Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Amendment 8, 54094-54101 [2019-21712]

Download as PDF 54094 Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules C. Privacy Act In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL– 14–FDMS), which can be reviewed at www.dot.gov/privacy. II. Background The August NPRM proposed amendments to the Agency’s financial assistance programs resulting from the Fixing America’s Surface Transportation (FAST) Act, including amendments based on the funding formula recommendations derived from the Motor Carrier Safety Assistance Program (MCSAP) Formula Working Group (working group). The NPRM proposed reorganizing the Agency’s regulations to create a standalone subpart for the High Priority Program. It also proposed other programmatic changes to reduce redundancies, require the use of 3-year MCSAP commercial vehicle safety plans (CVSPs), and align the financial assistance programs with FMCSA’s current enforcement and compliance programs. The comment period for the NPRM was set at 45 days, and would end on October 7, 2019. FMCSA received a request to extend the comment period for an additional 45 days from the CVSA (available in the docket). CVSA stated that the original 45-day period did not allow enough time to prepare and approve comments on such a complicated and important issue. In consideration of the CVSA request, FMCSA extends the public comment period until October 21, 2019. Issued under authority delegated in 49 CFR 1.87. Dated: October 1, 2019. Larry W. Minor, Associate Administrator for Policy. [FR Doc. 2019–22062 Filed 10–8–19; 8:45 am] khammond on DSKJM1Z7X2PROD with PROPOSALS BILLING CODE 4910–EX–P VerDate Sep<11>2014 16:30 Oct 08, 2019 Instructions: Comments sent by any other method, to any other address or National Oceanic and Atmospheric individual, or received after the end of Administration the comment period, may not be considered by us. All comments 50 CFR Part 648 received are a part of the public record and will generally be posted for public [Docket No. 191001–0048] viewing on www.regulations.gov RIN 0648–BI80 without change. All personal identifying information (e.g., name, address, etc.), Magnuson-Stevens Fishery confidential business information, or Conservation and Management Act otherwise sensitive information Provisions; Fisheries of the submitted voluntarily by the sender will Northeastern United States; be publicly accessible. We will accept Amendment 8 anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain AGENCY: National Marine Fisheries anonymous). Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Copies of Amendment 8, including Commerce. the Environmental Impact Statement, the Regulatory Impact Review, and the ACTION: Proposed rule, request for Initial Regulatory Flexibility Analysis comments. (EIS/RIR/IRFA) prepared in support of SUMMARY: This rule proposes regulations this action are available from Thomas A. to implement Amendment 8 to the Nies, Executive Director, New England Atlantic Herring Fishery Management Fishery Management Council, 50 Water Plan. The New England Fishery Street, Mill 2, Newburyport, MA 01950. Management Council developed The supporting documents are also Amendment 8 to specify a long-term accessible via the internet at: http:// acceptable biological catch control rule www.nefmc.org. for Atlantic herring and address FOR FURTHER INFORMATION CONTACT: localized depletion and user group Carrie Nordeen, Fishery Policy Analyst, conflict. This amendment would phone: (978) 282–9272 or email: establish an acceptable biological catch Carrie.Nordeen@noaa.gov. control rule that accounts for herring’s role in the ecosystem and prohibit SUPPLEMENTARY INFORMATION: midwater trawling in inshore Federal Background waters from the U.S./Canada border to the Rhode Island/Connecticut border. The goal of the Atlantic Herring Amendment 8 is intended to support Fishery Management Plan (FMP) is to sustainable management of the herring manage the herring fishery at long-term resource and help ensure that herring is sustainable levels and objectives of the available to minimize possible FMP include providing for full detrimental biological impacts on utilization of the optimum yield (OY) predators of herring and associated and, to the extent practicable, controlled socioeconomic impacts on other user opportunities for participants in other groups. New England and Mid-Atlantic fisheries. The Herring FMP describes DATES: Public comments must be OY as the amount of fish that will received by November 25, 2019. provide the greatest overall benefit to ADDRESSES: You may submit comments, identified by NOAA–NMFS–2019–0078, the Nation, particularly with respect to food production and recreational by either of the following methods: opportunities, taking into account the • Electronic Submission: Submit all protection of marine ecosystems, electronic public comments via the including maintenance of a biomass that Federal eRulemaking Portal. supports the ocean ecosystem, predator 1. Go to www.regulations.gov/ consumption of herring, and #!docketDetail;D=NOAA-NMFS-2019biologically sustainable human harvest. 0078; This includes recognition of the 2. Click the ‘‘Comment Now!’’ icon importance of herring as one of many and complete the required fields; and forage species of fish, marine mammals, 3. Enter or attach your comments. and birds in the Greater Atlantic Region. • Mail: Submit written comments to Consistent with these aims, the goals for Michael Pentony, Regional Amendment 8 are to: (1) Account for the Administrator, National Marine role of herring within the ecosystem, Fisheries Service, 55 Great Republic including its role as forage; (2) stabilize Drive, Gloucester, MA 01930. Mark the the fishery at a level designed to achieve outside of the envelope, ‘‘Comments on OY; and (3) address localized depletion the Proposed Rule for Herring in inshore waters. Amendment 8.’’ DEPARTMENT OF COMMERCE Jkt 250001 PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 E:\FR\FM\09OCP1.SGM 09OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules On February 26, 2015 (80 FR 10458), the New England Fishery Management Council (Council) published a notice of intent (NOI) to prepare an EIS for Amendment 8 to consider long-term harvest strategies for herring, including an acceptable biological catch (ABC) control rule that addressed the biological and ecological requirements of the herring resource. The importance of herring as a forage species was underscored by the Council’s specified intent to consider a wide range of ABC control rule alternatives, including those that explicitly account for herring’s role in the ecosystem. The Council held scoping meetings during March and April of 2015 to solicit comments on ABC control rule alternatives. An ABC control rule is a formulaic approach for setting a harvest limit. For herring and other stocks with a defined overfishing limit (OFL), the ABC is reduced from the OFL by scientific uncertainty, such as uncertainty around stock size estimates, variability around estimates of recruitment, and consideration of ecosystem issues, so that the OFL will not be exceeded. The ABC control rule is developed by the Council to reflect its risk tolerance for not exceeding the OFL and provides guidance to the Council’s Scientific and Statistical Committee for recommending annual ABCs based on the best available scientific information about stock status. The specific parameters of an ABC control rule are: (1) Upper biomass parameter; (2) maximum fishing mortality (F); and (3) lower biomass parameter. The values assigned to each of these parameters dictate the overall ‘‘shape’’ or function of the ABC control rule and determine whether F increases or decreases in response to the current estimate of stock biomass. The Council developed alternatives for a herring ABC control rule using a Management Strategy Evaluation (MSE). MSE is a decision-making tool that uses computer modeling to compare the performance of alternatives (i.e., management strategies) under various scenarios to achieve multiple, competing objectives. Because we do not have a complete understanding of the ocean ecosystem and all the sources of uncertainty, MSEs are useful to evaluate how alternatives perform under different environmental conditions. The Council held two public workshops to generate stakeholder input to help identify objectives for the MSE analysis. Input generated by the workshops was considered by the Council and, for the most part, adopted and included in Amendment 8. The MSE used three models, a herring model, a predator VerDate Sep<11>2014 16:30 Oct 08, 2019 Jkt 250001 model, and an economic model, to compare ABC control rule performance. The models simulated how well the ABC control rules achieved herring management objectives, such as biomass, yield, revenue, and predator considerations, under simulated environmental conditions related to herring growth, stock assessment bias, and productivity of herring. Results of the MSE informed the range of ABC control rule alternatives and impact analyses of those alternatives in Amendment 8. On August 21, 2015 (80 FR 50825), the Council published a supplemental NOI announcing it was expanding the scope of Amendment 8 to consider localized depletion in inshore waters. The supplemental NOI defined localized depletion as harvesting more fish from an area than can be replaced within a given time period. It also explained the Council was seeking input from the interested public as to how to define, measure, and evaluate impacts, and minimize inshore, localized depletion in the herring fishery as part of Amendment 8. Public comment during the supplemental scoping made it clear that localized depletion concerns voiced by many stakeholders were not just related to the biological impacts of herring removals on the herring stock and on predators of herring. Public comment also indicated that impacts of localized depletion should be measured and evaluated relative to competing uses for the herring resource and potentially negative economic impacts on businesses that rely on predators of herring. The Council’s interest in the localized depletion of herring extends back to the early development of the Herring FMP. Despite a lack of quantitative evidence demonstrating localized depletion, Amendment 1 to the Herring FMP (72 FR 11252, March 12, 2007) prohibited midwater trawling for herring in Herring Management Area 1A from June through September as a proactive measure to prevent potential negative impacts on the stock, the fishery, and predators of herring resulting from over harvesting in Area 1A. Ultimately, the Council’s consideration of localized depletion in Amendment 8 included describing localized depletion as involving user group conflict and included both an evaluation of impacts of the user group conflict and consideration of competing interests for how herring should be used. The Council’s concern with localized depletion and user group conflict is explained in this excerpt from the Council’s April 2016 problem PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 54095 statement: ‘‘. . . concerns with concentrated, intense commercial fishing of Atlantic herring in specific areas and at certain times that cause detrimental socioeconomic impacts on other user groups (commercial, recreational, ecotourism) who depend upon adequate local availability of Atlantic herring to support business and recreational interests both at sea and on shore.’’ The range of localized depletion and user group conflict alternatives in Amendment 8 were developed to address potential localized depletion of herring to minimize possible detrimental biological impacts on predators of herring and associated socioeconomic impacts on other user groups. A Notice of Availability (NOA) for Amendment 8 was published in the Federal Register on August 21, 2019 (84 FR 43573). The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) allows us to approve, partially approve, or disapprove measures recommended by the Council in an amendment based on whether the measures are consistent with the fishery management plan, plan amendment, the Magnuson-Stevens Act and its National Standards, and other applicable law. The Council develops policy for its fisheries, and we defer to the Council on policy decisions unless those policies are inconsistent with the Magnuson-Steven Act or other applicable law. As such, we are seeking comments on whether measures in Amendment 8 are consistent with the Herring FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. The comment period for the NOA ends on October 21, 2019. Comments submitted on the NOA and/or this proposed rule prior to October 21, 2019, will be considered in our decision to approve, partially approve, or disapprove Amendment 8. We will consider comments received by the end of the comment period for this proposed rule November 25, 2019 in our decision to implement measures proposed by the Council. Proposed Measures This rule proposes a long-term ABC control rule for herring. Under the proposed control rule, when biomass is at or above 50 percent of the biomass associated with maximum sustainable yield (BMSY) or its proxy, ABC is the catch associated with a maximum fishing mortality (F) of 80 percent of FMSY or its proxy. When biomass falls below 50 percent of BMSY or its proxy, F declines linearly to 0 at 10 percent of BMSY or its proxy. The control rule would set ABC for a three-year period E:\FR\FM\09OCP1.SGM 09OCP1 54096 Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS but would allow ABC to vary year-toyear in response to projected changes in biomass. This rule proposes that the control rule could be revised via a framework adjustment if a quantitative assessment is not available, if projections are producing ABCs that are not justified or consistent with available information, or if the stock requires a rebuilding program. The proposed control rule is intended to explicitly account for herring as forage in the ecosystem by limiting F to 80 percent of FMSY when biomass is high and setting it at zero when biomass is low. It is also intended to generate an ABC consistent with specific criteria identified by the Council, including low variation in yield, low probability of the stock becoming overfished, low probability of a fishery shutdown, and catch limits set at a relatively high proportion of MSY. The Council anticipates that short-term negative economic impacts on participants in the herring or lobster fisheries, resulting from a reduced herring harvest in response to low herring biomass, may become a long-term economic benefit VerDate Sep<11>2014 16:30 Oct 08, 2019 Jkt 250001 for industry participants, especially if the proposed control rule results in low variation in yield, low probability of a fishery shutdown, and low probability of overfishing. Relative to other control rules considered by the Council, the proposed control rule is designed to more effectively balance the goal and objectives of the Herring FMP, including managing the fishery at long-term sustainable levels, taking forage for predators into account to support the ocean ecosystem, and providing a biologically sustainable harvest as a source of revenue for fishing communities and bait for the lobster fishery. Shortly before the Council took final action on Amendment 8, an updated stock assessment concluded that herring biomass is low, and the probability of overfishing and the stock becoming overfished is high. While not directly applicable to a long-term harvest policy, the Council noted that under herring’s current condition of low biomass, setting catch more conservatively than status quo may increase the likelihood of stock growth. In turn, this would PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 have positive impacts on the herring fishery, predators, and predator fisheries. This rule also proposes prohibiting the use of midwater trawl gear inshore of 12 nautical miles (22 km) from the U.S./Canada border to the Rhode Island/ Connecticut border and inshore of 20 nautical miles (37 km) off the east coast of Cape Cod. Specifically, federally permitted vessels would be prohibited from using, deploying, or fishing with midwater trawl gear within the inshore midwater trawl restricted area located shoreward of the 12-nautical mile (22km) territorial sea boundary from Canada to Connecticut and within thirty-minute squares 114 and 99 off Cape Cod (Figure 1). Midwater trawl vessels would be able to transit the inshore midwater trawl restricted gear area provided gear was stowed and not available for immediate use. The proposed measure would be in addition to the existing prohibition on midwater trawling for herring in Area 1A during June 1 through September 30. E:\FR\FM\09OCP1.SGM 09OCP1 The Council recommended the proposed inshore midwater trawl restricted area to minimize local depletion and user group conflict when midwater trawl vessels harvesting herring overlap with other user groups (i.e., commercial fisheries, recreational fisheries, ecotourism) that rely on herring as forage and provide inshore conservation benefits. The Council focused on midwater trawl gear to mitigate potential negative socioeconomic impacts on other user groups in response to short duration, high volume herring removals by midwater trawl vessels that are relatively more mobile and capable of fishing in offshore areas than vessels using other gear types. Information to quantify the impact of midwater trawling on other user groups is scarce, so the amendment analyzed the degree of overlap between midwater trawl vessels and other user groups. The VerDate Sep<11>2014 16:30 Oct 08, 2019 Jkt 250001 proposed measure is intended to incorporate areas with a high degree of overlap between midwater trawl vessels and other user groups throughout the year. Specifically, it incorporates the overlap with predator fisheries in the Gulf of Maine and southern New England throughout the year, as well as the overlap with ecotourism and the tuna fishery in Area 1A during the fall. While overlap with the midwater trawl vessels does not necessarily translate into negative biological impacts on predators, less overlap may reduce potential user conflicts, provided midwater trawl effort does not shift into other areas and generate additional overlap. The Herring FMP specifies that herring research set-aside (RSA) can equal up to three percent of the subannual catch limit for a herring management area. This rule proposes that RSA compensation fishing using PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 54097 midwater trawl gear would be permitted within the inshore midwater trawl restricted area. The Council recommended permitting RSA compensation fishing within the inshore midwater trawl restricted area to help ensure the RSA would be harvested and those funds would be available to support the projects awarded RSA. Vessels engaged in herring RSA compensation fishing typically operate as authorized by an exempted fishing permit (EFP) so they can request exemptions from certain regulations that would otherwise restrict herring harvest. While vessels would be permitted to use midwater trawl gear within the inshore midwater trawl restricted area while RSA compensation fishing, it does not mean that compensations trips would be without restrictions. Terms and conditions of the EFP must be consistent with the Magnuson-Stevens Act, other applicable E:\FR\FM\09OCP1.SGM 09OCP1 EP09OC19.024</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 54098 Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules law, and Herring FMP. Additionally, we would consider whether additional terms and conditions would be required for EFPs to ensure RSA compensation trips do not exacerbate the overlap between midwater trawl vessels and other user groups. This rule proposes that the inshore midwater trawl restricted area or new closures to address localized depletion and/or user group conflict could be modified or implemented via framework adjustment. The list of framework provisions at § 648.206 already includes closed areas; this amendment would add the inshore midwater trawl restricted area to that list. The Council’s recommendation to prohibit midwater trawling in inshore areas is an allocation decision intended to balance the needs of user groups and provide conservation benefits. Consistent with objectives in the Herring FMP, the proposed measure is intended to facilitate an efficient, fair, and equitable accommodation of social, economic, and ecological factors associated with achieving OY, in part by