Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 46, 42663-42673 [2011-17895]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 138 (Tuesday, July 19, 2011)]
[Proposed Rules]
[Pages 42663-42673]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17895]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket: 110627355-1354-01]
RIN 0648-BB08


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Framework Adjustment 46

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Framework 
Adjustment (FW) 46 to the NE Multispecies Fishery Management Plan 
(FMP). FW 46 was developed and submitted to NMFS for approval by the 
New England Fishery Management Council (Council) to address haddock 
catch in the Atlantic herring fishery. The proposed rule would increase 
the haddock incidental catch cap allocated to the Atlantic midwater 
trawl herring fishery to 1 percent of the Georges Bank (GB) haddock 
Acceptable Biological Catch (ABC) and to 1 percent of the Gulf of Maine 
(GOM) haddock ABC. In addition, this action would modify the cap 
accountability measures (AMs) such that, upon attainment of the cap, 
the midwater trawl herring fleet could not catch or land herring in 
excess of the incidental catch limit (2,000 lb (907.2 kg)) in or from 
the appropriate haddock stock area. This action is intended to allow 
the herring fishery to fully utilize available herring quota, while 
providing incentives for the midwater trawl fishery to minimize haddock 
catch.

DATES: Comments must be received by August 3, 2011.

ADDRESSES: You may submit comments, identified by 0648-BB08, by any of 
the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: https://www.regulations.gov.
     Fax: (978) 281-9135, Attn: Melissa Vasquez.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Comments on the Proposed Rule for NE 
Multispecies Framework Adjustment 46.''
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter N/A in the required fields, if you wish to 
remain anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Copies of FW 46, its Regulatory Impact Review (RIR), a draft of the 
environmental assessment (EA) prepared for this action, and the Initial 
Regulatory Flexibility Analysis (IRFA) prepared by the Council are 
available from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The 
IRFA assessing the impacts of the proposed measures on small entities 
and describing steps taken to minimize any significant economic impact 
on such entities is summarized in the Classification section of this 
proposed rule. The FW 46 EA/RIR/IRFA are also accessible via the 
Internet at https://www.nefmc.org/nemulti/ or https://www.nero.noaa.gov. Written comments regarding the burden-hour estimates 
or other aspects of the collection-of-information requirements 
contained in this rule should be submitted to the Regional 
Administrator at the address above and to the Office of Management and 
Budget (OMB) by e-mail at OIRA_Submission@omb.eop.gov, or fax to (202) 
395-7285.

FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Policy 
Analyst, phone: 978-281-9166, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The Council initiated FW 46 to revise the haddock incidental catch 
cap for the Atlantic herring fishery to allow for the full utilization 
of available herring quota, while providing incentives for the midwater 
trawl herring fishery to minimize haddock catch. FW 43 to the NE 
Multispecies FMP (71 FR 46871; August 15, 2006) established an exempted 
fishery in 2006 to allow for the incidental catch of NE multispecies

[[Page 42664]]

by the Atlantic herring fishery. Prior to FW 43, midwater trawl gear 
was considered exempted gear (gear not capable of catching NE 
multispecies). FW 43 adopted a cap on the amount of haddock that could 
be caught by the directed herring fishery of 0.2 percent of what was 
the combined Target Total Allowable Catch (TTAC) for GOM and GB 
haddock, at the time. The cap applied to all Category 1 Atlantic 
herring permits until Amendment 1 to the Atlantic Herring FMP (72 FR 
11252; March 12, 2007) implemented a limited access program for the 
herring fishery in 2007, which clarified that the cap applied to 
vessels issued limited access Category A (All Areas) and B (Areas 2 and 
3) herring permits. Amendment 16 to the FMP (75 FR 18262; April 9, 
2010), which implemented Annual Catch Limits (ACL) and AMs in the FMP 
in 2010, defined the haddock catch cap as a separate sub-ACL (0.2 
percent of the combined GOM and GB haddock ABCs) with its own AM, set 
biennially through the NE multispecies specification process and 
according to the NE multispecies fishing year (FY; May 1-April 30). 
Once the Regional Administrator has determined that the combined 
haddock cap has been reached, any vessel issued an Atlantic herring 
permit or fishing in the Federal portion of the GOM/GB Herring 
Exemption Area (defined at Sec.  648.86(a)(3)(ii)(A)(1)) is prohibited 
from possessing more than an incidental trip limit of herring (2,000 lb 
(907 kg)) in this area. Under current regulations, only observed or 
reported haddock catch (from NMFS observers, law enforcement officials, 
dealer reports, and vessel reports) from vessels that have a limited 
access Category A and/or B Atlantic herring permit are applied to the 
cap.
    Increased abundance of haddock on GB since the implementation of FW 
43 has resulted in increased interactions of the herring fishery with 
haddock, particularly vessels fishing with midwater trawls. In FY 2010, 
a large portion of the incidental haddock catch cap was caught by early 
fall (81 percent), and the herring midwater trawl fleet voluntarily 
moved away from Atlantic Herring Management Area 3 (GB) to avoid 
fishing in areas with high haddock bycatch to help avert any potential 
for a closure of the directed herring fishery. As a result, some (59 
percent) of the Atlantic Herring Management Area 3 TAC was left 
uncaught for the remainder of the FY.
    In January 2011, the Council initiated FW 46 to address industry 
concerns that the haddock catch cap was becoming too constraining on 
the herring fishery, particularly given the increased biomass of 
haddock on GB and the fact that the commercial groundfish fishery 
remains incapable of harvesting its own sub-ACL for these stocks. An 
early closure of the directed herring fishery could result in negative 
impacts to herring fishery participants and to the supply of herring 
bait to the lobster fishery. The Council was also concerned that 
reduced effort in Atlantic Herring Management Area 3 could lead to 
additional effort in Atlantic Herring Management Area 1 (GOM) in the 
summer and fall, putting additional fishing pressure on this component 
of the herring resource, and raising concerns about increased midwater 
trawl activity inshore. To address these concerns, FW 46 was initiated 
with the following goals: To maximize the chance for GB (Area 3) 
herring TAC to be caught; to provide incentives to fish offshore; to 
provide incentives for fish in a manner, at times, and in areas when 
and where haddock bycatch is none to low; and to reduce the impact of a 
haddock cap on the entire herring fishery.

Proposed Measures

    The measures proposed by FW 46 are described below. The proposed 
regulations implementing measures in FW 46 were deemed by the Council 
to be consistent with FW 46, and necessary to implement such provisions 
pursuant to section 303(c) of the Magnuson-Stevens Act through a June 
17, 2011, letter from the Council Chairman to the Regional 
Administrator.

