Fisheries of the Northeastern United States; Atlantic Herring; Framework Adjustment 8, 17081-17086 [2021-06751]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 61 (Thursday, April 1, 2021)]
[Rules and Regulations]
[Pages 17081-17086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06751]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 210325-0071]
RIN 0648-BK11


Fisheries of the Northeastern United States; Atlantic Herring; 
Framework Adjustment 8

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

ACTION: Interim final rule; request for comments.

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

SUMMARY: This rule approves and implements the 2021-2023 Atlantic 
herring fishery specifications and management measures. Framework 
Adjustment 8 is required to set the specifications for 2021-2023 and 
adjusts measures in the herring fishery to allow greater opportunity to 
catch Atlantic mackerel. The specifications and management measures are 
intended to meet conservation objectives while providing vessels with 
sustainable levels of access to the fishery.

DATES: 
    Effective date: This action is effective March 29, 2021.
    Comments due date: Comments must be received on or before May 3, 
2021.

ADDRESSES: Copies of the analyses supporting this rulemaking, including 
the Framework Adjustment 8 environmental assessment (EA) prepared by 
the New England Fishery Management Council (Council) are available 
from: Thomas A. Nies, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950, 
telephone (978) 465-0492. The supporting documents are also accessible 
via the internet at: https://www.nefmc.org/management-plans/herring or 
https://www.regulations.gov.
    You may submit comments, identified by NOAA-NMFS-2021-0025, by the 
following method:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to www.regulations.gov and enter 
NOAA-NMFS-2021-0025 in the Search box. Click the ``Comment'' icon, 
complete the required fields, and Enter or attach your comments.
    Instructions: Comments sent by any other method or received after 
the end of the comment period, may not be considered by NMFS. All 
comments received are a part of the public record and will generally be 
posted for public viewing on www.regulations.gov without change. All 
personal identifying information (e.g., name, address, etc.), 
confidential business information, or otherwise sensitive information 
submitted voluntarily by the sender will be publicly accessible. NMFS 
will accept anonymous comments (enter ``N/A'' in the required fields if 
you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Aly Pitts, Fishery Management 
Specialist, (978) 281-9352.

SUPPLEMENTARY INFORMATION: 

Background

    Regulations implementing the Atlantic Herring Fishery Management 
Plan (FMP) appear at 50 CFR part 648, subpart K. The regulations at 
Sec.  648.200 require the Council to recommend herring specifications 
for NMFS' review and publication in the Federal Register, including: 
The overfishing limit (OFL); acceptable biological catch (ABC); annual 
catch limit (ACL); management uncertainty; optimum yield (OY); domestic 
annual harvest (DAH); domestic annual processing (DAP); U.S. at-sea 
processing; border transfer; the sub-ACL for each management area, 
including seasonal periods as allowed by Sec.  648.201(d) and 
modifications to sub-ACLs as allowed by Sec.  648.201(f); and the 
amount to be set aside for the research set aside (RSA) (0-3 percent of 
the sub-ACL from any management area) for up to 3 years. These 
regulations also provide the Council with the discretion to recommend 
river herring and shad catch caps as part of the specifications in 
addition to modifying the incidental possession limit during a closure 
of a sub-ACL and modifying seasonal area closures.
    The Magnuson-Stevens Fishery Conservation and Management Act (MSA) 
permits NMFS to approve, partially approve, or disapprove measures 
proposed by the Council based only on whether the measures are 
consistent with the fishery management plan, plan amendment, the MSA 
and its National Standards, and other applicable law. We intended to 
propose measures recommended by the Council in September 2020. However, 
given the greatly reduced catch limits in the