providing, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. Because midwater trawl vessels historically harvested a larger percentage of herring than other gear types and are able to fish offshore, the Council recommended prohibiting them from inshore waters to help ensure herring was available inshore for other user groups and predators of herring. The proposed inshore midwater trawl restricted area is designed to be reasonably large enough to address the overlap between midwater trawl vessels and other user groups and, ultimately, user group conflict in inshore waters. This proposed measure is likely to negatively impact the midwater trawl fleet, with potentially increased trip costs and lower annual catches, but the Council believes that, on balance, the benefits to other user groups, such as potentially reduced trips costs, higher annual catches, and improved safety, outweigh the costs to midwater trawl vessels. The proposed measure may also have biological benefits if moving midwater trawl vessels offshore minimizes catch of river herring and shad, reduces fishing pressure on the inshore component of the herring stock, and helps ensure herring are available to predators. Herring is currently assessed as one stock, but it likely has stock components. Reducing fishing pressure inshore would benefit an inshore stock component. Analyses in Amendment 8 estimate that in recent years approximately 30 percent of the midwater trawl fleet’s annualized VerDate Sep<11>2014 16:30 Oct 08, 2019 Jkt 250001 revenue came from within the proposed inshore midwater trawl restricted area. Negative economic impacts on the midwater trawl fleet may be mitigated if the fleet is able to offset lost revenue from inshore areas with increased revenue from offshore areas. Herring catch limits are currently low, so the fishery has the capacity to harvest the OY. Recent midwater trawl landings (2007–2015) offshore of the proposed midwater trawl restricted area (36,903 mt) are much higher than the Councilrecommended OY for 2020 and 2021 (11,621 mt). In the longer-term, the fishery will likely adapt to be able harvest an increased OY, provided vessels are able to locate herring. Proposed Clarifications We propose the following revision and clarifications to § 648.202(a) under the authority of section 305(d) to the Magnuson-Stevens Act, which provides that the Secretary of Commerce may promulgate regulations necessary to carry out a FMP or the MagnusonStevens Act. First, this rule proposes revising the title from ‘‘Purse Seine/Fixed Gear Only Area’’ to ‘‘Midwater Trawl Restricted Area.’’ Bottom trawl gear, in addition to purse seine and fixed gear, is permitted in the referenced area; only midwater trawl gear is prohibited in the area. The proposed revision is a more accurate description of the referenced area and is necessary to clarify the intent of the regulation. Second, this rule proposes clarifying that the regulation applies to all federally permitted vessels fishing for herring. The regulation currently applies midwater trawl gear restrictions to vessels fishing for herring. This clarification is necessary to specify that restrictions on fishing for herring with midwater trawl gear only apply to federally permitted vessels and do not apply to vessels with only a state herring permit fishing exclusively in state waters. Third, the rule proposes clarifying the conditions under which midwater trawl vessels may transit the ‘‘Midwater Trawl Restricted Area’’ described above. Current regulations specify that midwater trawl vessels with a limited access herring permit may transit Area 1A during June through September with midwater trawl gear on board, provided the gear is stowed and not available for immediate use. This rule proposes clarifying that any federally permitted herring vessel may transit Area 1A during June through September, provided midwater trawl gear is stowed and not available for immediate use. The unnecessary addition of a limited PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 access permit requirement to transit Area 1A is likely a byproduct of the impact analysis identifying the number of limited access vessels that would be affected by the prohibition of midwater trawling in Area 1A implemented in Amendment 1 to the Herring FMP. Lastly, we propose a revision to § 648.200(b)(3) under the authority of section 305(d) to the Magnuson-Stevens Act. This revision would change the reference from ‘‘at’’ § 648.201(a) to ‘‘in’’ § 648.201(a) to be consistent with other regulatory references within § 648.200. Classification Pursuant to section 304(a)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent the Magnuson-Stevens Act and other applicable law. In making the final determination, we will consider the data, views, and comments received during the public comment period. This proposed rule has been preliminarily determined to be not significant for purposes of Executive Order (E.O.) 12866. An Initial Regulatory Flexibility Analysis (IRFA) was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 603. The IRFA describes the economic impact that this proposed rule would have on small entities, including small businesses, and also determines ways to minimize these impacts. The IRFA includes this section of the preamble to this rule and analyses contained in Amendment 8 and its accompanying EIS/RIR/IRFA. A copy of the full analysis is available from the Council (see ADDRESSES). A summary of the IRFA follows. Description of the Reason Why Action by the Agency Is Being Considered and Statement of the Objective of, and Legal Basis for, This Proposed Rule This action proposes management measures for the herring fishery. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to this proposed rule and are not repeated here. Description and Estimate of the Number of Small Entities to Which the Proposed Rule Would Apply Effective July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing E:\FR\FM\09OCP1.SGM 09OCP1 Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules industry for RFA compliance purposes only (80 FR 81194, December 29, 2015). A commercial fishing business is classified as a small business if it is independently owned and operated, is not dominant in its field of operation, and has combined annual receipts not in excess of $11 million. This action would affect all permitted herring vessels; therefore, the direct regulated entity is a firm that owns at least one herring permit. There are many firms that hold an open-access (Category D) herring permit. These firms harvest only a small fraction of herring; furthermore, they are minimally affected by the regulations. As of June 1, 2018, there were 862 firms (852 small) that held at least one herring permit. There were 126 (123 small) active firms that held at least one herring permit. There were 101 (94 small) firms that held at least one limited access (Categories A, B, C) herring permit or a Category E open access herring permit. There were 53 (50 small) firms that held a limited access or Category E herring permit and were active in the herring fishery. Table 1 characterizes ‘‘gross receipts’’ and ‘‘herring receipts’’ for firms that held a limited access or Category E open access herring permit. Table 2 characterizes ‘‘gross receipts’’ and ‘‘herring receipts’’ for firms that held a limited access or Category E open access herring permit and were active in the herring fishery. In both tables, the small entities are 54099 further characterized by gear type to facilitate comparisons. There are fewer than three large entities that use midwater trawl gear, so the description of the large entities is not disaggregated to gear type to preserve confidentiality under the Magnuson-Stevens Act. Table 3 characterizes ‘‘gross receipts’’ and ‘‘herring receipts’’ for firms that held a herring permit and Table 4 characterizes ‘‘gross receipts’’ and ‘‘herring receipts’’ for firms that held a herring permit and were active in the herring fishery. Tables 3 and 4 include firms with Category D open access herring permits that would be minimally impacted by this action. TABLE 1—AVERAGE RECEIPTS FROM FIRMS WITH LIMITED ACCESS AND CATEGORY E OPEN ACCESS HERRING PERMITS IN 2017 Firm size Firms Large ............................................................... Small ............................................................... Small ............................................................... Gross receipts Gear 7 9 85 All ................................................................... Midwater Trawl ............................................... Non-Midwater Trawl ....................................... $20,396,374 2,499,646 1,299,110 Herring receipts $492,598 1,241,225 137,954 Source: NMFS. TABLE 2—AVERAGE RECEIPTS FROM FIRMS WITH LIMITED ACCESS AND CATEGORY E OPEN ACCESS HERRING PERMITS THAT WERE ACTIVE IN THE HERRING FISHERY IN 2017 Firm size Firms Large ............................................................... Small ............................................................... Small ............................................................... Gross receipts Gear 3 9 41 All ................................................................... Midwater Trawl ............................................... Non-Midwater Trawl ....................................... $16,567,731 2,499,646 1,276,255 Herring receipts $1,149,395 1,241,225 286,002 Source: NMFS. TABLE 3—AVERAGE RECEIPTS FROM ALL FIRMS WITH A HERRING PERMIT IN 2017 Firm size Firms Large ............................................................... Small ............................................................... Small ............................................................... Gross receipts Gear 10 9 843 All ................................................................... Midwater Trawl ............................................... Non-Midwater Trawl ....................................... $19,873,801 2,499,646 639,591 Herring receipts $344,818 1,241,225 14,002 Source: NMFS. TABLE 4—AVERAGE RECEIPTS FROM ALL FIRMS WITH A HERRING PERMIT THAT WERE ACTIVE IN THE HERRING FISHERY IN 2017 khammond on DSKJM1Z7X2PROD with PROPOSALS Firm size Firms Large ............................................................... Small ............................................................... Small ............................................................... Gross receipts Gear 3 9 114 All ................................................................... Midwater Trawl ............................................... Non-Midwater Trawl ....................................... Source: NMFS. VerDate Sep<11>2014 16:30 Oct 08, 2019 Jkt 250001 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 E:\FR\FM\09OCP1.SGM 09OCP1 $16,567,731 2,499,646 681,943 Herring receipts $1,149,395 1,241,225 103,540 54100 Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This action contains no new collection-of-information, reporting, or recordkeeping requirements. Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule This action does not duplicate, overlap, or conflict with any other Federal rules. khammond on DSKJM1Z7X2PROD with PROPOSALS Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities When evaluating ABC control rule alternatives, Alternative 1 is the nonpreferred alternative with potential to lessen economic impacts on small entities compared to the proposed measure. Alternative 1 is less conservative than the proposed ABC control rule and represents the interim control rule that was used to set herring ABC for 2016–2018. Analyses in Amendment 8 suggest the difference between the average ABCs under Alternative 1 (24,553 mt) and the proposed ABC control rule (22,685 mt) in the short-term (2019–2021) is less than 2,000 mt. Long-term differences between the average ABCs resulting from Alternative 1 and the proposed ABC control rule are expected to be minimal. Relative to Amendment 8’s goal for an ABC control rule, F is lower under the proposed ABC control rule (80 percent of FMSY) than under Alternative 1 (90 percent of FMSY), therefore, the proposed ABC control rule likely better accounts for herring’s role as forage in the ecosystem by limiting fishing than Alternative 1. When evaluating localized depletion and user group conflict alternatives, several of the non-preferred alternatives have the potential to lessen economic impacts on small entities compared to the proposed measure. The proposed measure would prohibit federally permitted vessels from fishing inshore with midwater trawl gear. Under the proposed measure, analyses in Amendment 8 estimate that herring revenue will decline by about 13 percent for small firms that use midwater trawl gear compared to the no action alternative. Additionally, under the proposed measure, small firms that use purse seine or bottom trawl gear may have revenue increases of 29 percent compared to the no action alternative. Negative economic impacts VerDate Sep<11>2014 16:30 Oct 08, 2019 Jkt 250001 on midwater trawl vessels may be mitigated if vessels are able to catch a greater percentage of fish offshore or if they switch to purse seine or bottom trawl gear and continue to fish inshore. Relative to the goals in Amendment 8, the proposed action is expected to minimize potential localized depletion and user group conflict, by reducing the overlap between midwater trawl vessels and other user groups, better than the non-preferred alternatives that would minimize economic impacts on midwater trawl vessels. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: October 1, 2019. 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 1. The authority citation for part 648 continues to read as follows: ■ Authority: 16 U.S.C. 1801 et seq. 2. In § 648.14, add paragraphs (r)(1)(vi)(H) and (I) to read as follows: ■ § 648.14 Prohibitions. * * * * * (r) * * * (1) * * * (vi) * * * (H) Use, deploy, or fish with midwater trawl gear within the inshore midwater trawl restricted area as defined in § 648.202(a)(2), unless the vessel is on a declared research set-aside trip and operating as authorized by an exempted fishing permit or the vessel has not been issued a valid, Federal permit under this part and fishes exclusively in state waters. (I) Transit the inshore midwater trawl restricted area, defined in § 648.202(a)(2), with midwater trawl gear onboard unless midwater trawl gear is stowed and not available for immediate use, as defined in § 648.2 or the vessel has not been issued a valid, Federal permit under this part and fishes exclusively in state waters. * * * * * ■ 3. In § 648.200, revise paragraphs (b)(1) through (3) to read as follows: § 648.200 Specifications. * * * * * (b) * * * (1) OFL must be equal to catch resulting from applying the maximum PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 fishing mortality threshold to a current or projected estimate of stock size. When the stock is not overfished and overfishing is not occurring, this is the fishing rate supporting maximum sustainable yield (FMSY or proxy). Catch that exceeds this amount would result in overfishing. (2) ABC must be less than the OFL. The Council’s Scientific and Statistical Committee (SSC) shall recommend ABC to the Council by applying the ABC control rule in § 648.200 and considering scientific uncertainty. Scientific uncertainty, including, but not limited to, uncertainty around stock size estimates, variability around estimates of recruitment, and consideration of ecosystem issues, shall be considered when setting ABC. (3) ACL must be equal to or less than the ABC. Management uncertainty, which includes, but is not limited to, expected catch of herring in the New Brunswick weir fishery and the uncertainty around discard estimates of herring caught in Federal and state waters, shall be considered when setting the ACL. Catch in excess of the ACL shall trigger accountability measures (AMs), as described in § 648.201(a). * * * * * ■ 4. In § 648.202, revise paragraph (a) to read as follows: § 648.202 Season and area restrictions. (a) Midwater Trawl Restricted Areas— (1) Area 1A. Federally permitted vessels fishing for Atlantic herring may not use, deploy, or fish with midwater trawl gear in Area 1A from June 1 September 30 of each fishing year. A vessel with midwater trawl gear on board may transit Area 1A from June 1–September 30, provided such midwater trawl gear is stowed and not available for immediate use as defined in § 648.2. Vessels may use any authorized gear type to harvest herring in Area 1A from October 1—May 31. (2) Inshore. Federally permitted vessels may not use, deploy, or fish with midwater trawl gear within the inshore midwater trawl restricted area. A federally permitted vessel with midwater trawl gear on board may transit the inshore midwater trawl restricted area, provided such midwater trawl gear is stowed and not available for immediate use as defined in § 648.2. Vessels on a declared research set-aside trip are permitted to use, deploy, or fish with midwater trawl gear within the inshore midwater trawl restricted areas provided the vessel is operating as authorized by an exempted fishing permit. The Inshore Midwater Trawl Restricted Area includes all state and Federal waters between the U.S. E:\FR\FM\09OCP1.SGM 09OCP1 Federal Register / Vol. 84, No. 196 / Wednesday, October 9, 2019 / Proposed Rules coastline and the following points, 54101 connected in the order listed by straight lines, unless otherwise noted: TABLE 1 TO PARAGRAPH (A)(2) Point IMT1 IMT2 IMT3 IMT4 IMT5 IMT6 IMT7 IMT8 Latitude ......................................................... ......................................................... ......................................................... ......................................................... ......................................................... ......................................................... ......................................................... ......................................................... 44° 42° 42° 41° 41° 41° 40° 41° Longitude 17.986′ N .......................................... 00.00′ N ............................................ 00.00′ N ............................................ 00.00′ N ............................................ 00.00′ N ............................................ 2.339′ N ............................................ 50.637′ N .......................................... 18.503′ N .......................................... 67° 69° 69° 69° 70° 70° 71° 71° 5.503′ W ........................................... 43.474′ W ......................................... 30.00′ W ........................................... 30.00′ W ........................................... 00.00′ W ........................................... 00.00′ W ........................................... 51.00′ W ........................................... 51.00′ W ........................................... Note (1)(2) (2)(3) ........................ ........................ ........................ (4)(5) (5)(6) (7) 1 Point IMT1 represents the intersection of the U.S./Canada Maritime Boundary and the 12 nautical mile (nmi) Territorial Sea boundary. Point IMT1 to Point IMT2 following the 12 nmi Territorial Sea boundary. IMT2 represents the intersection of the 12 nmi Territorial Sea boundary and 42°00′ N lat. 4 Point IMT6 represents the intersection of 70°00′ W long. and the 12 nmi Territorial Sea boundary. 5 From Point IMT6 to Point IMT7 following the 12 nmi Territorial Sea Boundary. 6 Point IMT7 represents the intersection of 71°51′ W long. and the 12 nmi Territorial Sea boundary. 7 Point IMT8 represents the intersection of 71°51′ W long. and the coastline of Watch Hill, RI. 2 From 3 Point * * * * * 5. In § 648.206, revise paragraphs (b)(3), (37), and (38) and add paragraph (b)(39) to read as follows: ■ § 648.206 khammond on DSKJM1Z7X2PROD with PROPOSALS * Framework provisions. * * (b) * * * VerDate Sep<11>2014 * * 16:30 Oct 08, 2019 Jkt 250001 (3) Closed areas, including midwater trawl restricted areas, other than spawning closures; * * * * * (37) River herring and shad Catch Cap Areas and Catch Cap Closure Areas; (38) Modifications to the ABC control rule in § 648.200, including, but not limited to, control rule parameters, if a quantitative stock assessment is not available, if the projections are PO 00000 Frm 00058 Fmt 4702 Sfmt 9990 producing ABCs that are not justified or consistent with available information, or if the stock requires a rebuilding program; and (39) Any other measure currently included in the FMP. * * * * * [FR Doc. 2019–21712 Filed 10–8–19; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\09OCP1.SGM 09OCP1

