1810 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

SUMMARY: Pursuant to the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015, this final 

rule provides the 2021 adjustment to the 

civil penalties that the agency may 

assess against a person for violating 

certain NTSB statutes and regulations. 

DATES: This final rule is effective on 

January 11, 2021. 

ADDRESSES: A copy of this final rule, 

published in the Federal Register (FR), 

is available at http://

www.regulations.gov (Docket ID Number 

NTSB–2021–0001). 

FOR FURTHER INFORMATION CONTACT: 

Kathleen Silbaugh, General Counsel, 

(202) 314–6080 or rulemaking@ntsb.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (the 2015 Act) requires, in 

pertinent part, agencies to make an 

annual adjustment for inflation by 

January 15th every year. OMB, M–16– 

06, Implementation of the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015 (Feb. 24, 

2016). The Office of Management and 

Budget (OMB) annually publishes 

guidance on the adjustment multiplier 

to assist agencies in calculating the 

mandatory annual adjustments for 

inflation. 

The NTSB’s most recent adjustment 

was for fiscal year (FY) 2020, allowing 

the agency to impose a civil penalty up 

to $1,722, effective January 15, 2020, on 

a person who violates 49 U.S.C. 1132 

(Civil aircraft accident investigations), 

1134(b) (Inspection, testing, 

preservation, and moving of aircraft and 

parts), 1134(f)(1) (Autopsies), or 1136(g) 

(Prohibited actions when providing 

assistance to families of passengers 

involved in aircraft accidents). Civil 

Monetary Penalty Annual Inflation 

Adjustment, 85 FR 2319 (Jan. 15, 2020). 

OMB has since published updated 

guidance for FY 2021. OMB, M–21–10, 

Implementation of Penalty Inflation 

Adjustments for 2021, Pursuant to the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (Dec. 23, 2020). Accordingly, this 

final rule reflects the NTSB’s 2021 

annual inflation adjustment and updates 

the maximum civil penalty from $1,722 

to $1,742. 

II. The 2021 Annual Adjustment 

The 2021 annual adjustment is 

calculated by multiplying the applicable 

maximum civil penalty amount by the 

cost-of-living adjustment multiplier, 

which is based on the Consumer Price 

Index and rounding to the nearest 

dollar. OMB, M–21–10, Implementation 

of Penalty Inflation Adjustments for 

2021, Pursuant to the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015 (Dec. 23, 

2020). For FY 2021, OMB’s guidance 

states that the cost-of-living adjustment 

multiplier is 1.01182. 

Accordingly, multiplying the current 

penalty of $1,722 by 1.01182 equals 

$1,742.35, which rounded to the nearest 

dollar equals $1,742. This updated 

maximum penalty for the upcoming 

fiscal year applies only to civil penalties 

assessed after the effective date of the 

final rule. The next civil penalty 

adjustment for inflation will be 

calculated by January 15, 2022. 

III. Regulatory Analysis 

The Office of Information and 

Regulatory Affairs Administrator has 

determined agency regulations that 

exclusively implement the annual 

adjustment are consistent with OMB’s 

annual guidance, and have an annual 

impact of less than $100 million are 

generally not significant regulatory 

actions under Executive Order (E.O.) 

12866. OMB, M–21–10, Implementation 

of Penalty Inflation Adjustments for 

2021, Pursuant to the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015 (Dec. 23, 

2020). An assessment of its potential 

costs and benefits under E.O. 12866, 

Regulatory Planning and Review and 

E.O. 13563, Improving Regulation and 

Regulatory Review is not required 

because this final rule is not a 

‘‘significant regulatory action.’’ 

Likewise, this rule does not require 

analyses under the Unfunded Mandates 

Reform Act of 1995 and E.O. 13771, 

Reducing Regulation and Controlling 

Regulatory Costs because this final rule 

is nonsignificant. 

The NTSB does not anticipate this 

rule will have a substantial direct effect 

on state government or will preempt 

state law. Accordingly, this rule does 

not have implications for federalism 

under E.O. 13132, Federalism. 

The NTSB also evaluated this rule 

under E.O. 13175, Consultation and 

Coordination with Indian Tribal 

Governments. The agency has 

concluded that this final rule will not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

The Paperwork Reduction Act of 1995 

is inapplicable because the final rule 

imposes no new information reporting 

or recordkeeping necessitating clearance 

by OMB. 

The Regulatory Flexibility Act of 1980 

does not apply because, as a final rule, 

this action is not subject to prior notice 

and comment. See 5 U.S.C. 604(a). 

The NTSB has concluded that this 

final rule neither violates nor requires 

further consideration under the 

aforementioned Executive orders and 

Acts. 

List of Subjects in 49 CFR Part 831 

Aircraft accidents, Aircraft incidents, 

Aviation safety, Hazardous materials 

transportation, Highway safety, 

Investigations, Marine safety, Pipeline 

safety, Railroad safety. 

Accordingly, for the reasons stated in 

the preamble, the NTSB amends 49 CFR 

part 831 as follows: 

PART 831—INVESTIGATION 

PROCEDURES 

■ 1. The authority citation for part 831 

continues to read as follows: 

Authority: 49 U.S.C. 1113(f). 

Section 831.15 also issued under Pub. L. 

101–410, 104 Stat. 890, amended by Pub. L. 

114–74, sec. 701, 129 Stat. 584 (28 U.S.C. 

2461 note). 

§ 831.15 [Amended] 

■ 2. Amend § 831.15 by removing the 

dollar amount ‘‘$1,722’’ and adding in 

its place ‘‘$1,742’’. 

Robert L. Sumwalt III, 

Chairman. 