[[Page 17082]]

specifications, and in order to avoid potential overages that may occur 
at the start of the fishing year while higher specifications are in 
place, we are approving and implementing the 2021-2023 herring 
specifications and other management measures recommended by the Council 
through this interim final rule. We are requesting public comments on 
this action following the rule's publication.
    The Northeast Fisheries Science Center (NEFSC) completed a 
management track assessment of the Atlantic herring stock in June 2020. 
This assessment showed that the stock is now overfished, but 
overfishing is not occurring. This is a change from the previous 
assessment in 2018 that indicated the stock was approaching an 
overfished condition, and overfishing was not occurring. Recruitment 
continues to be at historic low levels. Based on these results, NMFS 
officially notified the Council that the stock was declared overfished 
in early October 2020 following the Council's final action on Framework 
8 in September 2020, and requested the Council develop rebuilding 
measures. The NEFSC will conduct a new herring management track 
assessment in 2022. This assessment will reassess projected biomass and 
recruitment trends and will be used to set herring specifications for 
2023-2025. The specifications associated with this action estimate that 
overall herring biomass is expected to remain at relatively low levels 
in the next few years. The probability of the stock remaining 
overfished is relatively high under all alternatives considered for 
this action.

2021-2023 Atlantic Herring Specifications

    Based on the findings of the June 2020 management track assessment, 
the Council recommended the 2021-2023 specifications for the herring 
fishery at its September 30, 2020, meeting. This rule implements the 
specifications detailed in Table 1, as recommended by the Council.

                               Table 1--2021-2023 Atlantic Herring Specifications
                                                      [mt]
----------------------------------------------------------------------------------------------------------------
                          Specification                                2021            2022            2023
----------------------------------------------------------------------------------------------------------------
OFL.............................................................          23,423          26,292          44,600
ABC.............................................................           9,483           8,767           8,767
Management Uncertainty..........................................           4,669           4,669           4,669
OY/ACL..........................................................         * 4,814         * 4,098         * 4,098
DAH.............................................................           4,814           4,098           4,098
Border Transfer.................................................               0               0               0
DAP.............................................................           4,814           4,098           4,098
U.S. At-Sea Processing..........................................               0               0               0
Area 1A sub-ACL (28.9%).........................................         * 1,391         * 1,184         * 1,184
Area 1B sub-ACL (4.3%)..........................................             207             176             176
Area 2 sub-ACL (27.8%)..........................................           1,338           1,139           1,139
Area 3 sub-ACL (39%)............................................           1,877           1,598           1,598
Fixed Gear Set-Aside............................................              30              30              30
Research Set-Aside as percentage of sub-ACL.....................            ** 0               0           *** 0
----------------------------------------------------------------------------------------------------------------
* If New Brunswick weir landings are less than 3,012 mt through October 1, then 1,000 mt will be subtracted from
  the management uncertainty buffer and reallocated to the Area 1A sub-ACL and ACL. Thus, the Area 1A sub-ACL
  would increase to 2,391 mt, and the ACL would increase to 5,814 mt in 2021.
** Because the RSA participants will not be pursing RSA, we will not deduct it from the sub-ACLs.
*** RSA will to be revisited for 2023-2025 specifications.

    Several factors contributed to the Council's ABC recommendations 
for 2021-2023. The ABC is reduced from the OFL to account for 
scientific uncertainty. The Council's Scientific and Statistical 
Committee (SSC) and the Council determined that a conservative method 
of management, specifically one that accounts for scientific 
uncertainty, was essential due to the current status of the herring 
stock and the uncertainty surrounding estimates of biomass and 
recruitment. The SSC and the Council recommended a herring ABC of 9,483 
mt for 2021 and 8,757 mt for 2022-2023 based on the control rule 
approved in Amendment 8 that reduces the available harvest to 
explicitly account for herring's role as forage in the ecosystem. The 
original projection for the 2023 ABC was 11,025 mt; however, the SSC 
and Council recommended reducing the ABC for 2023 to better address 
uncertainties in the projection estimates. For comparison, the proposed 
2021 ABC is 51-percent lower than that currently in place for 2021.
    The ACL is reduced from the ABC to account for management 
uncertainty. Currently, although the FMP allows for consideration of 
other aspects of management uncertainty (e.g., uncertainty around 
discard estimates of herring caught in Federal and state waters), the 
only source for management uncertainty that is applied to the 2021-2023 
ABCs are landings in the New Brunswick weir fishery. Catch in the New 
Brunswick weir fishery is variable but has declined in recent years. 
After considering a range of management uncertainty buffers, the 
Council recommended a buffer of 4,669 mt, consistent with average 
landings in the New Brunswick weir fishery over the last 10 years. The 
Council selected this method in Framework 6 (85 FR 26874, May 6, 2020) 
for setting the 2019-2021 specifications to account for variability in 
this fishery as well. The resulting ACLs are 4,814 mt for 2021 and 
4,098 mt for 2022-2023.
    The Council also recommended a provision that if weir fishery 
landings are less than 3,012 mt through October 1, NMFS would subtract 
1,000 mt from the management uncertainty buffer and reallocate that 
1,000 mt to the Area 1A sub-ACL and ACL. Currently, this provision is 
allowed if New Brunswick weir landings are less than 2,942 mt through 
October 1. The updated landings estimate is based on the most recent 
landings data. There is no trend in recent New Brunswick weir landings; 
using a 10-year average is intended to reflect the variability of the 
fishery. This action implements these adjustments to the weir fishery 
reallocation provision.