Agencies

[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Proposed Rules]
[Pages 54094-54101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21712]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 191001-0048]
RIN 0648-BI80


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

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

ACTION: Proposed rule, request for comments.

-----------------------------------------------------------------------

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

DATES: Public comments must be received by November 25, 2019.

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

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, phone: (978) 282-9272 or email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The goal of the Atlantic Herring Fishery Management Plan (FMP) is 
to manage the herring fishery at long-term sustainable levels and 
objectives of the FMP include providing for full utilization of the 
optimum yield (OY) and, to the extent practicable, controlled 
opportunities for participants in other New England and Mid-Atlantic 
fisheries. The Herring FMP describes OY as the amount of fish that will 
provide the greatest overall benefit to the Nation, particularly with 
respect to food production and recreational opportunities, taking into 
account the protection of marine ecosystems, including maintenance of a 
biomass that supports the ocean ecosystem, predator consumption of 
herring, and biologically sustainable human harvest. This includes 
recognition of the importance of herring as one of many forage species 
of fish, marine mammals, and birds in the Greater Atlantic Region. 
Consistent with these aims, the goals for Amendment 8 are to: (1) 
Account for the role of herring within the ecosystem, including its 
role as forage; (2) stabilize the fishery at a level designed to 
achieve OY; and (3) address localized depletion in inshore waters.

[[Page 54095]]