Incidental Catch Cap for Midwater Trawl Vessels

    FW 46 proposes to revise the current overall haddock incidental 
catch cap of 0.2 percent, such that vessels with a Federal Atlantic 
herring permit of any category using midwater trawl gear (both single 
and paired midwater trawl vessels) would be subject to a stock-specific 
cap on haddock catch that is equal to 1 percent of the GOM haddock ABC 
and 1 percent of the GB haddock ABC. The current combined incidental 
catch cap for the GOM and GB haddock stock areas would be divided into 
two separate caps to better account for differences in these two stocks 
and to eliminate the possibility that catches of one stock could 
trigger the closure of both stock areas. These incidental haddock catch 
caps would be allocated according to the procedures established by 
Amendment 16 for the setting of ACLs and sub-ACLs for various 
components of the NE multispecies fishery, and the cap calculation 
method revised by FW 44 to the FMP (see Appendix III to FW 44, 
available on the Council's Web site). Thus, 1 percent of the GOM 
haddock ABC would be deducted from the sub-ABC allocated to commercial 
fisheries (which includes the Federal commercial groundfish fishery, 
state waters fishery, the Atlantic herring fishery, and the other 
commercial sub-component) and allocated to the herring midwater trawl 
fishery, after a further reduction for management uncertainty, as a GOM 
haddock sub-ACL. Similarly, 1 percent of the GB haddock ABC available 
to U.S. fishermen would be allocated to the herring midwater trawl 
fishery, after a further reduction for management uncertainty, as a GB 
haddock sub-ACL. This 1-percent allocation for each of the two haddock 
stocks was determined to be sufficient to allow the prosecution of the 
herring midwater trawl fishery without adversely affecting groundfish. 
Analysis in FW 46 suggests that this proposed value would be robust to 
changes in GB haddock stock size, such that a future action would not 
be needed to adjust the cap if GB haddock stock size declines. 
Estimates of total haddock catch by the herring midwater trawl fishery 
in recent years have been well below 1 percent of the TTAC or ACL, 
indicating that the increased haddock catch cap would likely, at least 
in the short term, allow the full GB herring TAC to be utilized.
    Because FW 46 would increase the portion of the haddock sub-ABCs 
allocated to the herring midwater trawl fishery to 1 percent of each 
stock (from 0.2 percent of both stocks combined), the ACE available to 
sectors would decline, as would the amount of the ACL available to 
common pool groundfish fishing vessels. The decline is slightly greater 
than the change in the herring fishery allocation because of the way 
the incidental catch caps for each stock would be calculated. In the 
case of GB haddock, the commercial groundfish sub-ACL would decline by 
0.84 percent, while for GOM haddock the decline would be 1.1 percent. 
However, because FW 46 proposes small allocations to the herring 
fishery, and haddock catches by the commercial groundfish fisheries 
remain well below the sub-ACL for these stocks, the sub-ACL reduction 
is expected to have no measurable economic impacts to groundfish 
vessels.
    Unlike the current provision where haddock catches by all limited 
access Category A and B vessels fishing in Atlantic Herring Management 
Areas 1A, 1B, 2, and 3 (GOM, GB, and Southern New England (SNE)) count 
against the cap, FW 46 proposes that only the haddock catches from 
vessels issued a Federal Atlantic herring permit and

[[Page 42665]]

fishing with midwater trawl gear in Atlantic Herring Management Areas 
1A, 1B, and/or 3 (GOM and GB), would apply against the incidental 
haddock catch caps. This action would limit the cap and its 
restrictions to midwater trawl vessels fishing in this reduced area 
(GOM and GB, but not SNE), because analysis prepared in the development 
of FW 46 showed that haddock bycatch is largely an issue for these 
vessels in these areas. Thus, limiting the cap to herring midwater 
trawl vessels would address haddock catch issues, while eliminating 
unnecessary restrictions on other segments of the herring fishery that 
have historically not had much interaction with haddock (i.e., vessels 
fishing with purse seine, otter trawl, pots, or other gear).
    Under FW 46, haddock catch reported by observers on observed 
herring trips using midwater trawl gear in Herring Management Areas 1A, 
1B, and/or 3 would be extrapolated to estimate total haddock catch by 
the herring midwater trawl fleet in these herring areas, for purposes 
of monitoring the attainment of each stock-specific cap. The reliance 
on only haddock catches derived from reports from dealers, vessels, and 
law enforcement officials for monitoring the attainment of the cap, as 
currently required, would be eliminated. The method of accounting for 
haddock catch proposed under FW 46 would thus be less sensitive to 
changes in observer coverage than the current monitoring method, and 
would mean that any AMs triggered would be based on estimates of total 
catch for the entire midwater trawl fleet, rather than only documented 
catch for a portion of the fleet. Thus, extrapolating observed haddock 
catches in this way would better account for total haddock catch by the 
herring fishery.
    FW 46 proposes that NMFS would develop the extrapolation 
methodology and post it on the Northeast Regional Office Web site (see 
ADDRESSES), and that NMFS would monitor and post catches of haddock by 
the herring fishery at least monthly on its Web site. If the proposed 
measures are approved, NMFS intends to apply the cumulative methodology 
currently in use to extrapolate catches of butterfish in the Loligo 
squid fishery and to estimate discards by sector vessels in the 
groundfish fishery, to extrapolate haddock catches by the herring 
midwater trawl fishery. This method derives a ratio of the kept catch 
(or discards) of the species in question to the total weight of all 
species kept on observed trips (total kept), based on all observed 
trips as of a certain date (cumulative sums of landings or discards and 
total kept of all species). The ratio is then expanded to a total catch 
estimate by applying the ratio to the total kept of all species from 
all trips by the applicable component of the fishery. For example, an 
observed haddock catch rate would be derived from the ratio of all 
haddock catch to all species kept on observed herring midwater trawl 
trips in Herring Management Areas 1A, 1B, and 3, and applied to the 
total weight of all species kept from all midwater trawl trips in these 
same areas, to determine an estimate of total haddock catch by the 
herring GOM and GB midwater trawl fleet. Further details of the 
extrapolation methodology to be used would be published on the 
Northeast Regional Office Web site when finalized.
    As noted in FW 46, if approved, the proposed measures would be 
implemented in-season during the 2011 Northeast multispecies (May 1, 
2011-April 30, 2012) and herring (January 1, 2011-December 31, 2011) 
fishing years. Given that the haddock cap for the midwater trawl 
herring fishery is monitored based on the groundfish fishing year, upon 
implementation, NMFS would use observer data and other available data 
from applicable herring trips to extrapolate haddock catches by the 
herring fishery since the start of FY 2011 (beginning May 1, 2011) and 
apply it to the increased stock-specific haddock caps. Retroactively 
applying the measures in this way would ensure the consistent 
monitoring of the haddock caps and treatment of haddock catches by the 
midwater trawl herring fishery throughout FY 2011. As a result, the FY 
2011 GOM and GB haddock sub-ACLs for the commercial groundfish fishery 
(sectors and common pool) would be adjusted in-season, consistent with 
the proposed modification to the allocation of these stocks' sub-ABCs.
    The current regulations require vessels with a Category A and/or B 
Atlantic herring permit to land all haddock brought on deck or pumped 
into the hold, for the purpose of monitoring this catch while 
prohibiting the sale of such fish. Up to 100 lb (45 kg) total of other 
regulated NE multispecies (Sec.  648.86(k)) may also be landed per 
trip, but may not be sold for human consumption. These possession 
restrictions for Category A and B herring vessels would not be 
eliminated by FW 46, so Category A and B herring vessels on a declared 
herring trip would still be required to land all haddock, regardless of 
gear used or area fished. Maintaining this landing requirement for 
Category A and B vessels facilitates the monitoring of the ``other sub-
components'' portion of the GOM and GB haddock ACLs, to which such 
haddock catches would apply. In addition, FW 46 proposes to expand the 
possession restrictions to allow a vessel issued any Federal Atlantic 
herring permit but fishing any part of a trip with midwater trawl gear 
in Herring Management Areas 1A, 1B, or 3, to possess and land haddock 
in addition to 100 lb (45 kg) of other NE multispecies, consistent with 
the revised scope of the cap. As with the current requirements, such 
vessels would be required to land all haddock, but would be prohibited 
from selling it for human consumption. Additionally, NMFS is revising 
the regulations at Sec.  648.86(k) to clarify that the 100 lb (45 kg) 
NE multispecies possession limit is meant to apply to NE multispecies 
other than haddock.
    Currently, all vessels issued an Atlantic herring permit are 
prohibited from possessing or landing herring in excess of the 
incidental limit in the entire GOM/GB Herring Exemption Area, once the 
combined GOM/GB haddock cap is reached. FW 46 would revise this broad 
AM by establishing a stock-specific AM area (the Herring GOM Haddock AM 
Area and the Herring GB Haddock AM Area) upon attainment of the 
respective incidental haddock catch caps and by making the AM apply to 
only herring vessels using midwater trawl gear in the GOM and GB. FW 46 
proposes that when the Regional Administrator has determined that the 
haddock incidental catch cap for a specific haddock stock has been 
caught, all vessels issued a herring permit and using midwater trawl 
gear would be prohibited from fishing for, possessing, or landing 
herring in excess of 2,000 lb (907.2 kg) per trip in or from the 
applicable AM Area (see Tables 1 and 2). Additionally, the haddock 
possession/landing limit for the applicable AM Area would be reduced to 
0 lb (0 kg) for herring midwater trawl vessels and all Category A and B 
vessels. For example, if the GOM haddock catch cap was reached, the 
herring possession limit would be reduced to incidental catch levels 
(2,000 lb (907 kg)) in the Herring GOM Haddock AM Area (see Table 1) 
for any vessel issued a herring permit and fishing any part of a trip 
with midwater trawl gear. In addition, midwater trawl vessels and 
Category A and B vessels would not be able to possess/land any haddock, 
but would still be able to land up to 100 lb (45 kg) of other NE 
multispecies, from the applicable AM area. However, in this example, 
such midwater trawl vessels would still be