Border Transfer

    Border Transfer is a processing allocation available to Canadian 
dealers that is included in, and does not reduce, the domestic catch 
limits. The MSA

[[Page 17083]]

provides for the issuance of permits to Canadian vessels transporting 
U.S. harvested herring to Canada for sardine processing. This action 
sets a 0-mt specification for border transfer for 2021-2023. Incentives 
are currently low to transfer fish to Canadian vessels and this 
allocation can be revisited in the future.

Research Set-Aside

    During 2019-2021, the herring research set-aside (RSA) for each 
management area was set to 3 percent of each area's sub-ACL. Any 
unallocated or unused RSA is re-allocated to the sub-ACL and made 
available to the fleet before the end of the fishing year in accordance 
with the Administrative Procedure Act, provided that the RSA can be 
available for harvest before the end of the fishing year for which the 
RSA is specified. The Council recommended setting aside 3 percent of 
each sub-ACL for 2021 RSA, but zero percent for 2022 and 2023. Because 
an RSA award was granted using 2021 RSA, this set-aside recommendation 
would support that previously approved project. However, with recent 
sub-ACL reductions, it has been difficult to harvest RSA, and it may be 
more beneficial to have that allocation applied directly to the herring 
fishery while catch limits are so low. The participants in the RSA 
program will not continue their RSA project in 2021. Regulations at 
Sec.  648.207(g) require that we reallocate any unallocated or unused 
RSA amount to the respective sub-ACL(s) if we determine that the RSA 
cannot be utilized by a project. As a result, we will not specify RSA 
for 2021 and instead will apply the RSA allocation directly to the sub-
ACLs. The Council recently conducted a review of all RSA programs in 
this region and the report highlighted several modifications that could 
be made to the herring RSA program to improve its effectiveness. 
Herring specifications are currently being set every two years, and 
herring RSA awards have recently been granted on 3-year cycles. A pause 
in the program provides time to sync the RSA program with the 
specifications cycle and potentially address other issues with the 
herring RSA program. Future specifications packages can adjust these 
percentages up to 3 percent, and the Council will reevaluate this 
decision when considering revisions to the 2023 specifications and 
beyond following the results of the next assessment.

River Herring and Shad Catch Caps

    This action maintains status quo river herring and shad catch caps 
for 2021-2023 (see Table 2). These catch caps were originally set for 
the fishery in the 2016-2018 specifications, and were maintained in 
2019 and 2020. Catch is tracked against river herring and shad catch 
caps on trips landing more than 6,600 lb (3,000 kg) of herring. Once a 
catch cap is reached, the possession limit for herring vessels using 
that gear type and fishing in that area (or the corresponding catch cap 
closure area) is reduced to 2,000 lb (907 kg) of herring for the 
remainder of the fishing year. These caps are intended to meet the 
original catch cap goals to provide a strong incentive for the herring 
fleet to continue to reduce river herring and shad catch, while 
allowing the fleet to fully harvest the herring ACL.

