90 percent of the 
applicable sub-ACL, vessels may not attempt or do any of the following: 
Fish for, possess, transfer, receive, land, or sell more than 40,000 lb 
(18,143.7 kg) of Atlantic herring per trip in or from the applicable 
area, and from landing herring more than once per calendar day, except 
as provided in paragraphs (b) and (c) of this section. NMFS shall 
implement these restrictions in accordance with the APA.
    (2) Possession Limit Adjustment--Phase 2. If NMFS projects that 
catch will reach 98 percent of the annual sub-ACL allocated to Area 2 
or Area 3 before the end of the fishing year, beginning the date the 
catch is projected to reach 98 percent of the sub-ACL, vessels may not 
attempt or do any of the following: Fish for, possess, transfer, 
receive, land, or sell more than 2,000 lb (907.2 kg) of Atlantic 
herring per trip in the applicable area, and from landing herring more 
than once per calendar day, except as provided in paragraphs (b) and 
(c) of this section. NMFS shall implement these restrictions in 
accordance with the APA.
    (ii) Herring fishery closure. If NMFS projects that catch will 
reach 95 percent of the ACL before the end of the fishing year, 
beginning the date the catch is projected to reach 95 percent of the 
ACL, vessels may not attempt or do any of the following: Fish for, 
possess, transfer, receive, land, or sell more than 2,000 lb (907.2 kg) 
of Atlantic herring per trip in all herring management areas, and from 
landing herring more than once per calendar day, except as provided in 
paragraphs (b) and (c) of this section. NMFS shall implement these 
restrictions in accordance with the APA.
    (2) When the Regional Administrator has determined that the GOM 
and/or GB incidental catch cap for haddock in Sec.  
648.90(a)(4)(iii)(D) has been caught, no vessel issued a Federal 
Atlantic herring permit and fishing with midwater trawl gear in the 
applicable Accountability Measure (AM) Area, i.e., the Herring GOM 
Haddock AM Area or Herring GB Haddock AM Area, as defined in Sec.  
648.86(a)(3)(ii)(A)(2) and (3), may fish for, possess, transfer, 
receive, land, or sell herring in excess of 2,000 lb (907.2 kg) per 
trip in or from the applicable AM Area, and from landing herring more 
than once per calendar day, unless all herring possessed and landed by 
a vessel were caught outside the applicable AM Area and the vessel's 
gear is not available for immediate use as defined in Sec.  648.2 while 
transiting the applicable AM Area. Upon this determination, the haddock 
possession limit is reduced to 0 lb (0 kg) in the applicable AM area 
for a vessel issued a Federal Atlantic herring permit and fishing with 
midwater trawl gear or for a vessel issued a Category A or B Herring 
Permit fishing on a declared herring trip, regardless of area fished or 
gear used, in the applicable AM area, unless the vessel also possesses 
a Northeast multispecies permit and is operating on a declared 
(consistent with Sec.  648.10(g)) Northeast multispecies trip.
    (3) ACL and sub-ACL overage deductions. (i) If NMFS determines that 
total catch exceeded an Atlantic herring sub-ACL by 10 percent or less 
and the ACL was not exceeded in a given fishing year, then NMFS shall 
not deduct any amount of the overage from the applicable sub-ACL or ACL 
in the fishing year following total catch determination.
    (ii) If NMFS determines that total catch exceeded an Atlantic 
herring sub-ACL by greater than 10 percent and the ACL was not exceeded 
in a given fishing year, then NMFS shall subtract the amount of the 
overage above 10 percent from the ACL and applicable sub-ACL in the 
fishing year following total catch determination. For example, if catch 
exceeded the Area 1A sub-ACL by 15 percent in Year 1 and the ACL was 
not exceeded, the amount equal to the 5 percent overage would be 
deducted from the ACL and Area 1A sub-ACL in Year 3.