[[Page 42666]]

able to retain herring, up to the possession/landing limits, if any, 
appropriate to their herring permit category, in or from areas of 1A, 
1B, or 3 that do not overlap with the Herring GOM Haddock AM Area. 
Herring vessels that fished both inside and outside of an AM Area on a 
given trip would be required to comply with the most restrictive 
measures. The intent of this measure is to make the haddock catch caps 
less constraining on the herring fishery by accounting for differences 
between the haddock stocks, and by limiting the AMs to the herring 
midwater trawl fleet, which has historically been primarily responsible 
for haddock catches in the herring fishery. The reduced haddock 
possession/landing limit would not apply to herring vessels that also 
hold a NE multispecies permit when they are on a declared NE 
multispecies trip.

              Table 1--Proposed Herring GOM Haddock AM Area
------------------------------------------------------------------------
              Point                   N. latitude        W. longitude
------------------------------------------------------------------------
HGA1............................  (\1\)               69[deg]20'
HGA.............................  43[deg]40'          69[deg]20'
HGA3............................  43[deg]40'          69[deg]00'
HGA4............................  43[deg]20'          69[deg]00'
HGA5............................  43[deg]20'          67[deg]40'
HGA6............................  (\2\)               67[deg]40'
HGA7............................  42[deg]53.1'        67[deg]44.4'
HGA8............................  (\2\)               67[deg]40'
HGA9............................  42[deg]20'          67[deg]40'
HGA10...........................  42[deg]20'          70[deg]00'
HGA11...........................  (\3\)               70[deg]00'
------------------------------------------------------------------------
\1\ The intersection of the Maine coastline and 69[deg]20' W. long.
\2\ The intersection of the U.S./Canada maritime boundary and 67[deg]40'
  W. long.
\3\ The intersection of the north-facing shoreline of Cape Cod, MA, and
  70[deg]00' W. long.


              Table 2--Proposed Herring GB Haddock AM Area
------------------------------------------------------------------------
              Point                   N. latitude        W. longitude
------------------------------------------------------------------------
HBA1............................  42[deg]20'          70[deg]00'
HBA2............................  42[deg]20'          (\1\)
HBA3............................  40[deg]30'          (\1\)
HBA4............................  40[deg]30'          66[deg]40'
HBA5............................  39[deg]50'          66[deg]40'
HBA6............................  39[deg]50'          68[deg]50'
HBA7............................  (\2\)               68[deg]50'
HBA8............................  41[deg]00'          (\3\)
HBA9............................  41[deg]00'          69[deg]30'
HBA10...........................  41[deg]10'          69[deg]30'
HBA11...........................  41[deg]10'          69[deg]50'
HBA12...........................  41[deg]20'          69[deg]50'
HBA13...........................  41[deg]20'          (\4\)
HBA14...........................  (\5\)               70[deg]00'
HBA15...........................  (\6\)               70[deg]00'
HBA16...........................  (\7\)               70[deg]00'
------------------------------------------------------------------------
\1\ The intersection of the U.S./Canada maritime boundary and 42[deg]20'
  N. lat.
\2\ The intersection of the boundary of Closed Area I and 68[deg]50' W.
  long.
\3\ The intersection of the boundary of Closed Area I and 41[deg]00' N.
  lat.
\4\ The intersection of the east-facing shoreline of Nantucket, MA, and
  41[deg]20' N. lat.
\5\ The intersection of the north-facing shoreline of Nantucket, MA, and
  70[deg]00' W. long.
\6\ The intersection of the south-facing shoreline of Cape Cod, MA, and
  70[deg]00' W. long.
\7\ The intersection of the north-facing shoreline of Cape Cod, MA, and
  70[deg]00' W. long.