          Table 2--2021-2023 River Herring and Shad Catch Caps
                                  [mt]
------------------------------------------------------------------------
                         Catch caps                            2021-2023
------------------------------------------------------------------------
Midwater Trawl Gulf of Maine................................        76.7
Midwater Trawl Cape Cod.....................................        32.4
Midwater Trawl Southern New England and Mid-Atlantic........       129.6
Bottom Trawl Southern New England and Mid-Atlantic..........       122.3
------------------------------------------------------------------------

Carryover

    Currently, regulations at Sec.  648.201 require that up to 10 
percent of the unharvested catch in a herring management area shall be 
carried over and added to that area's sub-ACL for the fishing year 
following when total catch is determined. This carryover increases the 
sub-ACL for that management area, but it does not increase the total 
ACL. Under Framework 6, NMFS temporarily suspended the carryover of 
unharvested catch for 2020 and 2021 because the amount of carryover was 
substantial relative to the reduced ACLs. Carryover of higher amounts 
of unharvested quota from 2018 relative to lower sub-ACLs in 2020 could 
have had potentially negative unintended consequences on some 
participants in the fishery that fish in different areas and seasons. 
This action maintains the automatic carryover of unharvested catch but 
changes the amount from up to 10 percent to up to 5 percent of each 
sub-ACL. The 5 percent carryover is expected to benefit the herring 
fleet with sub-ACL increases, while resulting in a reduced risk of 
potential negative consequences on the herring resource than the 
amounts carried over at 10 percent. Specifically, up to 5 percent of 
each area's sub-ACL in 2019 or 2020 would automatically rollover and be 
added to the sub-ACL for each herring management area in 2021 and 2022, 
respectively. For example, the 2021 the Area 1A sub-ACL increases by 
218 mt (5 percent of the 2019 sub-ACL), which is an 18-percent increase 
of the 2021 sub-ACL. This benefit is broken down in Table 3 below. The 
overall ACL would not increase due to any carryover from a previous 
year. After the 2022 fishing year ends, the 5-percent automatic 
carryover would expire, and it would revert to up to 10 percent unless 
modified by a future action.

                                           Table 3--Summary of 2019 Sub-ACLs and Catch and Carryover for 2021
                                                                          [mt]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                    Carryover
                                                      2019         2019                  2019  Catch      2019       for 2021       2021         2021
                      Area                          Initial      Adjusted   2019  Final    (percent    Underages/   (5 percent    Initial      Adjusted
                                                    sub-ACL      sub-ACLs      catch     of sub-ACL)    overages   of 2019 sub-   sub-ACLs     sub-ACLs
                                                                                                                       ACL)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1A..............................................        4,354        5,223        4,916           94          307          218        1,391        1,609
1B..............................................          647          628          159           25          469           32          207          239
2 *.............................................        4,188        4,062        4,748          117         -686           NA        1,338          652
3...............................................        5,876        5,700        3,523           57        2,117          294        1,887        2,181
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Area 2 will be reduced in 2021 due an overage in that area in 2019.


[[Page 17084]]

    The Council recommended status quo methods to set all other herring 
specifications, including DAH, DAP, U.S. at-sea processing, fixed gear 
set-aside, and management area sub-ACLs.