[FR Doc. 2021–00060 Filed 1–8–21; 8:45 am] 

BILLING CODE 7533–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 221228–0362] 

RIN 0648–BI80 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; 

Amendment 8 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This rule implements 

Amendment 8 to the Atlantic Herring 

Fishery Management Plan. This 

amendment specifies a long-term 

acceptable biological catch control rule 

for herring and addresses localized 


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Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 1811 

depletion and user group conflict. It also 

establishes an acceptable biological 

catch control rule that accounts for 

herring’s role in the ecosystem and 

prohibits midwater trawling in inshore 

federal waters from the U.S./Canada 

border to the Rhode Island/Connecticut 

border. Amendment 8 supports 

sustainable management of the herring 

resource and seeks to ensure that 

herring is available to minimize possible 

detrimental biological impacts on 

predators of herring and associated 

socioeconomic impacts on other user 

groups. 

DATES: Effective February 10, 2021. 

ADDRESSES: Copies of Amendment 8, 

including the Environmental Impact 

Statement, the Regulatory Impact 

Review, and the Initial Regulatory 

Flexibility Analysis (EIS/RIR/IRFA) 

prepared in support of this action are 

available from Thomas A. Nies, 

Executive Director, New England 

Fishery Management Council, 50 Water 

Street, Mill 2, Newburyport, MA 01950. 

The supporting documents are also 

accessible via the internet at: http://

www.nefmc.org. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Nordeen, Fishery Policy Analyst, 

phone: (978) 282–9272 or email: 

Carrie.Nordeen@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The goal of the Atlantic Herring 

Fishery Management Plan (FMP) is to 

manage the herring fishery at long-term 

sustainable levels, and objectives of the 

FMP include providing for full 

utilization of the optimum yield (OY) 

and, to the extent practicable, controlled 

opportunities for participants in other 

New England and Mid-Atlantic 

fisheries. Consistent with the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

definition of OY, the Herring FMP 

describes OY as the amount of fish that 

will provide the greatest overall benefit 

to the Nation, particularly with respect 

to food production and recreational 

opportunities, taking into account the 

protection of marine ecosystems, 

including maintenance of a biomass that 

supports the ocean ecosystem, predator 

consumption of herring, and 

biologically sustainable human harvest. 

The Magnuson-Stevens Act further 

provides that OY is the maximum 

sustainable yield (MSY) from the fishery 

as reduced by any relevant economic, 

social, or ecological factor. In the 

Herring FMP, this includes recognition 

of the importance of herring as forage 

for fish, marine mammals, and birds in 

the Greater Atlantic Region. Consistent 

with these aims, the goals for 

Amendment 8 are to: (1) Account for the 

role of herring within the ecosystem, 

including its role as forage; (2) stabilize 

the fishery at a level designed to achieve 

OY; and (3) address localized depletion 

in inshore waters. 

An acceptable biological catch (ABC) 

control rule is a formulaic approach for 

setting a harvest limit that reflects the 

FMP’s harvest policy. For herring and 

other stocks with a defined overfishing 

limit (OFL), the ABC is reduced from 

the OFL to account for an estimate of 

scientific uncertainty, such as 

uncertainty around stock size estimates, 

variability around estimates of 

recruitment, and consideration of 

ecosystem issues, so that the OFL will 

not be exceeded. The ABC control rule 

is developed by the Council to reflect its 

risk tolerance for not exceeding the OFL 

and provides guidance to the Council’s 

Scientific and Statistical Committee for 

recommending annual ABCs based on 

the best available scientific information 

about stock status. The specific 

parameters of an ABC control rule are: 

(1) Upper biomass parameter; (2) 

maximum allowable fishing mortality 

rate (F); and (3) lower biomass 

parameter. The values assigned to each 

of these parameters dictate the overall 

‘‘shape’’ or function of the ABC control 

rule and determine whether F increases 

or decreases in response to the current 

estimate of stock biomass. 

On August 21, 2015 (80 FR 50825), 

the Council published a supplemental 

notice of intent (NOI) announcing it was 

expanding the scope of Amendment 8 

beyond an ABC control rule to consider 

localized depletion in inshore waters. 

Public comment during the 

supplemental scoping made it clear that 

localized depletion concerns voiced by 

many stakeholders included the 

biological impacts of herring removals 

on the herring stock and on predators of 

herring. Public comment also indicated 

that impacts of localized depletion 

should be measured and evaluated 

relative to competing uses for the 

herring resource and potentially 

negative economic impacts on 

businesses that rely on predators of 

herring. Therefore, the Council’s 

consideration of localized depletion in 

Amendment 8 included user group 

conflict, both an evaluation of impacts 

of the user group conflict and 

consideration of competing interests for 

how herring should be used. 

Amendment 8 was adopted by the 

Council on September 25, 2018. We 

published a notice of availability (NOA) 

for the amendment in the Federal 

Register on August 21, 2019 (84 FR 

43573), with a comment period ending 

October 21, 2019. We published a 

proposed rule for the amendment in the 

Federal Register on October 9, 2019 (84 

FR 54094), with a comment period 

ending November 25, 2019. After 

considering public comment, we 

approved Amendment 8, on behalf of 

the Secretary of Commerce, on 

November 19, 2019, and notified the 

Council of the amendment’s approval in 

a letter dated that same day. This final 

rule implements Amendment 8 as 

approved. Because details of the 

Council’s development of the measures 

in Amendment 8 were described in the 

NOA and proposed rule, they are not 

repeated here. 

Approved Measures 

The Magnuson-Stevens Act allows us 

to approve, partially approve, or 

disapprove measures recommended by 

the Council in an amendment based on 

whether the measures are consistent 

with the fishery management plan, plan 

amendment, the Magnuson-Stevens Act 

and its National Standards, and other 

applicable law. After reviewing public 

comment, we approved all the proposed 

measures in Amendment 8, as 

recommended by the Council. While the 

majority of public comment supported 

the implementation of Amendment 8, 

we also received public comment urging 

us to disapprove the amendment. 