    FW 46 also proposes an overage reduction as an additional AM, 
should a haddock incidental catch cap be exceeded by the herring 
midwater trawl fishery in a given fishing year. Once the total catch of 
haddock by herring midwater trawl vessels for a fishing year is 
determined, any overage of the herring midwater trawl fishery GOM or GB 
haddock sub-ACLs would result in reduction of the corresponding sub-ACL 
in the following fishing year. For example, if final accounting of the 
FY 2011 total haddock midwater trawl catch in the GOM haddock stock 
area indicated that the GOM haddock incidental catch cap had been 
exceeded by 5 mt, the FY 2012 GOM haddock sub-ACL for the herring 
midwater trawl fishery would be reduced by 5 mt to account for the 
overage that occurred during FY 2011. FW 46 proposes that any overage 
reductions to the midwater trawl haddock sub-ACLs would be announced by 
NMFS, consistent with APA requirements, in the Federal Register prior 
to the start of the groundfish fishing year (May 1).
    In order to facilitate the extrapolation of observed haddock catch 
to unobserved herring midwater trawl trips, FW 46 proposes that all 
vessels issued a herring permit and fishing with midwater trawl gear in 
Herring Management Areas 1A, 1B, or 3, report gear and total kept catch 
by modified haddock stock area (portions of the haddock stock areas 
that overlap with these herring areas), via whatever ACL monitoring 
method is developed for the herring fishery. Based on this, NMFS 
proposes to require vessels with limited access herring permits 
(Category A, B, and C permits) using midwater trawl gear to report 
total kept catch by modified haddock stock area through daily Vessel 
Monitoring System (VMS) catch reports, as is currently proposed through 
a regulatory amendment to the Atlantic Herring FMP. A proposed rule 
published June 15, 2011 (76 FR 34947), would require limited access 
herring vessels (including vessels with herring limited access 
incidental permits) to submit daily catch reports through VMS to report 
herring catch by herring management area, in order to enable accurate 
and timely monitoring of herring ACLs and Area TACs. NMFS also proposes 
to require limited access herring vessels fishing with midwater trawl 
gear in Herring Management Areas 1A, 1B, or 3 to report total weight 
kept of all species (including herring, mackerel, groundfish, and any 
other fish kept) by modified haddock stock area in these daily reports. 
Limited access herring midwater trawl vessels would not be required to 
report gear used through VMS catch reports at this time, as NMFS has 
determined that it would not be necessary for the timely monitoring of 
the proposed haddock incidental catch caps and, therefore, would be an 
unnecessary reporting burden. Although the proposed reporting rule for 
the herring fishery proposes to monitor catch by open access incidental 
herring permits (Category D) through weekly Interactive Voice Response 
(IVR) reports, it would also increase the frequency of VTR submissions 
by all herring permitted vessels to require that they be submitted 
weekly. This action proposes no additional reporting requirements for 
open access herring permit holders at this time, given that weekly VTR 
submissions would be sufficient to monitor this small component of the 
herring fishery. However, should the proposed herring fishery reporting 
rule be revised or not be implemented as a final rule, limited access 
and open access herring midwater trawl vessels would be monitored via 
the current monitoring method in place for the herring fishery: Weekly 
IVR reports by limited access vessels, weekly IVR reports by open 
access vessels that catch 2,000 lb (907 kg) or more of Atlantic herring 
on a trip, and VTRs submitted monthly.
    The Council has initiated development of Amendment 5 to the 
Atlantic Herring FMP, which considers several alternatives that address 
interactions between the herring fishery and the groundfish fishery, 
and others that are targeted at improving catch monitoring. If 
approved, Amendment 5 would likely modify monitoring and reporting 
requirements for the herring fishery, including those that NMFS 
proposes to use to monitor the proposed haddock incidental catch caps. 
Therefore, the Regional Administrator reserves the right to revise 
reporting requirements implemented through this proposed rule, if it is 
determined that fishing behavior has, or may be expected to change, and 
revisions are necessary to allow for the effective monitoring of the 
proposed haddock incidental catch caps.
    FW 43 established a requirement that a vessel issued a Category A 
or B herring permit must notify NMFS of its intent to take a trip, at 
least 72 hr prior to

[[Page 42667]]

beginning a declared herring trip fishing with midwater trawl or purse 
seine gear, into Herring Management Areas 1A, 1B, 2, and/or 3, to 
facilitate the deployment of observers. A final rule published November 
2, 2009 (74 FR 56562) also added the requirement that such vessels 
declare whether the vessel intends to fish any part of a trip in NE 
multispecies Closed Area I (CA I). FW 46 would not eliminate this 
requirement for Category A and B vessels, but proposes to expand the 
scope of this requirement to be account for the modified scope of the 
haddock incidental catch caps. Thus, Category A and B vessels, 
intending to use midwater trawl or purse seine gear on a declared 
herring trip, and any vessel issued a Category C and/or D herring 
permit and intending to fish or fishing any part of a trip with 
midwater trawl gear in Herring Management Areas 1A, 1B, or 3, would be 
required to notify the NMFS Northeast Fishery Observer Program (NEFOP) 
at least 72 hr prior to beginning a trip, including whether or not it 
intends to fish any part of a trip in CA 1. Expanding this requirement 
would facilitate the consistent monitoring and collection of data from 
all midwater trawl vessels subject to the caps.
    Under current regulations, a vessel issued a Category A or B 
herring permit and using midwater trawl or purse seine gear on a 
declared herring trip is required to notify the NMFS Office of Law 
Enforcement through VMS of the time and place of offloading at least 6 
hr prior to crossing the VMS demarcation line, or at least 6 hr prior 
to landing, if fishing inside the VMS demarcation line. FW 43 
instituted this requirement to facilitate the enforcement of the 
haddock incidental catch cap, by allowing enforcement officials 
sufficient notice of landing to enable them to observe offloading or 
sample catch. FW 46 proposes to expand this pre-landing hail to all 
vessels issued a herring permit (limited access and open access) that 
fished any part of a trip with midwater trawl gear in Herring 
Management Areas 1A, 1B, and/or 3, to be consistent with the expanded 
scope of the haddock incidental catch cap and possession restrictions. 
Based on this, NMFS proposes that vessels issued a Category A or B 
permit, and on a declared herring trip fishing with midwater trawl or 
purse seine gear, and vessels issued a Category C that fish any part of 
a trip with midwater trawl gear in Herring Management Areas 1A, 1B, 
and/or 3, would be required to submit a pre-landing hail via VMS. NMFS 
does not propose to require open access herring permit holders 
(Category D) to submit pre-landing hails at this time, because this 
small portion of the herring fishery accounts for very little of the 
Atlantic herring landings (0.5 percent in FY 2010) and rarely uses 
midwater trawl gear in applicable Areas (Category A vessels accounted 
for all landings by midwater trawl gear in FY 2008-2010). Therefore, 
NMFS believes that requiring pre-landing hails of Category D vessels 
would be an unnecessary reporting burden at this time. Federally 
permitted herring dealers and processors (including at-sea processors) 
that cull or separate out non-herring catch in the course of normal 
operations are currently required to separate out and retain all 
haddock offloaded from vessels that have a Category A or B herring 
permit, regardless of gear used. In addition, such haddock may not be 
sold for any purpose and must be retained for at least 12 hours on land 
to allow inspection by enforcement officials. Under FW 46, this 
requirement would be expanded so that any Federally permitted herring 
dealer or processor that culls or separates catch would be required to 
separate out and retain for the 12-hr period all haddock offloaded from 
vessels issued any Federal herring permit that fished in Herring Areas 
1A, 1B, and/or 3 with midwater trawl gear and vessels issued a Category 
A and/or B permit, regardless of gear used or area fished. This 
requirement would facilitate enforcement of the prohibition on sale of 
such culled haddock. The final rule revising monitoring requirements 
for midwater trawl vessels fishing in CA I (74 FR 56562; November 2, 
2009), prohibited vessels issued a Category A or B herring permit from 
fishing in CA I with midwater trawl gear without an observer. This 
measure was implemented to ensure 100-percent observer coverage of 
midwater trawl vessels fishing in CA I. That same rule also implemented 
the requirement that no vessel issued a Category A or B herring permit 
and fishing with midwater trawl gear in CA I may release fish from the 
codend of the net, transfer fish to another vessel that is not carrying 
a NMFS-approved observer, or otherwise discard fish at sea, unless the 
fish has first been brought aboard the vessel and made available for 
sampling and inspection by the observer. However, under specific 
circumstances, fish that have not been pumped aboard the vessel may be 
released from the codend without being sampled if the vessel operator 
finds that: Pumping the catch could compromise the safety of the 
vessel; mechanical failure precludes bringing some or all of a catch 
aboard the vessel; or spiny dogfish have clogged the pump and 
consequently prevent pumping of the rest of the catch. If a net is 
released for any of these three reasons, the vessel operator must 
complete and sign a CA I Midwater Trawl Released Codend Affidavit 
detailing where, when, and why the net was released as well as a good-
faith estimated of both the total weight of fish caught in that tow and 
the weight of the fish released (if the tow had been partially pumped). 
The completed affidavit must be submitted to NMFS within 48 hr of the 
completion of the trip, and the vessels must exit CA I for the 
remainder of the trip.
    The CA I restrictions for midwater trawl vessels are currently 
applicable to Category A and B herring permit holders because these are 
the permitted vessels subject to the haddock incidental catch cap and 
possession restrictions established under FW 43. However, given that FW 
46 has revised the scope of the incidental catch cap and expanded the 
NE multispecies possession restrictions to vessels that hold any 
Federal herring permit category that use midwater trawl gear, this rule 
proposes that the CA I requirements be revised to apply to any vessel 
issued a herring permit that fishes with midwater trawl gear in CA I. 
This measure is necessary to maintain consistency and reduce 
complication in the regulations regarding the monitoring of haddock 
bycatch for the incidental catch cap inside and outside CA I.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the NE Multispecies FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with Federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    An IRFA was prepared for this proposed rule, as required by section 
603 of the Regulatory Flexibility Act (RFA). The IRFA, which includes 
this section of the preamble to this rule and analyses contained in FW 
46 and its accompanying EA/RIR/IRFA, describes the economic impact this 
proposed rule, if adopted, would have on small