    On February 26, 2015 (80 FR 10458), the New England Fishery 
Management Council (Council) published a notice of intent (NOI) to 
prepare an EIS for Amendment 8 to consider long-term harvest strategies 
for herring, including an acceptable biological catch (ABC) control 
rule that addressed the biological and ecological requirements of the 
herring resource. The importance of herring as a forage species was 
underscored by the Council's specified intent to consider a wide range 
of ABC control rule alternatives, including those that explicitly 
account for herring's role in the ecosystem. The Council held scoping 
meetings during March and April of 2015 to solicit comments on ABC 
control rule alternatives.
    An ABC control rule is a formulaic approach for setting a harvest 
limit. For herring and other stocks with a defined overfishing limit 
(OFL), the ABC is reduced from the OFL by scientific uncertainty, such 
as uncertainty around stock size estimates, variability around 
estimates of recruitment, and consideration of ecosystem issues, so 
that the OFL will not be exceeded. The ABC control rule is developed by 
the Council to reflect its risk tolerance for not exceeding the OFL and 
provides guidance to the Council's Scientific and Statistical Committee 
for recommending annual ABCs based on the best available scientific 
information about stock status. The specific parameters of an ABC 
control rule are: (1) Upper biomass parameter; (2) maximum fishing 
mortality (F); and (3) lower biomass parameter. The values assigned to 
each of these parameters dictate the overall ``shape'' or function of 
the ABC control rule and determine whether F increases or decreases in 
response to the current estimate of stock biomass.
    The Council developed alternatives for a herring ABC control rule 
using a Management Strategy Evaluation (MSE). MSE is a decision-making 
tool that uses computer modeling to compare the performance of 
alternatives (i.e., management strategies) under various scenarios to 
achieve multiple, competing objectives. Because we do not have a 
complete understanding of the ocean ecosystem and all the sources of 
uncertainty, MSEs are useful to evaluate how alternatives perform under 
different environmental conditions. The Council held two public 
workshops to generate stakeholder input to help identify objectives for 
the MSE analysis. Input generated by the workshops was considered by 
the Council and, for the most part, adopted and included in Amendment 
8. The MSE used three models, a herring model, a predator model, and an 
economic model, to compare ABC control rule performance. The models 
simulated how well the ABC control rules achieved herring management 
objectives, such as biomass, yield, revenue, and predator 
considerations, under simulated environmental conditions related to 
herring growth, stock assessment bias, and productivity of herring. 
Results of the MSE informed the range of ABC control rule alternatives 
and impact analyses of those alternatives in Amendment 8.
    On August 21, 2015 (80 FR 50825), the Council published a 
supplemental NOI announcing it was expanding the scope of Amendment 8 
to consider localized depletion in inshore waters. The supplemental NOI 
defined localized depletion as harvesting more fish from an area than 
can be replaced within a given time period. It also explained the 
Council was seeking input from the interested public as to how to 
define, measure, and evaluate impacts, and minimize inshore, localized 
depletion in the herring fishery as part of Amendment 8. Public comment 
during the supplemental scoping made it clear that localized depletion 
concerns voiced by many stakeholders were not just related to the 
biological impacts of herring removals on the herring stock and on 
predators of herring. Public comment also indicated that impacts of 
localized depletion should be measured and evaluated relative to 
competing uses for the herring resource and potentially negative 
economic impacts on businesses that rely on predators of herring.
    The Council's interest in the localized depletion of herring 
extends back to the early development of the Herring FMP. Despite a 
lack of quantitative evidence demonstrating localized depletion, 
Amendment 1 to the Herring FMP (72 FR 11252, March 12, 2007) prohibited 
midwater trawling for herring in Herring Management Area 1A from June 
through September as a proactive measure to prevent potential negative 
impacts on the stock, the fishery, and predators of herring resulting 
from over harvesting in Area 1A.
    Ultimately, the Council's consideration of localized depletion in 
Amendment 8 included describing localized depletion as involving user 
group conflict and included both an evaluation of impacts of the user 
group conflict and consideration of competing interests for how herring 
should be used. The Council's concern with localized depletion and user 
group conflict is explained in this excerpt from the Council's April 
2016 problem statement: ``. . . concerns with concentrated, intense 
commercial fishing of Atlantic herring in specific areas and at certain 
times that cause detrimental socioeconomic impacts on other user groups 
(commercial, recreational, ecotourism) who depend upon adequate local 
availability of Atlantic herring to support business and recreational 
interests both at sea and on shore.'' The range of localized depletion 
and user group conflict alternatives in Amendment 8 were developed to 
address potential localized depletion of herring to minimize possible 
detrimental biological impacts on predators of herring and associated 
socioeconomic impacts on other user groups.
    A Notice of Availability (NOA) for Amendment 8 was published in the 
Federal Register on August 21, 2019 (84 FR 43573). The Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) allows 
us to approve, partially approve, or disapprove measures recommended by 
the Council in an amendment based on whether the measures are 
consistent with the fishery management plan, plan amendment, the 
Magnuson-Stevens Act and its National Standards, and other applicable 
law. The Council develops policy for its fisheries, and we defer to the 
Council on policy decisions unless those policies are inconsistent with 
the Magnuson-Steven Act or other applicable law. As such, we are 
seeking comments on whether measures in Amendment 8 are consistent with 
the Herring FMP, the Magnuson-Stevens Act and its National Standards, 
and other applicable law. The comment period for the NOA ends on 
October 21, 2019. Comments submitted on the NOA and/or this proposed 
rule prior to October 21, 2019, will be considered in our decision to 
approve, partially approve, or disapprove Amendment 8. We will consider 
comments received by the end of the comment period for this proposed 
rule November 25, 2019 in our decision to implement measures proposed 
by the Council.

Proposed Measures

    This rule proposes a long-term ABC control rule for herring. Under 
the proposed control rule, when biomass is at or above 50 percent of 
the biomass associated with maximum sustainable yield (BMSY) 
or its proxy, ABC is the catch associated with a maximum fishing 
mortality (F) of 80 percent of FMSY or its proxy. When 
biomass falls below 50 percent of BMSY or its proxy, F 
declines linearly to 0 at 10 percent of BMSY or its proxy. 
The control rule would set ABC for a three-year period

[[Page 54096]]

but would allow ABC to vary year-to-year in response to projected 
changes in biomass. This rule proposes that the control rule could be 
revised via a framework adjustment if a quantitative assessment is not 
available, if projections are producing ABCs that are not justified or 
consistent with available information, or if the stock requires a 
rebuilding program.
    The proposed control rule is intended to explicitly account for 
herring as forage in the ecosystem by limiting F to 80 percent of 
FMSY when biomass is high and setting it at zero when 
biomass is low. It is also intended to generate an ABC consistent with 
specific criteria identified by the Council, including low variation in 
yield, low probability of the stock becoming overfished, low 
probability of a fishery shutdown, and catch limits set at a relatively 
high proportion of MSY. The Council anticipates that short-term 
negative economic impacts on participants in the herring or lobster 
fisheries, resulting from a reduced herring harvest in response to low 
herring biomass, may become a long-term economic benefit for industry 
participants, especially if the proposed control rule results in low 
variation in yield, low probability of a fishery shutdown, and low 
probability of overfishing. Relative to other control rules considered 
by the Council, the proposed control rule is designed to more 
effectively balance the goal and objectives of the Herring FMP, 
including managing the fishery at long-term sustainable levels, taking 
forage for predators into account to support the ocean ecosystem, and 
providing a biologically sustainable harvest as a source of revenue for 
fishing communities and bait for the lobster fishery.
    Shortly before the Council took final action on Amendment 8, an 
updated stock assessment concluded that herring biomass is low, and the 
probability of overfishing and the stock becoming overfished is high. 
While not directly applicable to a long-term harvest policy, the 
Council noted that under herring's current condition of low biomass, 
setting catch more conservatively than status quo may increase the 
likelihood of stock growth. In turn, this would have positive impacts 
on the herring fishery, predators, and predator fisheries.
    This rule also proposes prohibiting the use of midwater trawl gear 
inshore of 12 nautical miles (22 km) from the U.S./Canada border to the 
Rhode Island/Connecticut border and inshore of 20 nautical miles (37 
km) off the east coast of Cape Cod. Specifically, federally permitted 
vessels would be prohibited from using, deploying, or fishing with 
midwater trawl gear within the inshore midwater trawl restricted area 
located shoreward of the 12-nautical mile (22-km) territorial sea 
boundary from Canada to Connecticut and within thirty-minute squares 
114 and 99 off Cape Cod (Figure 1). Midwater trawl vessels would be 
able to transit the inshore midwater trawl restricted gear area 
provided gear was stowed and not available for immediate use. The 
proposed measure would be in addition to the existing prohibition on 
midwater trawling for herring in Area 1A during June 1 through 
September 30.