Ultimately, we approved the proposed 

measures in Amendment 8 because we 

determined the measures were 

consistent with the Magnuson-Stevens 

Act and other applicable law. 

Comments that opposed the 

implementation of Amendment 8 did 

not sufficiently demonstrate that the 

ABC control rule or inshore midwater 

trawl restricted area were inconsistent 

with the Magnuson-Stevens Act or other 

applicable law. 

ABC Control Rule 

This rule establishes a long-term ABC 

control rule for herring. Under the 

control rule, when biomass (B) is at or 

above 50 percent of BMSY or its proxy, 

ABC is the catch associated with an F 

of 80 percent of FMSY or its proxy. When 

biomass falls below 50 percent of BMSY

or its proxy, F declines linearly to 0 at 

10 percent of BMSY or its proxy. The 

control rule sets ABC for a 3-year 

period, but allows ABC to vary year-toyear in response to projected changes in 

biomass. This rule specifies that the 

control rule can be revised via a 

framework adjustment if a quantitative 

assessment is not available, if 

projections are producing ABCs that are 

not justified or consistent with available 

information, or if the stock requires a 

rebuilding program. 


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The control rule explicitly accounts 

for herring as forage in the ecosystem by 

limiting F to 80 percent of FMSY when 

biomass is high and setting it at zero 

when biomass is low. It also generates 

an ABC consistent with specific criteria 

identified by the Council, including low 

variation in yield, low probability of the 

stock becoming overfished, low 

probability of a fishery shutdown, and 

catch limits set at a relatively high 

proportion of MSY. This control rule is 

intended to result in low variation in 

yield, low probability of a fishery 

shutdown, and low probability of 

overfishing. As a result, the Council 

anticipates that short-term negative 

economic impacts on participants in the 

herring or lobster fisheries, resulting 

from a reduced herring harvest in 

response to low herring biomass, may 

become a long-term economic benefit 

for industry participants. Relative to 

other control rules considered by the 

Council in Amendment 8, this control 

rule is designed to more effectively 

balance the goal and objectives of the 

Herring FMP, including managing the 

fishery at long-term sustainable levels, 

taking forage for predators into account 

to support the ocean ecosystem, and 

providing a biologically sustainable 

harvest as a source of revenue for 

fishing communities and bait for the 

lobster fishery. 

Shortly before the Council took final 

action on Amendment 8, the 2018 stock 

assessment concluded that herring 

biomass was low, and the probability of 

overfishing and the stock becoming 

overfished was high. While not directly 

applicable to a long-term harvest policy, 

the Council noted that under herring’s 

current condition of low biomass, 

setting catch more conservatively than 

status quo may increase the likelihood 

of stock growth and, in turn, have 

positive impacts on the herring fishery, 

predators, and predator fisheries. 

In August 2020, the report for the 

2020 herring stock assessment 

determined the stock is overfished, but 

not subject to overfishing. Spawning 

stock biomass (SSB) is estimated to have 

declined since 2014, and the 2019 SSB 

was estimated at 29 percent (77,883 

metric tons (mt)) of the SSB necessary 

to support MSY (269,000 mt) resulting 

in a determination of overfished. F for 

herring harvested by mobile gear (i.e., 

midwater trawl, purse seine, bottom 

trawl) has declined since 2010, was 

estimated to be 0.25 in 2019, and is well 

below the overfishing threshold (0.54) 

so the stock is not experiencing 

overfishing. Recruitment continues to be 

at historic lows, and in 2019 it was 

estimated at about 20 percent of median 

recruitment. On October 13, 2020, we 

notified the Council that the herring 

stock is overfished and requested it 

develop rebuilding measures. 

Inshore Midwater Trawl Restricted Area 

This rule prohibits the use of 

midwater trawl gear inshore of 12 

nautical miles (22 km) from the U.S./ 

Canada border to the Rhode Island/ 

Connecticut border and inshore of 20 

nautical miles (37 km) off the east coast 

of Cape Cod. Specifically, federally 

permitted vessels are prohibited from 

using, deploying, or fishing with 

midwater trawl gear within the inshore 

midwater trawl restricted area located 

shoreward of the 12-nautical mile (22- 

km) territorial sea boundary from 

Canada to Connecticut and within 30- 

minute squares 114 and 99 off Cape Cod 

(Figure 1). Midwater trawl vessels are 

able to transit the inshore midwater 

trawl restricted gear area provided gear 

is stowed and not available for 

immediate use. This measure is in 

addition to the existing prohibition on 

midwater trawling for herring in Area 

1A during June 1 through September 30. 


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The Council recommended the 

inshore midwater trawl restricted area 

to minimize local depletion and its 

associated user group conflict when 

midwater trawl vessels harvesting 

herring overlap with other user groups 

(i.e., commercial fisheries, recreational 

fisheries, ecotourism) that rely on 

herring as forage and provide inshore 

conservation benefits. The Council 

focused this measure on vessels using 

midwater trawl gear to mitigate 

potential negative socioeconomic 

impacts on other user groups in 

response to short-duration, high-volume 

herring removals by midwater trawl gear 

and because midwater trawl vessels are 

relatively more mobile and capable of 

fishing in offshore areas than vessels 

using other gear types. Information to 

quantify the impact of midwater 

trawling on other user groups is scarce, 

so the amendment analyzed the degree 

of overlap between midwater trawl 

vessels and other user groups. The 

inshore midwater trawl restricted area 

incorporates areas with a high degree of 

overlap between midwater trawl vessels 

and other user groups throughout the 

year. Specifically, it incorporates the 

overlap with predator fisheries in the 

Gulf of Maine and southern New 

England throughout the year, as well as 

the overlap with ecotourism and the 

tuna fishery in Area 1A during the fall. 