[[Page 42668]]

entities. A description of the action, why it is being considered, and 
the legal basis for this action are contained at the beginning of this 
section in the preamble and in the SUMMARY section of the preamble.

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

    Regulated entities include businesses owning vessels engaged in the 
Atlantic herring and NE multispecies fisheries. These measures would 
affect regulated entities engaged in commercial fishing for herring. 
Because the proposed measures reduce the available GOM and GB haddock 
ABC for the groundfish fishery, vessels permitted in this fishery are 
potentially regulated by this action. However, because only 
approximately 17 percent of the haddock GOM and GB ABCs was landed in 
FY 2010 (and similar under-capture of available quota is expected in FY 
2011-2012), it is not expected that NE multispecies permitted vessels 
would be affected by this action in the near-term. The size standard 
for commercial fishing entities (NAICS code 114111) is $4 million in 
sales. Although multiple vessels may be owned by a single owner, 
available tracking of ownership is not readily available to reliably 
ascertain affiliated entities. Therefore, for purposes of analysis, 
each permitted vessel is treated as a single entity. During calendar 
year 2010, 90 vessels were issued a limited access herring permit. In 
2008 and 2009, each year one vessel exceeded $4 million in gross sales, 
while in 2010 two vessels exceeded that number. In calendar year 2010 
there were 84 small commercial fishing entities that were both 
regulated and potentially affected by the proposed action.

Measures Proposed To Mitigate Adverse Economic Impacts of the Proposed 
Action

    The economic impacts of the proposed action on affected regulated 
small entities are positive. The proposed action would have no short-
term measurable economic impacts to vessels participating in the 
groundfish fishery, because it proposes small allocations of haddock to 
the herring fishery that would have no effect on current groundfish 
revenues, based on most recent fishing activities, and only minor 
effects on possible future revenues, as these small allocations are 
unlikely to constrain the groundfish fishery or allow the herring 
fishery to displace groundfish effort. The proposed action is likely to 
have a positive impact on vessels participating in the Atlantic herring 
fishery, as it greatly reduces the possibility that a haddock catch cap 
would result in AMs that restrict the fishery to incidental catch 
limits throughout a large portion of the GOM and GB. Based on observed 
levels of haddock bycatch in the herring fishery and recent reductions 
in herring fishing effort (through greatly reduced ACLs in 2010), a 1-
percent haddock catch cap is unlikely to be reached in the short-term, 
but provides a backstop and establishes a mechanism to estimate fleet-
wide bycatch on a real-time basis. The proposed action separates the 
GOM and GB haddock stocks and related catch, thereby reducing the 
overall impact of a fishery closure, if one were to occur. It also 
eliminates impacts on purse seine vessels by restricting the cap and 
the AM to midwater trawl vessels only. Because the proposed action 
makes it more likely that the haddock catch cap will not constrain 
herring fishing beyond levels anticipated in the Atlantic Herring FMP, 
this action will not result in a decline in revenue for the herring 
fishery and may increase fishing opportunities for the herring mid-
water trawl fleet for several months relative to baseline conditions. 
Opportunities to prosecute the offshore fishery (Area 3, GB) and fully 
utilize the herring optimum yield should be higher under the proposed 
action than under baseline conditions. The precise magnitude of the 
positive impact is uncertain, though the offshore areas (Areas 2 and 3) 
of the herring fishery generated approximately $17 million in gross 
herring revenues in calendar year 2009, and the revenues from fishing 
trips expected to be unconstrained due to the proposed action represent 
a relatively small fraction of that total.
    The proposed action and alternatives are described in detail in 
Framework 46, which includes an EA, RIR, and IRFA (see ADDRESSES).