[[Page 54097]]

[GRAPHIC] [TIFF OMITTED] TP09OC19.024

    The Council recommended the proposed inshore midwater trawl 
restricted area to minimize local depletion and user group conflict 
when midwater trawl vessels harvesting herring overlap with other user 
groups (i.e., commercial fisheries, recreational fisheries, ecotourism) 
that rely on herring as forage and provide inshore conservation 
benefits. The Council focused on midwater trawl gear to mitigate 
potential negative socioeconomic impacts on other user groups in 
response to short duration, high volume herring removals by midwater 
trawl vessels that are relatively more mobile and capable of fishing in 
offshore areas than vessels using other gear types. Information to 
quantify the impact of midwater trawling on other user groups is 
scarce, so the amendment analyzed the degree of overlap between 
midwater trawl vessels and other user groups. The proposed measure is 
intended to incorporate areas with a high degree of overlap between 
midwater trawl vessels and other user groups throughout the year. 
Specifically, it incorporates the overlap with predator fisheries in 
the Gulf of Maine and southern New England throughout the year, as well 
as the overlap with ecotourism and the tuna fishery in Area 1A during 
the fall. While overlap with the midwater trawl vessels does not 
necessarily translate into negative biological impacts on predators, 
less overlap may reduce potential user conflicts, provided midwater 
trawl effort does not shift into other areas and generate additional 
overlap.
    The Herring FMP specifies that herring research set-aside (RSA) can 
equal up to three percent of the sub-annual catch limit for a herring 
management area. This rule proposes that RSA compensation fishing using 
midwater trawl gear would be permitted within the inshore midwater 
trawl restricted area. The Council recommended permitting RSA 
compensation fishing within the inshore midwater trawl restricted area 
to help ensure the RSA would be harvested and those funds would be 
available to support the projects awarded RSA. Vessels engaged in 
herring RSA compensation fishing typically operate as authorized by an 
exempted fishing permit (EFP) so they can request exemptions from 
certain regulations that would otherwise restrict herring harvest. 
While vessels would be permitted to use midwater trawl gear within the 
inshore midwater trawl restricted area while RSA compensation fishing, 
it does not mean that compensations trips would be without 
restrictions. Terms and conditions of the EFP must be consistent with 
the Magnuson-Stevens Act, other applicable

[[Page 54098]]

law, and Herring FMP. Additionally, we would consider whether 
additional terms and conditions would be required for EFPs to ensure 
RSA compensation trips do not exacerbate the overlap between midwater 
trawl vessels and other user groups.
    This rule proposes that the inshore midwater trawl restricted area 
or new closures to address localized depletion and/or user group 
conflict could be modified or implemented via framework adjustment. The 
list of framework provisions at Sec.  648.206 already includes closed 
areas; this amendment would add the inshore midwater trawl restricted 
area to that list.
    The Council's recommendation to prohibit midwater trawling in 
inshore areas is an allocation decision intended to balance the needs 
of user groups and provide conservation benefits. Consistent with 
objectives in the Herring FMP, the proposed measure is intended to 
facilitate an efficient, fair, and equitable accommodation of social, 
economic, and ecological factors associated with achieving OY, in part 
by providing, to the extent practicable, controlled opportunities for 
participants in other New England and Mid-Atlantic fisheries. Because 
midwater trawl vessels historically harvested a larger percentage of 
herring than other gear types and are able to fish offshore, the 
Council recommended prohibiting them from inshore waters to help ensure 
herring was available inshore for other user groups and predators of 
herring. The proposed inshore midwater trawl restricted area is 
designed to be reasonably large enough to address the overlap between 
midwater trawl vessels and other user groups and, ultimately, user 
group conflict in inshore waters. This proposed measure is likely to 
negatively impact the midwater trawl fleet, with potentially increased 
trip costs and lower annual catches, but the Council believes that, on 
balance, the benefits to other user groups, such as potentially reduced 
trips costs, higher annual catches, and improved safety, outweigh the 
costs to midwater trawl vessels. The proposed measure may also have 
biological benefits if moving midwater trawl vessels offshore minimizes 
catch of river herring and shad, reduces fishing pressure on the 
inshore component of the herring stock, and helps ensure herring are 
available to predators. Herring is currently assessed as one stock, but 
it likely has stock components. Reducing fishing pressure inshore would 
benefit an inshore stock component. Analyses in Amendment 8 estimate 
that in recent years approximately 30 percent of the midwater trawl 
fleet's annualized revenue came from within the proposed inshore 
midwater trawl restricted area. Negative economic impacts on the 
midwater trawl fleet may be mitigated if the fleet is able to offset 
lost revenue from inshore areas with increased revenue from offshore 
areas. Herring catch limits are currently low, so the fishery has the 
capacity to harvest the OY. Recent midwater trawl landings (2007-2015) 
offshore of the proposed midwater trawl restricted area (36,903 mt) are 
much higher than the Council-recommended OY for 2020 and 2021 (11,621 
mt). In the longer-term, the fishery will likely adapt to be able 
harvest an increased OY, provided vessels are able to locate herring.

Proposed Clarifications

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

Classification

    Pursuant to section 304(a)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has made a preliminary determination that 
this proposed rule is consistent the Magnuson-Stevens Act and other 
applicable law. In making the final determination, we will consider the 
data, views, and comments received during the public comment period.
    This proposed rule has been preliminarily determined to be not 
significant for purposes of Executive Order (E.O.) 12866.
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared for 
this proposed rule, as required by section 603 of the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 603. The IRFA describes the economic 
impact that this proposed rule would have on small entities, including 
small businesses, and also determines ways to minimize these impacts.
    The IRFA includes this section of the preamble to this rule and 
analyses contained in Amendment 8 and its accompanying EIS/RIR/IRFA. A 
copy of the full analysis is available from the Council (see 
ADDRESSES). A summary of the IRFA follows.

Description of the Reason Why Action by the Agency Is Being Considered 
and Statement of the Objective of, and Legal Basis for, This Proposed 
Rule

    This action proposes management measures for the herring fishery. A 
complete description of the reasons why this action is being 
considered, and the objectives of and legal basis for this action, are 
contained in the preamble to this proposed rule and are not repeated 
here.