Other Measures

    There are two measures in this rule intended to provide more 
opportunities for the herring and mackerel fisheries to achieve optimum 
yield by providing flexibility for the herring fleet to access the 
Atlantic mackerel resource during a sub-ACL closure, given the reduced 
sub-ACLs. These measures adjust the herring incidental catch possession 
limit in Areas 2 and 3 and eliminate the seasonal closure of Area 1B 
from January through April. While the sub-ACLs are reduced with this 
action due to the status of the resource, increasing the incidental 
possession limit allows for conservation of the resource as there is 
management uncertainty included in the specifications to avoid an 
overage.
    The regulations at Sec.  648.201 currently specify a 2,000-lb (907-
kg) herring incidental catch possession limit per trip or calendar day 
when 92 percent of the sub-ACL for a herring management area (Area 1A, 
1B, 2 and 3) or 95 percent of the total ACL for the herring fishery is 
projected to be caught. This possession limit makes it challenging to 
target mackerel during a sub-ACL directed fishery closure, especially 
in certain areas and seasons when herring and mackerel mix. These in-
season herring possession limits apply to both limited access and open 
access herring permit holders. Vessels with limited access herring 
permits are not subject to a herring possession limit unless one of 
these triggers is met in-season.
    This action implements a two-step incidental possession limit with 
similar incidental possession limits as in the Atlantic mackerel 
fishery for herring Management Areas 2 and 3 while making no changes to 
the Management Area 1A and 1B possession limits or closure triggers. 
The measures in this rule set a higher initial possession limit of 
40,000 lb (18,144 kg) per trip or calendar day that will be implemented 
when the fishery is projected to catch a lower closure trigger 
threshold of 90 percent of the Area 2 or 3 sub-ACL. The next closure 
trigger, setting the possession limit at 2,000 lb (907 kg) per trip or 
calendar day, will be implemented when the herring fishery is projected 
to catch 98 percent of the sub-ACL in Area 2 or 3. This two-step 
process is intended to slow the directed herring fishery while allowing 
vessels access to mackerel in the same areas. This measure will be in 
place until adjusted by a future Council action.
    During development of Framework 8, NMFS cautioned that while this 
two-step process may offer herring vessels more access to herring when 
fishing for mackerel in the future when herring sub-ACLs are higher, 
the benefits may not be realized during times when sub-ACLs are low. 
Despite the lower sub-ACLs, the increase in the initial incidental 
possession limit is not expected to result in exceeding the ABC or 
result in overfishing. The reduced sub-ACLs in this action still take 
into account management uncertainty. Also, we expect our ability to 
monitor and project catch and implement possession limit adjustments 
with low sub-ACLs in a high volume fishery in a timely manner may 
require us to bypass implementing the 40,000-lb (18,144-kg) incidental 
possession limit and quickly implement the 2,000-lb (907-kg) possession 
limit to avoid overages and an increased risk of exceeding the ABC. Our 
management of Areas 1A and 1B is expected to be consistent with our 
past experience as this action makes no changes to the current 
possession limit adjustment triggers in Areas 1A and 1B and maintains 
the requirement to adjust to a 2,000-lb (907-kg) limit for all areas 
when 95 percent of the total ACL for the herring fishery is projected 
to be caught.
    This action also removes the seasonal closure of Area 1B from 
January-April. The seasonal closure of Area 1B from January-April 
prevents vessels from targeting herring and other species. Atlantic 
mackerel have been known to migrate through Area 1B during this time as 
they leave the Mid-Atlantic and head north in the spring. Providing 
herring fleet access to Area 1B earlier in the year could improve 
access to Atlantic mackerel overall.

Regulation Clarifications

    We are modifying the regulations for fisheries of the Northeastern 
United States under the authority of section 305(d) to the MSA which 
provides that the Secretary of Commerce may promulgate regulations 
necessary to carry out an FMP or the Magnuson-Stevens Act. 
Specifically, at Sec.  648.202, this rule clarifies that the 
restriction on using midwater trawl gear in Management Area 1A during 
June through September applies to all midwater trawl gear, not just 
those fishing for herring. The Council is supportive of this 
clarification.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Acting 
Assistant Administrator (AA) has preliminarily determined that this 
rule is consistent with the Herring FMP, other provisions of the MSA, 
and other applicable law, subject to further consideration after public 
comment.
    The Acting AA finds that prior notice and the opportunity for 
public comment, pursuant to authority set forth at 5 U.S.C. 553(b)(B), 
would be contrary to the public interest. The Council's recommendations 
for Framework 8 adopted at its September meeting and later submitted to 
NMFS prevented NMFS from publishing a proposed and final rule in time 
to implement final measures by January 1, 2021, which is the start of 
the fishing year. This rule sets the specifications for 2021-2023, 
which are greatly reduced from the current sub-ACLs. If these 
specifications are not set as close to the start of the fishing year as 
possible, there is a risk of an overage in the sub-ACLs, ACL, and ABC 
that will be set by this action, which would further impede 
conservation of the herring resource. Any overages would be required to 
be reduced from next year's corresponding catch limits, reducing 
fishing opportunities next year. This action also includes measures to 
mitigate adverse economic impacts from lost opportunities to fish due 
to the reduced sub-ACLs by revising measures that would allow for the 
herring fleet to access the Atlantic mackerel resource during a sub-ACL 
closure. Directed fishery area closures can happen quickly in this 
high-volume fishery when the sub-ACLs are this low. Implementing these 
measures as quickly as possible will provide the industry greater 
opportunity to realize the intended benefits of these measures. The 
public is anticipating these measures, since the recommendations were 
voted on by the Council at the September meeting. The delay required 
for comments on these measures prior to their implementation would 
undermine the resource conservation and economic benefit intended by 
these measures. We are still soliciting and accepting additional public 
comments on this rule. For these reasons, prior notice and the 
opportunity for public comment, pursuant to authority set forth at 
U.S.C. 553(b)(B), would be contrary to the public interest.
    Similarly, the need to implement these measures in a timely manner 
to put this interim final rule in place as close to January 1, 2021, as 
possible constitutes good cause under authority contained in 5 U.S.C. 
553(d)(3), to establish an effective date less than 30 days after date 
of publication. These measures promote conservation goals of the FMP 
and allow for flexibility to herring vessels to access the Atlantic 
mackerel resource during a seasonal