While overlap with the midwater trawl 

vessels does not necessarily translate 

into direct negative biological impacts 

on predators, less overlap may reduce 

potential user conflicts, provided 

midwater trawl effort does not shift into 

other areas and generate additional 

overlap. 

The Herring FMP specifies that 

herring research set-aside (RSA) can 

equal up to 3 percent of the sub-annual 

catch limit for a herring management 

area. This rule permits RSA 

compensation fishing using midwater 

trawl gear within the inshore midwater 

trawl restricted area. The Council 

recommended allowing RSA 

compensation fishing within the inshore 

midwater trawl restricted area to help 

ensure the RSA would be harvested and 

those funds would be available to 

support the projects awarded RSA. 

Vessels engaged in herring RSA 

compensation fishing typically operate 

as authorized by an exempted fishing 

permit (EFP) so they can request 

exemptions from certain regulations that 

would otherwise restrict herring 

harvest. While vessels are permitted to 

use midwater trawl gear within the 

inshore midwater trawl restricted area 

while RSA compensation fishing, it 

does not mean that compensations trips 

would be without restrictions. Terms 

and conditions of the EFP must be 

consistent with the Magnuson-Stevens 

Act, other applicable law, and the 

Herring FMP. Additionally, we would 

consider whether additional terms and 

conditions would be required for EFPs 


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1814 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

to ensure RSA compensation trips do 

not exacerbate the overlap between 

midwater trawl vessels and other user 

groups, consistent with the Herring 

FMP. 

This rule specifies that the inshore 

midwater trawl restricted area or new 

closures to address localized depletion 

and/or user group conflict may be 

modified or implemented via framework 

adjustment. The list of framework 

provisions at § 648.206 already includes 

closed areas; this amendment adds the 

inshore midwater trawl restricted area 

to that list. 

The Council’s recommendation to 

prohibit midwater trawling in inshore 

areas is an allocation decision intended 

to balance the needs of user groups and 

provide conservation benefits. 

Consistent with objectives in the 

Herring FMP, the inshore midwater 

trawl restricted area is intended to 

facilitate an efficient, fair, and equitable 

accommodation of relevant social, 

economic, and ecological factors 

associated with achieving OY, in part by 

providing, to the extent practicable, 

controlled opportunities for participants 

in other New England and Mid-Atlantic 

fisheries. Because midwater trawl 

vessels historically harvested a larger 

percentage of herring than other gear 

types and are able to fish offshore, the 

Council recommended prohibiting them 

from inshore waters to help ensure 

herring was available inshore for other 

user groups and predators of herring. 

The inshore midwater trawl restricted 

area is designed to be reasonably large 

enough to address the overlap between 

midwater trawl vessels and other user 

groups and, ultimately, user group 

conflict in inshore waters while still 

providing midwater trawl vessels access 

to areas with fishing opportunities. This 

measure is likely to negatively impact 

the midwater trawl fleet, with 

potentially increased trip costs and 

lower annual catches, but on balance, 

the benefits to other user groups, such 

as potentially reduced trips costs, higher 

annual catches, and improved safety, 

outweigh the costs to midwater trawl 

vessels. The measure may also have 

biological benefits if moving midwater 

trawl vessels offshore minimizes catch 

of river herring and shad, reduces 

fishing pressure on the inshore 

component of the herring stock, and 

helps ensure herring are available to 

predators. Herring is currently assessed 

as one stock, but it likely has stock 

components. Reducing fishing pressure 

inshore would benefit an inshore stock 

component. Analyses in Amendment 8 

estimate that in recent years 

approximately 30 percent of the 

midwater trawl fleet’s annualized 

revenue came from within the inshore 

midwater trawl restricted area. Negative 

economic impacts on the midwater 

trawl fleet may be mitigated if the fleet 

is able to offset lost revenue from 

inshore areas with increased revenue 

from offshore areas. Herring catch limits 

are currently low, so the fishery has the 

capacity to harvest the OY. Recent 

midwater trawl landings (2007–2015) 

offshore of the inshore midwater trawl 

restricted area (19,302 mt) are higher 

than the OY for 2020 and 2021 (11,621 

mt). In the longer term, the fishery will 

likely adapt to be able to harvest an 

increased OY, provided vessels are able 

to locate herring. 

Clarifications 

This rule establishes the following 

revision and clarifications to 

§ 648.202(a) under the authority of 

section 305(d) to the Magnuson-Stevens 

Act, which provides that the Secretary 

of Commerce may promulgate 

regulations necessary to carry out an 

FMP or the Magnuson-Stevens Act. 

First, this rule revises the title from 

‘‘Purse Seine/Fixed Gear Only Area’’ to 

‘‘Midwater Trawl Restricted Area.’’ 

Bottom trawl gear, in addition to purse 

seine and fixed gear, is permitted in the 

referenced area; only midwater trawl 

gear is prohibited in the area. This 

revision is a more accurate description 

of the referenced area and is necessary 

to clarify the intent of the regulation. 

Second, this rule clarifies that the 

regulation applies only to all federally 

permitted vessels fishing for herring. 

The regulation currently applies 

midwater trawl gear restrictions to 

vessels fishing for herring. This 

clarification is necessary to specify that 

restrictions on fishing for herring with 

midwater trawl gear only apply to 

federally permitted vessels and do not 

apply to vessels with only a state 

herring permit fishing exclusively in 

state waters. 

Third, the rule clarifies the conditions 

under which midwater trawl vessels 

may transit the ‘‘Midwater Trawl 

Restricted Area’’ described above. 