[[Page 11685]]

    (iii) If NMFS determines that total catch exceeded an Atlantic 
herring sub-ACL by any amount and the ACL was also exceeded in a given 
fishing year, then NMFS shall subtract the full amount of the sub-ACL 
overage from the applicable sub-ACL, and the full amount of the ACL 
overage from the ACL, in the fishing year following total catch 
determination. For example, if catch exceeded the Area 1A sub-ACL by 15 
percent and the ACL by 5 percent in Year 1, the amount equal to the 15-
percent overage would be deducted from the Area 1A sub-ACL and the 
amount equal to the 5-percent overage would be deducted from the ACL in 
Year 3.
    (iv) If NMFS determines that total catch exceeded the Atlantic 
herring ACL and no herring sub-ACLs were exceeded in a given fishing 
year, then NMFS shall subtract the full amount of the overage from the 
ACL in the fishing year following total catch determination. For 
example, if catch exceeded the herring ACL by 2 percent in Year 1, the 
amount equal to the 2-percent overage would be deducted from the ACL in 
Year 3, and no sub-ACLs would be reduced.
    (v) NMFS shall make overage determinations and implement any 
changes to ACLs or sub-ACLs, through notification in the Federal 
Register, and if possible, prior to the start of the fishing year 
during which the reduction would occur.
    (4) * * *
    (ii) Beginning on the date that NMFS projects that river herring 
and shad catch will reach 95 percent of a catch cap for specified gear 
applicable to an area specified in Sec.  648.200(f)(7) for the 
remainder of the fishing year, vessels may not attempt or do any of the 
following: Fish for, possess, transfer, receive, land, or sell more 
than 2,000 lb (907.2 kg) of Atlantic herring per trip using the 
applicable gear in the applicable catch cap closure area, specified in 
Sec.  648.200(f)(8), and from landing herring more than once per 
calendar day, except as provided in paragraphs (b) and (c) of this 
section. NMFS shall implement these restrictions in accordance with the 
APA.
    (b) A vessel may transit an area that is limited to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section with greater than 2,000 lb (907.2 kg) or 
greater than 40,000 lb (18,143.7 kg) of herring on board, provided such 
herring were caught in an area or areas not subject to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section, and that all fishing gear is stowed and 
not available for immediate use as defined in Sec.  648.2, and provided 
the vessel is issued a vessel permit appropriate to the amount of 
herring on board and the area where the herring was harvested.
    (c) A vessel may land an area that is limited to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section with greater than 2,000 lb (907.2 kg) or 
greater than 40,000 lb (18,143.7 kg) of herring on board, provided such 
herring were caught in an area or areas not subject to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section, and that all fishing gear is stowed and 
not available for immediate use as defined in Sec.  648.2, and provided 
the vessel is issued a vessel permit appropriate to the amount of 
herring on board and the area where the herring was harvested.
* * * * *
    (g) * * *
    (1) Subject to the conditions described in this paragraph (g), 
unharvested catch in a herring management area in a fishing year (up to 
10 percent of that area's sub-ACL) shall be carried over and added to 
the sub-ACL for that herring management area for the fishing year 
following the year when total catch is determined. For example, NMFS 
will determine total catch from Year 1 during Year 2, and will add 
carryover to the applicable sub-ACL(s) in Year 3. All such carryover 
shall be based on the herring management area's initial sub-ACL 
allocation for Year 1, not the sub-ACL for Year 1 as increased by 
carryover or decreased by an overage deduction, as specified in 
paragraph (a)(3) of this section. All herring caught from a herring 
management area shall count against that area's sub-ACL, as increased 
by carryover. For example, if 100 mt of herring is added as carryover 
from Year 1 to a 5,000 mt sub-ACL in Year 3, catch in that management 
area would be tracked against a total sub-ACL of 5,100 mt. NMFS shall 
add sub-ACL carryover only if catch does not exceed the Year 1 ACL, 
specified consistent with Sec.  648.200(b)(3). The ACL, consistent with 
Sec.  648.200(b)(3), shall not be increased by carryover specified in 
this paragraph (g).
* * * * *
[FR Doc. 2022-04294 Filed 3-1-22; 8:45 am]
BILLING CODE 3510-22-P