[[Page 17085]]

closure of the directed herring fishery. Delay in implementing this 
rule would put the herring resource at risk for further depletion in 
addition to preventing the herring fleet from access to mackerel in the 
event of a sub-ACL directed fishery area closure.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    This interim final rule is exempt from the procedures of the 
Regulatory Flexibility Act because the rule is issued without 
opportunity for prior notice and opportunity for public comment.
    This interim rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 29, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.14, revise paragraph (r)(1)(ii)(B) to read as follows:


Sec.  648.14   Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (ii) * * *
    (B) Attempt or do any of the following: Fish for, possess, 
transfer, receive, or sell; more than the possession limits specified 
at Sec.  648.201(a) during a management area closure, or from a river 
herring and shad catch cap closure area that has been closed to 
specified gear pursuant to Sec.  648.201(a)(4)(ii), if the vessel has 
been issued and holds a valid herring permit.
* * * * *

0
3. In Sec.  648.201, revise paragraphs (a)(1)(i) and (ii), (b), (c), 
(d)(2), (g)(1) and (2), and (h) to read as follows:


Sec.  648.201   AMs and harvest controls.

    (a) * * *
    (1) * * *
    (i) Management area closure. (A) Areas 1A and 1B. If NMFS projects 
that catch from Area 1A or 1B will reach 92 percent of the annual sub-
ACL allocated to Area 1A or Area 1B, before the end of the fishing 
year, or 92 percent of the Area 1A sub-ACL allocated to the seasonal 
period as set forth in paragraph (d) of this section, beginning the 
date the catch is projected to reach 92 percent of the sub-ACL, vessels 
may not attempt or do any of the following: Fish for, possess, catch, 
transfer, or land more than 2,000 lb (907.2 kg) of Atlantic herring per 
trip in or from the applicable area, and from landing herring more than 
once per calendar day, except as provided in paragraphs (b) and (c) of 
this section. NMFS shall implement these restrictions in accordance 
with the APA.
    (B) Areas 2 and 3. (1) Incidental Possession Limit Adjustment--
Phase 1. If NMFS projects that catch from Area 2 or Area 3 will reach 
90 percent of the annual sub-ACL allocated to Area 2 or Area 3 before 
the end of the fishing year, beginning the date the catch is projected 
to reach 90 percent of the applicable sub-ACL, vessels may not attempt 
or do any of the following: Fish for, possess, catch, transfer, or land 
more than 40,000 lb (18,143.7 kg) of Atlantic herring per trip in or 
from the applicable area, and from landing herring more than once per 
calendar day, except as provided in paragraphs (b) and (c) of this 
section. NMFS shall implement these restrictions in accordance with the 
APA.
    (2) Incidental Possession Limit Adjustment--Phase 2. If NMFS 
projects that catch will reach 98 percent of the annual sub-ACL 
allocated to Area 2 or Area 3 before the end of the fishing year, 
beginning the date the catch is projected to reach 98 percent of the 
sub-ACL, vessels may not fish for, possess, catch, transfer, or land 
more than 2,000 lb (907.2 kg) of Atlantic herring per trip in the 
applicable area, and from landing herring more than once per calendar 
day, except as provided in paragraphs (b) and (c) of this section. NMFS 
shall implement these restrictions in accordance with the APA.
    (ii) Herring fishery closure. If NMFS projects that catch will 
reach 95 percent of the ACL before the end of the fishing year, 
beginning the date the catch is projected to reach 95 percent of the 
ACL, vessels may not attempt or do any of the following: Fish for, 
possess, catch, transfer, or land more than 2,000 lb (907.2 kg) of 
Atlantic herring per trip in all herring management areas, and from 