Current regulations specify that 

midwater trawl vessels with a limited 

access herring permit may transit Area 

1A during June through September with 

midwater trawl gear on board, provided 

the gear is stowed and not available for 

immediate use. This rule clarifies that 

any federally permitted herring vessel 

may transit Area 1A during June 

through September, provided midwater 

trawl gear is stowed and not available 

for immediate use. The unnecessary 

addition of a limited access permit 

requirement to transit Area 1A was 

likely a byproduct of the impact 

analysis identifying the number of 

limited access vessels that would be 

affected by the prohibition of midwater 

trawling in Area 1A implemented in 

Amendment 1 to the Herring FMP. 

This rule also revises § 648.200(b)(3) 

under the authority of section 305(d) to 

the Magnuson-Stevens Act. This 

revision changes the reference from ‘‘at’’ 

§ 648.201(a) to ‘‘in’’ § 648.201(a) to be 

consistent with other regulatory 

references within § 648.200. 

Revisions and Additional Clarifications 

to the Proposed Rule 

This rule implements necessary minor 

administrative changes under section 

305(d) to the Magnuson-Stevens Act 

that were not described in the proposed 

rule. First, it corrects definitions in 

§ 648.2. The definition for slippage in 

the Atlantic herring fishery was 

inadvertently removed from the 

regulations, and this rule restores it. 

This rule also moves the definition for 

observer or monitor to the correct 

alphabetic order. 

Second, this rule corrects several 

weblinks in regulations describing 

monitoring coverage (§ 648.11). The 

Northeast Fisheries Science Center’s 

Fishery Sampling Branch’s website was 

recently revised and, as a result, several 

weblinks to monitoring resources 

specified in the final rule implementing 

the New England Industry-Funded 

Monitoring (IFM) Omnibus Amendment 

(85 FR 7414; February 7, 2020) are now 

outdated. This rule corrects those 

outdated weblinks. 

Third, this rule corrects minor 

typographical errors in § 648.11 that 

were implemented in the final rule for 

the IFM Amendment. 

Comments and Responses 

We received 268 comment letters on 

the NOA and proposed rule: 160 from 

the general public; 38 from members of 

the fishing industry; 29 from members 

of the herring fishery; 19 from members 

of the recreational and charter party 

fisheries; 13 from environmental 

advocacy groups; and 9 from state or 

town governments. Of the 268 letters, a 

letter from the Pew Charitable Trusts 

(Pew) included 8,942 signatures, a letter 

from the Conservation Law Foundation 

(CLF) included 553 comments from the 

public, a letter from the National 

Audubon Society (NAS) included 3,970 

signatures and 201 comments from the 

public, and a letter from Saving Seafood 

included 22 comments from members of 

the fishing industry. 

Development of this amendment was 

contentious because stakeholders are 

polarized on the inshore midwater 

trawling prohibition to minimize user 


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Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 1815 

group conflict and, to a lesser extent, on 

the ABC control rule. Most of the 

commenters support the 

implementation of Amendment 8, 

including all state and town 

governments, all environmental 

advocacy groups, most recreational and 

charter party fisheries members, most of 

the general public, and some fishing 

industry members. Those commenters 

who do not support the implementation 

of Amendment 8 include most herring 

industry members, some fishing 

industry members, and some of the 

general public. 

Comment 1: Some members of the 

herring industry assert that Amendment 

8 is inconsistent with the MagnusonStevens Act, its National Standards, and 

the Herring FMP. They propose that 

current management measures, such as 

slippage consequence measures, 

coverage requirements, the seasonal 

prohibition on midwater trawling for 

herring in Area 1A, and catch caps, are 

more than sufficient to manage catch in 

the herring fishery. They caution that 

the cumulative impact of prohibiting 

midwater trawling inshore, low catch 

under the new ABC control rule, and 

existing restrictions was not fully 

analyzed in the final EIS (FEIS). They 

believe these cumulative restrictions 

threaten the loss of a year-round fishery, 

jeopardize continued participation in 

the fishery by harvesters and fishing 

communities, and negatively impact the 

bait supply for the lobster fishery. 

Response: The Herring FMP is 

intended to provide, in part, controlled 

opportunities for participants in other 

New England and Mid-Atlantic 

fisheries. The inshore midwater trawl 

restricted area was developed to address 

issues of localized depletion and its 

associated user group conflict as 

described in the amendment’s user 

group conflict problem statement. It is 

designed to support inshore fishing 

opportunities for a wide variety of 

fishing industry participants. The ABC 

control rule is designed to provide a 

long-term sustainable herring fishery 

and, similar to the inshore midwater 

trawl restricted area, the ABC control 

rule supports herring as forage for 

predators and other user groups. While 

measures such as slippage consequence 

measures, coverage requirements, and 

catch caps help manage herring catch, 

they were not developed explicitly to 

support opportunities for other user 

groups. 

Herring are an important forage 

species in the Northeast U.S. shelf 

ecosystem and they are eaten by a wide 

variety of fish, marine mammals, and 

birds. Herring share the role of forage 

with other prey species (e.g., sandlance, 

mackerels, squids, and hakes); the 

relative importance of herring as forage 

varies by predator and depends on 

whether other forage is available. 

Herring are important forage for Atlantic 

bluefin tuna, spiny dogfish, Atlantic 

cod, silver hake, and Atlantic striped 

bass, as well as seabirds (e.g., Atlantic 

puffins and terns) and marine mammals 

(e.g., baleen whales, toothed whales, 

and pinnipeds). 