Economic Impacts of Alternatives to the Proposed Action

    Two other alternatives to the proposed action were considered. The 
first represents a no action alternative that would maintain the 
haddock catch cap for the herring fishery at 0.2 percent of the 
combined GOM and GB haddock ABC, and thus would have no economic impact 
on regulated small entities compared to the status quo. The second 
proposed alternative would incorporate the catch of haddock in the 
Atlantic herring fishery into the sub-ACL for other sub-components of 
the haddock fisheries, with options for AMs that would have implemented 
the proposed action as a backstop. Therefore, the second alternative to 
the proposed action would have fundamentally identical economic impacts 
on regulated small entities as the proposed action. With respect to 
expected impacts on vessels participating in the NE multispecies 
fishery, similar to the proposed action, less than 20 percent of the GB 
haddock ACL is being harvested and small allocations to the herring 
fishery (in the case of the latter option, an unspecified amount, but 
less than 4 percent) would have no effect on current revenues and only 
minor effects on possible future revenues. In the GOM, there is not as 
much of the ACL that has not been caught but the differences between 
the alternatives are still minor. Concerns have been raised that the 
proposed action and the second alternative to the proposed action might 
result in more midwater trawl activity on GB, displacing groundfish 
fishing activity, but an initial analysis indicates this has not been 
the effect in previous years and that is not likely to change in the 
near future. With respect to the herring fishery, the second 
alternative to the proposed action would, similar to the proposed 
action, substantially reduce the risk that the directed herring fishery 
would be closed and increase the likelihood that the available herring 
yield will be harvested.
    During the development of FW 46, four other alternatives were 
considered, but ultimately rejected by the Council and the Groundfish 
Oversight Committee because they were difficult to implement and 
monitor, could not be implemented through a framework adjustment, and/
or did not meet the stated objectives of the framework. Detailed 
descriptions of all the alternatives considered are available in the FW 
46 EA (see ADDRESSES).

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    The proposed action contains a collection-of-information 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA). This requirement will be submitted to OMB for 
approval. The proposed action does not duplicate, overlap, or conflict 
with any other Federal rules.
    The proposed action would expand some reporting requirements 
implemented through FW 43 to monitor the current herring fishery 
haddock incidental catch cap, to include additional herring permit 
categories. Limited access herring permit holders fishing with midwater 
trawl gear in Herring Management Areas 1A, 1B, and/or 3 would be 
required to report total kept catch by haddock stock area via

[[Page 42669]]

daily VMS catch reports. The proposed Atlantic herring regulatory 
amendment has proposed daily VMS catch reporting by limited access 
herring vessels for quota monitoring purposes, and the burden to the 
public of those catch report submissions has been analyzed in that 
regulatory amendment (76 FR 34947; June 15, 2011). This action would 
modify that proposed report to add two additional fields and thereby 
increase the cost per submission for limited access vessels that fish 
with midwater trawl gear in the GOM or on GB. Based on historic 
participation in the herring midwater trawl fishery, this change is 
expect to increase the total annual burden to the public for herring 
VMS catch reporting by $160 to $2,482, or $26 per entity. This action 
would also expand the requirements for Category A and B vessels to 
notify the Northeast Fishery Observer by phone of their intent to take 
a trip, and to submit a pre-landing hail to enforcement via VMS, to 
additional permit categories when fishing with midwater trawl gear in 
the GOM or on GB. However, no Category C or D vessels have reported 
landing herring or mackerel using midwater trawl gear in the GOM or GB. 
Thus, based on historic participation in the herring midwater trawl 
fishery, this action would not be expected to change the reporting 
burden associated with these requirements. In addition, applying the 
requirement to submit a CA I Midwater Trawl Codend Release Affidavit to 
additional permit categories is not expected to change the reporting 
burden associated with this affidavit, based on historic participation 
in the CA I herring fishery.
    Public reporting burden for these requirements includes the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 11, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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

    2. In Sec.  648.10, add paragraph (l) to read as follows:


Sec.  648.10  VMS and DAS requirements for vessel owners/operators.

* * * * *
    (l) Area-specific reporting requirements for limited access 
Atlantic herring vessels fishing in Atlantic Herring Management Areas 
1A, 1B, and 3--(1) Reporting requirements for vessel operators. The 
owner or operator of any vessel issued a limited access herring permit 
that fishes any part of a tow with midwater trawl gear (including 
midwater pair-trawl gear) in Management Areas 1A, 1B, and/or 3, as 
defined at Sec.  648.200(f)(1) and (f)(3), must report the estimated 
total amount of all species retained (in pounds, landed weight) from 
each of the GOM and GB modified haddock stock areas as defined in 
paragraph (l)(2) of this section, via the required reporting method 
specified for Atlantic herring owners or operators at Sec.  
648.7(b)(2)(i), unless otherwise specified by Sec.  648.201.
    (2) GOM and GB Modified Haddock Stock Areas. For the sole purpose 
of the area-specific reporting requirements in paragraph (l)(2) of this 
section, the GOM and GB Modified Haddock Stock Areas are defined in 
paragraphs (l)(2)(i) and (l)(2)(ii) of this section. Copies of a map 
depicting these areas are available from the Regional Administrator 
upon request.
    (i) GOM Modified Haddock Stock Area. The GOM Modified Haddock Stock 
Area is bounded on the east by the U.S./Canadian maritime boundary and 
straight lines connecting the following points in the order stated:

                     GOM Modified Haddock Stock Area
------------------------------------------------------------------------
              Point                   N. latitude        W. longitude
------------------------------------------------------------------------
GMH1............................  (\1\)               (\1\)
GMH2............................  42[deg]20'          (\2\)
GMH4............................  42[deg]20'          70[deg]00'
GMH4............................  (\3\)               70[deg]00'
------------------------------------------------------------------------
\1\ The intersection of the shoreline and the U.S.-Canada maritime
  boundary.
\2\ The intersection of 42[deg]20 N. lat. and the US/Canada maritime
  boundary
\3\ The intersection of the Cape Cod, MA, coastline and 70[deg]00' W.
  long.

    (ii) GB Modified Haddock Stock Area. The GB Modified Haddock Stock 
Area is bounded on the east by the U.S./Canadian maritime boundary and 
straight lines connecting the following points in the order stated:

                     GB Modified Haddock Stock Area
------------------------------------------------------------------------
              Point                   N. latitude        W. longitude
------------------------------------------------------------------------
GBM1............................  (\1\)               70[deg]00'
GBM2............................  42[deg]20'          70[deg]00'
GBM3............................  42[deg]20'          (\2\)
GBM4............................  40[deg]30'          (\2\)
GBM5............................  40[deg]30'          66[deg]40'
GBM6............................  39[deg]50'          66[deg]40'
GBM7............................  39[deg]50'          70[deg]00'
GBM8............................  (\3\)               70[deg]00'
------------------------------------------------------------------------
\1\ The intersection of the North-facing shoreline of Cape Cod, MA and
  70[deg] 00' W. long.
\2\ The U.S.-Canada maritime boundary as it intersects with the EEZ.
\3\ The intersection of the South-facing shoreline of Cape Cod, MA and
  70[deg]0' W. long.