landing herring more than once per calendar day, except as provided in 
paragraphs (b) and (c) of this section. NMFS shall implement these 
restrictions in accordance with the APA.
* * * * *
    (b) A vessel may transit an area that is limited to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section with less than 2,000 lb (907.2 kg) or 
less than 40,000 lb (18,143.7 kg) of herring on board, provided such 
herring were caught in an area or areas not subject to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section, and that all fishing gear is stowed and 
not available for immediate use as defined in Sec.  648.2, and provided 
the vessel is issued a vessel permit appropriate to the amount of 
herring on board and the area where the herring was harvested.
    (c) A vessel may land in an area that is limited to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section with less than 2,000 lb (907.2 kg) or 
less than 40,000 lb (18,143.7 kg) of herring on board, provided such 
herring were caught in an area or areas not subject to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section, and that all fishing gear is stowed and 
not available for immediate use as defined in Sec.  648.2, and provided 
the vessel is issued a vessel permit appropriate to the amount of 
herring on board and the area where the herring was harvested.
* * * * *
    (d) * * *
    (2) Area 1B: 100 percent available for harvest during January-
December.
* * * * *
    (g) * * *
    (1) Subject to the conditions described in this paragraph (g), 
unharvested catch in a herring management area in a fishing year (up to 
10 percent of that area's sub-ACL) shall be carried over and added to 
the sub-ACL for that herring management area for the fishing year 
following the year when total catch is determined. For example, NMFS 
will determine total catch from Year 1 during Year 2, and will add 
carryover to the applicable sub-ACL(s) in Year 3. All such carryover 
shall be based on the herring management area's initial sub-ACL 
allocation for the fishing year, not the sub-ACL as increased by 
carryover or decreased by an overage deduction, as specified in 
paragraph (a)(3) of this section. All herring caught from a herring 
management area shall count against that area's sub-ACL, as increased 
by carryover. For example, if 100 mt of herring is added as carryover 
from Year 1 to a 5,000 mt sub-ACL in Year 3, catch in that management 
area would be tracked against a total sub-ACL of 5,100 mt. NMFS shall 
add sub-ACL carryover only if the ACL, specified consistent

[[Page 17086]]

with Sec.  648.200(b)(3), for the fishing year in which there is 
unharvested herring, is not exceeded. The ACL, consistent with Sec.  
648.200(b)(3), shall not be increased by carryover specified in this 
paragraph (g).
    (2) Carryover of unharvested catch to any herring management area's 
sub-ACL in the 2021 and 2022 herring fishing years, as described in 
this paragraph (g), shall be limited to 5 percent of unharvested catch 
in the 2019 and 2020 fishing years.
    (h) If NMFS determines that the New Brunswick weir fishery landed 
less than 3,012 mt of herring through October 1, NMFS will subtract 
1,000 mt from management uncertainty and reallocate that 1,000 mt to 
the ACL and Area 1A sub-ACL. NMFS will notify the Council of this 
adjustment and publish the adjustment in the Federal Register.
* * * * *

0
4. In Sec.  648.202, revise paragraphs (a)(1) and (2) introductory text 
to read as follows:


Sec.  648.202   Season and area restrictions.

    (a) * * *
    (1) Area 1A. Federally permitted vessels fishing 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. coastline and the following points, 
connected in the order listed by straight lines, unless otherwise 
noted:
* * * * *
[FR Doc. 2021-06751 Filed 3-29-21; 4:15 pm]
BILLING CODE 3510-22-P