The amendment’s FEIS analyzed the 

ecological and socioeconomic impacts 

of management measures on the herring 

fishery, the Atlantic mackerel fishery, 

and the lobster fishery, as well as 

predator fisheries and ecotourism. The 

FEIS also considered the impacts of 

these measures in concert with past, 

present, and reasonably foreseeable 

future actions. The FEIS concludes that 

short-term negative economic impacts 

on some fishery participants have the 

potential to become long-term economic 

benefits for all user groups. Negative 

impacts may be minimized for midwater 

trawl vessels if they are able to harvest 

herring offshore, other economical 

sources of bait are available for the 

lobster fishery, or the ABC control rule 

helps minimize the risk of the herring 

stock becoming overfished and subject 

to overfishing. The Council’s 

consideration included the ecological 

and socioeconomic impacts of measures 

in Amendment 8, and recommended 

these measures to help ensure herring 

was available for predators and all user 

groups. 

Section 6.1.1 of the FEIS describes 

how management measures are 

consistent with the Magnuson-Stevens 

Act and its National Standards. We 

determined these measures are 

consistent with the Magnuson-Stevens 

Act and its National Standards when we 

approved the amendment in November 

2019. Our consideration of how 

measures are consistent with specific 

National Standards is further detailed in 

our responses to comments below. 

Inshore Midwater Trawl Restricted Area 

Comment 2: Commenters support 

implementation of the inshore midwater 

trawl restricted area because they 

believe it will: 

• Protect Atlantic herring and river 

herring from localized inshore depletion 

by industrial-scale fishing; 

• Reduce user group conflict and 

support coastal economies and 

commercial and recreational business 

that rely on predators; 

• Balance the needs of all 

stakeholders in inshore waters where 

stakeholder overlap is the greatest, 

without setting a precedent for 

prohibiting other types of trawling; 

• Recognize the importance of herring 

to inshore users, including striped bass, 

tuna, and cod fisheries, as well as 

ecotourism by helping maintain a large 

forage biomass for predators and those 

predator fisheries (e.g., striped bass, 

tuna, recreational and charter fisheries); 

• Protect inshore waters from the 

impacts of midwater trawling and 

provide consistency with other 

countries that restrict midwater 

trawling; 

• Decrease discarded catch of cod and 

haddock by midwater trawlers in 

inshore waters; 

• Offer additional ecosystem 

protection to Stellwagen Bank; 

• Protect discreet, localized 

aggregations of herring, as well as the 

ecosystem and coastal communities that 

rely on them; and 

• Protect herring spawning areas, 

including spawning adults and eggs, 

especially off Cape Cod, to support 

recruitment. 

A joint letter from CLF, NAS, Natural 

Resources Defense Council (NRDC), 

Pew, and Wild Oceans supports 

implementation of the inshore midwater 

trawl restricted area. The commenters 

explain the measure would reduce 

fishing pressure inshore, where 

predators need herring, and mitigate 

negative socioeconomic impacts of highvolume herring removals on other user 

groups. The commenters believe the 

inshore midwater trawl restricted area 

will have biological, ecological, and 

economic benefits and that it is 

consistent with the Magnuson-Stevens 

Act and National Standards. 

The New England Purse Seiner’s 

Alliance (NEPSA) supports the inshore 

midwater trawl restricted area because it 

believes the existing prohibition on 

midwater trawling in Area 1A during 

the summer helps protect herring and 

allows for a robust tuna fishery. NEPSA 

also asserts the prohibition clearly 

addresses the goals, objectives, and 

problem statement for the amendment 

and is consistent with the MagnusonStevens Act. 

The Commonwealth of Massachusetts 

supports the inshore midwater trawl 

restricted area because it minimizes 

possible detrimental biological impacts 

on predators and associated 

socioeconomic impacts on other user 

groups that rely on herring as forage. It 

also supports using the overlap of 

midwater trawl activity and other user 

groups as the best available science to 

support prohibiting inshore midwater 

trawling. 

The Nature Conservancy (TNC) 

commented that localized depletion, or 

taking fish faster than they can be 

replaced in a given area, is a significant 


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biological concern for the herring 

resource, the predatory fish and birds 

that rely on herring as food, and other 

user groups that depend on the local 

availability of herring to support their 

business. TNC recognizes there is 

limited information linking localized 

depletion to the midwater trawl fishery, 

but it supports the Council’s 

precautionary approach to address 

localized depletion and notes the 

inshore midwater trawl restricted area 

encompasses times and areas with a 

high degree of overlap between the 

midwater trawl fishery and other user 

groups. 

While Lund’s Fisheries generally 

opposes the inshore midwater trawl 

restricted area, it supports allowing 

midwater trawl RSA compensation 

fishing within the inshore midwater 

trawl restricted area to support fishery 

access to herring and mackerel. 

Response: We acknowledge the 

commenters support for the inshore 

midwater trawl restricted area and 

concur that the measure is intended to 

ensure herring is available to minimize 

detrimental biological impacts on 

predators of herring and associated 

socioeconomic impacts on other user 

groups. 

Comment 3: Several commenters 

support the inshore midwater trawl 

restricted area, but would prefer that the 

midwater trawl restricted area extend 

further offshore, either 25 (46 km) or 50 

(93 km) nautical miles offshore, 

especially on Stellwagen Bank. 

Response: We can only approve, 

disapprove, or partially approve 

Council-recommended measures; we 

cannot modify the inshore midwater 

trawl restricted area to extend further 

offshore. The Council considered 

alternatives that would have extended 

the midwater trawl restricted area 

further offshore but recommended a 

smaller inshore midwater trawl 

restricted area, so that the costs 

associated with the measure are 

commensurate with the benefits. 