* * * * *
    3. In Sec.  648.14, revise paragraphs (k)(1)(i)(D), (r)(1)(vi)(A), 
(B), and (C), (r)(1)(vii)(E), (r)(1)(viii)(B), and (r)(2)(i) through 
(r)(2)(v), and add paragraphs (r)(1)(vi)(E) and (F) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (1) * * *
    (i) * * *
    (D) Any haddock, and up to 100 lb of other regulated NE 
multispecies other than haddock, were harvested by a vessel issued an 
All Areas Limited Access Herring Permit and/or an Area 2 and 3 Limited 
Access Herring Permit on a declared herring trip regardless of gear or 
area fished, or a vessel issued a Limited Access Incidental Catch 
Herring Permit and/or an Open Access Herring Permit that fished with 
midwater trawl gear, pursuant to the requirements specified at Sec.  
648.80(d) and (e), and such fish are not sold for human consumption.
* * * * *
    (r) * * *
    (1) * * *
    (vi) * * *
    (A) For the purposes of observer deployment, fail to notify NMFS at 
least 72 hr prior to departing on a declared herring trip with a vessel 
issued an All Areas Limited Access Herring Permit and/or an Area 2 and 
3 Limited Access Herring Permit and fishing with midwater trawl or 
purse seine gear, or on a trip with a vessel issued a Limited Access 
Incidental Catch Herring Permit and/or an Open Access Herring Permit 
that is fishing with midwater trawl gear in Management Areas 1A, 1B, 
and/or 3, as defined at Sec.  648.200(f)(1) and (3), pursuant to the 
requirements specified at Sec.  648.80(d) and (e).
    (B) Possess, land, transfer, receive, sell, purchase, trade, or 
barter; or attempt to transfer, receive, sell, purchase, trade, or 
barter, or sell more than 2,000 lb (907 kg) of Atlantic

[[Page 42670]]

herring per trip taken from the Herring GOM Haddock Accountability 
Measure Area and/or the Herring GB Haddock Accountability Measure Area, 
defined in Sec.  648.86(a)(3)(ii)(A)(1), by a vessel issued an Atlantic 
herring permit and that fished with midwater trawl gear, after the 
haddock cap for the area(s) has been reached pursuant to Sec.  
648.86(a)(3), unless all herring possessed or landed by the vessel was 
caught outside the applicable Accountability Measure Area(s).
    (C) Transit the Herring GOM Haddock Accountability Measure Area 
and/or the Herring GB Haddock Accountability Measure Area, defined in 
Sec.  648.86(a)(3)(ii)(A)(1), with a vessel issued an Atlantic herring 
permit and that fished with midwater trawl gear, when the 2,000-lb 
(907.2-kg) limit specified in Sec.  648.86(a)(3)(ii)(A)(1) is in place 
for the area being transited, in possession of more than 2,000 lb 
(907.2 kg) of herring, unless all herring on board was caught outside 
of the applicable Herring GOM Haddock Accountability Measure Area and/
or the Herring GB Haddock Accountability Measure Area, and all fishing 
gear is stowed and not available for immediate use, as required by 
Sec.  648.23(b).
* * * * *
    (E) Possess or land haddock taken from the Herring GOM Haddock 
Accountability Measure Area and/or the Herring GB Haddock 
Accountability Measure Area, defined in Sec.  648.86(a)(3)(ii)(A)(1), 
by a vessel issued an Atlantic herring permit and that fished with 
midwater trawl gear, after the haddock cap for the area(s) has been 
reached pursuant to Sec.  648.86(a)(3), unless all haddock possessed or 
landed by the vessel was caught outside the applicable Accountability 
Measure Area(s).
    (F) Transit the Herring GOM Haddock Accountability Measure Area 
and/or the Herring GB Haddock Accountability Measure Area, defined in 
Sec.  648.86(a)(3)(ii)(A)(1), with a vessel issued an Atlantic herring 
permit and that fished with midwater trawl gear, when the 0-lb (0-kg) 
haddock possession limit specified in Sec.  648.86(a)(3)(ii)(A)(1) is 
in place for the area being transited, in possession of haddock, unless 
all haddock on board was caught outside of the applicable Herring GOM 
Haddock Accountability Measure Area and/or the Herring GB Haddock 
Accountability Measure Area, and all fishing gear is stowed and not 
available for immediate use, as required by Sec.  648.23(b).
    (vii) * * *
* * * * *
    (E) Discard haddock at sea that has been brought on deck, or pumped 
into the hold, of a vessel issued an All Areas Limited Access Herring 
Permit and/or an Areas 2 and 3 Limited Access Herring Permit fishing on 
a declared herring trip, regardless of gear or area fished, or on a 
trip with a vessel issued a Limited Access Incidental Catch Herring 
Permit and/or an Open Access Herring Permit fishing with midwater trawl 
gear, pursuant to the requirements specified at Sec.  648.80(d) and 
(e).
* * * * *
    (viii) * * *
* * * * *
    (B) Fail to notify the NMFS Office of Law Enforcement of the time 
and date of landing via VMS at least 6 hr prior to landing herring at 
the end of a declared herring trip, if a vessel has an All Areas 
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access 
Herring Permit and is fishing with either midwater trawl or purse seine 
gear, or a Limited Access Incidental Catch Herring Permit and is 
fishing with midwater trawl gear in Management Areas 1A, 1B, and/or 3, 
as defined at Sec.  648.200(f)(1) and (3).
    (2) * * *
    (i) Sell, purchase, receive, trade, barter, or transfer haddock or 
other regulated NE multispecies (cod, witch flounder, plaice, 
yellowtail flounder, pollock, winter flounder, windowpane flounder, 
redfish, white hake, and Atlantic wolffish); or attempt to sell, 
purchase, receive, trade, barter, or transfer haddock or other 
regulated NE multispecies for human consumption; if the regulated NE 
multispecies are landed by a vessel issued an All Areas Limited Access 
Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit 
fishing on a declared herring trip regardless of gear or area fished, 
or by a vessel issued a Limited Access Incidental Catch Herring Permit 
and/or an Open Access Herring Permit fishing with midwater trawl gear 
pursuant to Sec.  648.80(d).
    (ii) Fail to comply with requirements for herring processors/
dealers that handle individual fish to separate out, and retain, for at 
least 12 hr, all haddock offloaded from a vessel issued an All Areas 
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access 
Herring Permit that fished on a declared herring trip regardless of 
gear or area fished, or by a vessel issued a Limited Access Incidental 
Catch Herring Permit and/or an Open Access Herring Permit that fished 
with midwater trawl gear pursuant to Sec.  648.80(d).
    (iii) Sell, purchase, receive, trade, barter, or transfer; or 
attempt to sell, purchase, receive, trade, barter, or transfer; to 
another person, any haddock or other regulated NE multispecies (cod, 
witch flounder, plaice, yellowtail flounder, pollock, winter flounder, 
windowpane flounder, redfish, white hake, and Atlantic wolffish) 
separated out from a herring catch offloaded from a vessel issued an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit that fished on a declared herring trip regardless 
of gear or area fished, or by a vessel issued a Limited Access 
Incidental Catch Herring Permit and/or an Open Access Herring Permit 
that fished with midwater trawl gear pursuant to Sec.  648.80(d).
    (iv) While operating as an at-sea herring processor, fail to comply 
with requirements to separate out and retain all haddock offloaded from 
a vessel issued an All Areas Limited Access Herring Permit and/or an 
Areas 2 and 3 Limited Access Herring Permit that fished on a declared 
herring trip regardless of gear or area fished, or by a vessel issued a 
Limited Access Incidental Catch Herring Permit and/or an Open Access 
Herring Permit that fished with midwater trawl gear pursuant to Sec.  
648.80(d).
    (v) Fish with midwater trawl gear in Closed Area I, as specified at 
Sec.  648.81(a), without a NMFS approved observer onboard, if the 
vessel has been issued an Atlantic herring permit.
* * * * *
    4. In Sec.  648.15, revise paragraphs (d)(1) and (e) to read as 
follows:


Sec.  648.15  Facilitation of enforcement.