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

    Effective July 1, 2016, NMFS established a small business size 
standard of $11 million in annual gross receipts for all businesses 
primarily engaged in the commercial fishing

[[Page 54099]]

industry for RFA compliance purposes only (80 FR 81194, December 29, 
2015). A commercial fishing business is classified as a small business 
if it is independently owned and operated, is not dominant in its field 
of operation, and has combined annual receipts not in excess of $11 
million.
    This action would affect all permitted herring vessels; therefore, 
the direct regulated entity is a firm that owns at least one herring 
permit. There are many firms that hold an open-access (Category D) 
herring permit. These firms harvest only a small fraction of herring; 
furthermore, they are minimally affected by the regulations.
    As of June 1, 2018, there were 862 firms (852 small) that held at 
least one herring permit. There were 126 (123 small) active firms that 
held at least one herring permit. There were 101 (94 small) firms that 
held at least one limited access (Categories A, B, C) herring permit or 
a Category E open access herring permit. There were 53 (50 small) firms 
that held a limited access or Category E herring permit and were active 
in the herring fishery. Table 1 characterizes ``gross receipts'' and 
``herring receipts'' for firms that held a limited access or Category E 
open access herring permit. Table 2 characterizes ``gross receipts'' 
and ``herring receipts'' for firms that held a limited access or 
Category E open access herring permit and were active in the herring 
fishery. In both tables, the small entities are further characterized 
by gear type to facilitate comparisons. There are fewer than three 
large entities that use midwater trawl gear, so the description of the 
large entities is not disaggregated to gear type to preserve 
confidentiality under the Magnuson-Stevens Act. Table 3 characterizes 
``gross receipts'' and ``herring receipts'' for firms that held a 
herring permit and Table 4 characterizes ``gross receipts'' and 
``herring receipts'' for firms that held a herring permit and were 
active in the herring fishery. Tables 3 and 4 include firms with 
Category D open access herring permits that would be minimally impacted 
by this action.

   Table 1--Average Receipts From Firms With Limited Access and Category E Open Access Herring Permits in 2017
----------------------------------------------------------------------------------------------------------------
                                                                                                      Herring
               Firm size                     Firms                Gear            Gross receipts     receipts
----------------------------------------------------------------------------------------------------------------
Large.................................               7  All.....................     $20,396,374        $492,598
Small.................................               9  Midwater Trawl..........       2,499,646       1,241,225
Small.................................              85  Non-Midwater Trawl......       1,299,110         137,954
----------------------------------------------------------------------------------------------------------------
Source: NMFS.


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


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


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


[[Page 54100]]

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

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

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

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

Description of Significant Alternatives to the Proposed Action Which 
Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact on Small Entities

    When evaluating ABC control rule alternatives, Alternative 1 is the 
non-preferred alternative with potential to lessen economic impacts on 
small entities compared to the proposed measure. Alternative 1 is less 
conservative than the proposed ABC control rule and represents the 
interim control rule that was used to set herring ABC for 2016-2018. 
Analyses in Amendment 8 suggest the difference between the average ABCs 
under Alternative 1 (24,553 mt) and the proposed ABC control rule 
(22,685 mt) in the short-term (2019-2021) is less than 2,000 mt. Long-
term differences between the average ABCs resulting from Alternative 1 
and the proposed ABC control rule are expected to be minimal. Relative 
to Amendment 8's goal for an ABC control rule, F is lower under the 
proposed ABC control rule (80 percent of FMSY) than under 
Alternative 1 (90 percent of FMSY), therefore, the proposed 
ABC control rule likely better accounts for herring's role as forage in 
the ecosystem by limiting fishing than Alternative 1.
    When evaluating localized depletion and user group conflict 
alternatives, several of the non-preferred alternatives have the 
potential to lessen economic impacts on small entities compared to the 
proposed measure. The proposed measure would prohibit federally 
permitted vessels from fishing inshore with midwater trawl gear. Under 
the proposed measure, analyses in Amendment 8 estimate that herring 
revenue will decline by about 13 percent for small firms that use 
midwater trawl gear compared to the no action alternative. 
Additionally, under the proposed measure, small firms that use purse 
seine or bottom trawl gear may have revenue increases of 29 percent 
compared to the no action alternative. Negative economic impacts on 
midwater trawl vessels may be mitigated if vessels are able to catch a 
greater percentage of fish offshore or if they switch to purse seine or 
bottom trawl gear and continue to fish inshore. Relative to the goals 
in Amendment 8, the proposed action is expected to minimize potential 
localized depletion and user group conflict, by reducing the overlap 
between midwater trawl vessels and other user groups, better than the 
non-preferred alternatives that would minimize economic impacts on 
midwater trawl vessels.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: October 1, 2019.
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.  648.14, add paragraphs (r)(1)(vi)(H) and (I) to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (vi) * * *
    (H) Use, deploy, or fish with midwater trawl gear within the 
inshore midwater trawl restricted area as defined in Sec.  
648.202(a)(2), unless the vessel is on a declared research set-aside 
trip and operating as authorized by an exempted fishing permit or the 
vessel has not been issued a valid, Federal permit under this part and 
fishes exclusively in state waters.
    (I) Transit the inshore midwater trawl restricted area, defined in 
Sec.  648.202(a)(2), with midwater trawl gear onboard unless midwater 
trawl gear is stowed and not available for immediate use, as defined in 
Sec.  648.2 or the vessel has not been issued a valid, Federal permit 
under this part and fishes exclusively in state waters.
* * * * *
0
3. In Sec.  648.200, revise paragraphs (b)(1) through (3) to read as 
follows:


Sec.  648.200  Specifications.

* * * * *
    (b) * * *
    (1) OFL must be equal to catch resulting from applying the maximum 
fishing mortality threshold to a current or projected estimate of stock 
size. When the stock is not overfished and overfishing is not 
occurring, this is the fishing rate supporting maximum sustainable 
yield (FMSY or proxy). Catch that exceeds this amount would 
result in overfishing.
    (2) ABC must be less than the OFL. The Council's Scientific and 
Statistical Committee (SSC) shall recommend ABC to the Council by 
applying the ABC control rule in Sec.  648.200 and considering 
scientific uncertainty. Scientific uncertainty, including, but not 
limited to, uncertainty around stock size estimates, variability around 
estimates of recruitment, and consideration of ecosystem issues, shall 
be considered when setting ABC.
    (3) ACL must be equal to or less than the ABC. Management 
uncertainty, which includes, but is not limited to, expected catch of 
herring in the New Brunswick weir fishery and the uncertainty around 
discard estimates of herring caught in Federal and state waters, shall 
be considered when setting the ACL. Catch in excess of the ACL shall 
trigger accountability measures (AMs), as described in Sec.  
648.201(a).
* * * * *
0
4. In Sec.  648.202, revise paragraph (a) to read as follows:


Sec.  648.202  Season and area restrictions.

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

[[Page 54101]]

coastline and the following points, connected in the order listed by 
straight lines, unless otherwise noted:

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

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


Sec.  648.206  Framework provisions.

* * * * *
    (b) * * *
    (3) Closed areas, including midwater trawl restricted areas, other 
than spawning closures;
* * * * *
    (37) River herring and shad Catch Cap Areas and Catch Cap Closure 
Areas;
    (38) Modifications to the ABC control rule in Sec.  648.200, 
including, but not limited to, control rule parameters, if a 
quantitative stock assessment is not available, if the projections are 
producing ABCs that are not justified or consistent with available 
information, or if the stock requires a rebuilding program; and
    (39) Any other measure currently included in the FMP.
* * * * *
[FR Doc. 2019-21712 Filed 10-8-19; 8:45 am]
BILLING CODE 3510-22-P