Comment 4: Some members of the 

herring industry assert the inshore 

midwater trawl restricted area is not 

consistent with the Magnuson-Stevens 

Act and applicable law for the following 

reasons: 

• It will prevent the herring and 

mackerel fisheries from achieving OY 

on a short-term and continuing basis 

and will not result in a net benefit to the 

Nation (National Standard 1); 

• The best available science does not 

indicate localized depletion, nor does it 

find a difference in fishery removals by 

midwater trawl vessels compared to 

purse seine vessels, and this measure 

makes no attempt to align the restricted 

area with associated analyses and is an 

illegitimate political compromise 

(National Standard 2); 

• The allocation of fishing grounds is 

not fair or equitable and does not 

promote conservation (National 

Standard 4); 

• It will impose economic 

inefficiencies on midwater trawl 

vessels, including longer, more 

expensive fishing trips, and no measure 

may have economic allocation as its sole 

purpose (National Standard 5); 

• The benefits of restricting midwater 

trawling inshore do not outweigh the 

costs (National Standard 7); 

• Restricting midwater trawling in 

inshore waters had no conservation 

benefit and does not minimize 

economic impacts (National Standard 

8); 

• Moving midwater trawl vessels 

offshore makes fishing trips potentially 

less safe (National Standard 10); 

• Prohibiting midwater trawling 

inshore is arbitrary and capricious; and 

• The amendment does not include a 

fishery impact statement or cumulative 

effects assessment. 

Response: We disagree with these 

comments. The Council’s development 

of the amendment considered the best 

available science to determine how best 

to achieve OY in this fishery, given this 

fishery’s multiple commercial, 

recreational, and ecological interests. 

The inshore midwater trawl restricted 

area fairly and equitably allocates 

fishing opportunities to a wide variety 

of fishing industry participants in a 

manner that reasonably promotes 

conservation. The Council’s 

consideration included a robust analysis 

and consideration of economic impacts 

on fishing communities, including 

recreational fishing, an efficient use of 

resources, and attempts to minimize 

costs and unnecessary duplication. 

Further, the Council weighed the costs 

and benefits of this measure on the 

various user groups and considered the 

effect of the measure on the safety of the 

fisheries participants. 

The herring fishery is capable of 

achieving OY, both in the short term 

and on a continuing basis, with inshore 

harvest from purse seine and bottom 

trawl vessels and offshore harvest from 

midwater trawl vessels, consistent with 

National Standard 1. In the short term, 

herring catch limits are expected to 

remain very low (less than 10,000 mt), 

as the stock is experiencing historically 

low recruitment. If herring are available, 

the fishery has the capacity and 

opportunity to harvest the entire OY. In 

the longer term, the fishery will likely 

adapt to be able to harvest an increased 

OY, provided vessels are able to locate 

herring. While recent herring catches 

have largely come from within the 

inshore midwater trawl restricted area, 

midwater trawl vessels have historically 

caught the majority of their harvest 

offshore. Any inability to harvest the OY 

is more likely related to herring’s 

reduced abundance, rather than the lack 

of inshore midwater trawling curtailing 

the fishery’s capacity to harvest herring. 

Regarding the mackerel fishery, we do 

not expect the inshore midwater trawl 

restricted area to prevent the mackerel 

fishery from achieving OY because only 

14 percent (925 mt) of recent mackerel 

midwater trawl landings (2007–2015) 

were harvested from within the 

restricted area. 

The Magnuson-Stevens Act defines 

OY as the amount of fish that provides 

the greatest overall benefit to the Nation, 

particularly with respect to food 

production and recreational 

opportunities. It also prescribes OY on 

the basis of the fishery’s MSY, as 

reduced by relevant economic, social, or 

ecological factors. The Herring FMP’s 

OY definition further requires, ‘‘taking 

into account the protection of marine 

ecosystems, including maintenance of a 

biomass that supports the ocean 

ecosystem, predator consumption of 

herring, and biologically sustainable 

human harvest. This includes 

recognition of the importance of 

Atlantic herring as one of many forage 

species of fish, marine mammals, and 

birds in the Northeast Region.’’ Relevant 

to the economic and social factors that 

apply to herring management are the 

impacts on the fisheries for predator 

fisheries (e.g., groundfish, bluefin tuna, 

striped bass) and on ecotourism (e.g., 

whale watching). Consistent with 

National Standard 1, the inshore 

midwater trawl restricted area helps 

limit concentrated removals of herring 

in inshore areas to acknowledge the 

importance of herring as forage in the 

ecosystem, support the businesses that 

depend on predators of herring, and 

provide the greatest overall benefit to 

the Nation. 

The inshore midwater trawl restricted 

area was developed in response to the 

amendment’s problem statement and is 

designed to help minimize user group 

conflict between midwater trawl vessels 

and other user groups. The Council’s 

consideration of localized depletion 

ultimately included user group conflict 

to address stakeholders’ concerns with 

localized depletion issues. The Council 

evaluated the impact of user group 

conflict and competing interests for how 

herring should be used. Consistent with 

National Standards 2 and 4, the inshore 

midwater trawl restricted area allocates 

fishing opportunities to a wide variety 


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of user groups in a manner that 

promotes the conservation of herring for 

predators and is based on the best 

available science. The FEIS summarizes 

what is known about the role of herring 

as forage in the ecosystem, includes 

maps describing the footprint of the 

herring fishery as well as key predator 

fisheries, and analyzes the overlap 

between these fisheries to identify 

seasons and areas with the potential for 

user group conflict. The FEIS suggests 

the greatest amount of overlap between 

user groups occurs inshore throughout 

the year. Because midwater trawl 

vessels are more capable of fishing 

offshore than other user groups, the 

Council recommended prohibiting them 

from inshore waters to help ensure 

herring are available inshore for other 

users groups and predators of herring. 

The inshore midwater trawl restricted 

area has biological benefits if moving 

the midwater trawl fleet offshore 

minimizes catch of river herring and 

shad, reduces fishing pressure on the 

inshore component of the herring stock, 

and helps ensure herring are available to 

predators. For these reasons, the FEIS 

describes the inshore midwater trawl 

restricted area as a fair compromise that 

balances the competing needs of user 

groups. 