* * * * *
    (d) Retention of haddock by herring dealers and processors. (1) 
Federally permitted herring dealers and processors, including at-sea 
processors, that cull or separate out from the herring catch all fish 
other than herring in the course of normal operations, must separate 
out and retain all haddock offloaded from a vessel issued an All Areas 
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access 
Herring Permit that fished on a declared herring trip regardless of 
gear or area fished, or by a vessel issued a Limited Access Incidental 
Catch Herring Permit and/or an Open Access Herring Permit that fished 
with midwater trawl gear pursuant to Sec.  648.80(d). Such haddock may 
not be sold, purchased, received, traded, bartered, or transferred, and 
must be retained, after they have been separated, for at least 12 hrs 
for dealers and processors on land, and for 12 hrs after landing by at-
sea processors. The dealer or processor, including at-sea processors, 
must clearly indicate the

[[Page 42671]]

vessel that landed the retained haddock or transferred the retained 
haddock to an at-sea processor. Authorized officers must be given 
access to inspect the haddock.
* * * * *
    (e) Retention of haddock by herring vessels using midwater trawl 
gear. Vessels issued an All Areas Limited Access Herring Permit and/or 
an Areas 2 and 3 Limited Access Herring Permit fishing on a declared 
herring trip regardless of gear or area fished, and vessels issued a 
Limited Access Incidental Catch Herring Permit and/or an Open Access 
Herring Permit and fishing with midwater trawl gear pursuant to Sec.  
648.80(d), may not discard any haddock that has been brought on the 
deck or pumped into the hold.
    5. In Sec.  648.80, revise paragraphs (d)(4) through (d)(6), 
(d)(7)(i) and (d)(7)(ii) introductory text, and (e)(4) to read as 
follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (d) * * *
    (4) The vessel does not fish for, possess or land NE multispecies, 
except that vessels issued an All Areas Limited Access Herring Permit 
and/or an Areas 2 and 3 Limited Access Herring Permit and fishing on a 
declared herring trip regardless of gear or area fished, and vessels 
issued a Limited Access Incidental Catch Herring Permit and/or an Open 
Access Herring Permit and fishing with midwater trawl gear pursuant to 
paragraph (d) of this section, may possess and land haddock and other 
regulated multispecies consistent with the catch caps and possession 
restrictions specified in Sec.  648.86(a)(3) and (k). Such haddock or 
other regulated NE multispecies may not be sold, purchased, received, 
traded, bartered, or transferred, or attempted to be sold, purchased, 
received, traded, bartered, or transferred for, or intended for, human 
consumption. Haddock or other regulated NE multispecies that are 
separated out from the herring catch pursuant to Sec.  648.15(d) may 
not be sold, purchased, received, traded, bartered, or transferred, or 
attempted to be sold, purchased, received, traded, bartered, or 
transferred for any purpose. Vessels issued an All Areas Limited Access 
Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit 
fishing on a declared herring trip regardless of gear or area fished, 
and vessels issued a Limited Access Incidental Catch Herring Permit 
and/or an Open Access Herring Permit and fishing with midwater trawl 
gear pursuant to paragraph (d) of this section, may not discard haddock 
that has been brought on the deck or pumped into the hold;
    (5) To fish for herring under this exemption, a vessel issued an 
All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit fishing on a declared herring trip, or a vessel 
issued a Limited Access Incidental Catch Herring Permit and/or an Open 
Access Herring Permit fishing with midwater trawl gear in Management 
Areas 1A, 1B, and/or 3, as defined at Sec.  648.200(f)(1) and (3), must 
provide notice of the following information to NMFS at least 72 hr 
prior to beginning any trip into these areas for the purposes of 
observer deployment: Vessel name; contact name for coordination of 
observer deployment; telephone number for contact; the date, time, and 
port of departure; and whether the vessel intends to engage in fishing 
in Closed Area I, as defined in Sec.  648.81(a), at any point in the 
trip; and
    (6) A vessel issued an All Areas Limited Access Herring Permit and/
or an Areas 2 and 3 Limited Access Herring Permit fishing on a declared 
herring trip with midwater trawl gear, or a vessel issued a Limited 
Access Incidental Catch Herring Permit and fishing with midwater trawl 
gear in Management Areas 1A, 1B, and/or 3, as defined at Sec.  
648.200(f)(1) and (3), must notify NMFS Office of Law Enforcement 
through VMS of the time and place of offloading at least 6 hr prior to 
crossing the VMS demarcation line on their return trip to port, or, for 
a vessel that has not fished seaward of the VMS demarcation line, at 
least 6 hr prior to landing. The Regional Administrator may adjust the 
prior notification minimum time through publication of a notice in the 
Federal Register consistent with the Administrative Procedure Act.
    (7) Fishing in Closed Area I. (i) No vessel issued a Federal 
Atlantic herring permit and fishing with midwater trawl gear, may fish, 
possess or land fish in or from, Closed Area I unless it has declared 
first its intent to fish in Closed Area I as required by paragraph 
(d)(5) of this section, and is carrying onboard a NMFS-approved 
observer.
    (ii) No vessel issued a Federal Atlantic herring permit and fishing 
with midwater trawl gear, when fishing any part of a midwater trawl tow 
in Closed Area I, may release fish from the codend of the net, transfer 
fish to another vessel that is not carrying a NMFS-approved observer 
(e.g., an Atlantic herring at-sea processing vessel or an Atlantic 
herring carrier vessel), or otherwise discard fish at sea, unless the 
fish has first been brought aboard the vessel and made available for 
sampling and inspection by the observer, except in the following 
circumstances:
* * * * *
    (e) * * *
    (4) The vessel does not fish for, possess, or land NE multispecies, 
except that vessels that have an All Areas Limited Access Herring 
Permit and/or an Areas 2 and 3 Limited Access Herring Permit fishing on 
a declared herring trip may possess and land haddock or other regulated 
species consistent with possession restrictions specified in Sec.  
648.86(a)(3) and (k), respectively.