This measure is likely to negatively 

impact the midwater trawl fleet, with 

potentially increased trip costs and, if 

less herring is available offshore, lower 

annual catches. The FEIS considers that 

some midwater trawl vessels may 

purchase new gear (e.g., purse sein or 

bottom trawl) in order to access inshore 

areas, while others may opt to fish 

offshore, with potentially higher 

operational costs, and/or pursue other 

fisheries to make up for any lost herring 

revenue. The FEIS also estimates that 

this measure has the potential to reduce 

costs, such as searching and fishing 

time, for other fisheries and ecotourism 

companies that rely on herring 

predators, if it improves the inshore 

availability of herring. Therefore, 

consistent with National Standards 5, 7, 

8, and 10, the benefits to other user 

groups, such as potentially reduced 

trips costs, higher annual catches, and 

improved safety, outweigh the costs to 

the midwater trawl vessels. While 

benefits to other user groups are 

difficult to specifically quantify until 

new measures are in place and data on 

their effects become available, we 

expect economic benefits would extend 

to the fishing communities that support 

these user groups as they will likely 

benefit from increased access to herring. 

Further, we expect that negative 

economic impacts on midwater trawl 

vessels can be minimized if vessels are 

able to increase their harvest of herring 

offshore. The Council considered other 

alternatives to minimize user group 

conflict, including prohibiting midwater 

trawling inshore of 25 nautical miles (46 

km) and 50 nautical miles (93 km), but 

recommended a shallower midwater 

trawl restricted area instead as a way to 

more fairly and equitably balance the 

costs and benefits of the measure. To 

help mitigate the economic impact of 

the inshore midwater trawl restricted 

area and provide access for the mackerel 

fishery, the Council also recommended 

that RSA compensation fishing trips be 

exempt from the inshore prohibition on 

midwater trawling. 

The inshore midwater trawl restricted 

area is not arbitrary and capricious. It is 

consistent with the problem statement 

developed by the Council to describe 

user group conflict and the objectives of 

the Herring FMP, including providing 

for full utilization of the OY and, to the 

extent practicable, controlled 

opportunities for participants in other 

New England and Mid-Atlantic 

fisheries. Because information to 

quantify the impact of midwater 

trawling on other user groups is limited, 

the FEIS analyzed the degree of overlap 

between the midwater trawl fleet and 

other user groups, consistent with 

National Standard 2. While overlap with 

the midwater trawl fishery does not 

necessarily translate into negative 

biological impacts on predators, less 

overlap may reduce potential user 

conflicts, provided midwater trawl 

effort does not shift into other areas. 

Additionally, the amendment’s FEIS 

serves as the fishery impact statement, 

as it analyzes the conservation, 

economic, and social impacts of the 

management measures in Sections 4.1– 

4.8 in the FEIS, and the cumulative 

effects assessment is included in 

Section 4.9 of the FEIS. 

Comment 5: Some commenters 

contend that user group conflict was 

excluded from Amendment 8 scoping 

and, therefore, it is not acceptable for 

user group conflict to be the basis for 

implementing an exclusion zone. 

Response: On August 21, 2015 (80 FR 

50825), the Council published a 

supplemental NOI announcing it was 

expanding the scope of Amendment 8 to 

consider localized depletion in inshore 

waters. The supplemental NOI defined 

localize depletion as harvesting more 

fish from an area than can be replaced 

within a given time period. It also 

explained the Council was seeking 

input from the interested public as to 

how to define, measure, and evaluate 

impacts, and minimize inshore, 

localized depletion in the herring 

fishery as part of Amendment 8. Public 

comment during the supplemental 

scoping made it clear that localized 

depletion concerns voiced by many 

stakeholders were not just related to the 

biological impacts of herring removals 

on the herring stock and on predators of 

herring. Public comment indicated that 

localized depletion should be defined to 

also include the user group conflicts 

that result from localized depletion and 

that the impacts of localized depletion 

should be measured and evaluated 

relative to competing uses for the 

herring resource and potentially 

negative economic impacts on 

businesses that rely on predators of 

herring. Defining the nature of localized 

depletion and identifying its impacts so 

that the Council could best address 

localized depletion was precisely the 

type of information sought by the 

supplemental NOI expanding the scope 

of Amendment 8. 

Comment 6: Commenters oppose the 

inshore midwater trawl restricted area 

because of its inherent effect on the 

allocation of herring between user 

groups and believe: 

• Fisheries regulations should not be 

popularity contests based on feelings 

and perceived user conflict instead of 

evidence and facts; 

• Ocean access belongs to all and gear 

exclusions should not be based on 

prioritizing some user groups over 

others; 

• Restricting inshore midwater 

trawling sets a precedent for excluding 

trawling in other areas, and may lead to 

exclusion zones in the squid fishery; 

• Prohibiting inshore midwater 

trawling will increase bycatch and 

impacts to habitat, especially on herring 

spawning areas, should midwater trawl 

vessels switch to bottom trawl gear; and 

• Removals by purse seine gear are 

similar in intensity to removals by 

midwater trawl gear, as both gear types 

target and harvest large schools of 

herring. 

Response: Many of the Council’s 

actions entail catch allocations between 

user groups. The National Standard 

Guidelines recognize that allocations of 

fishing privileges include assignment of 

ocean areas to different gear users that 

must comply with National Standard 4. 

The Council’s prohibition on inshore 

midwater trawling complies with 

National Standard 4’s requirement to be 

fair and equitable and reasonably 

calculated to promote conservation. The 

decision was based on fishing effort and 

socioeconomic data. Rather than being 

the result of its popularity with 

stakeholders as some claim, it balances 

the needs of user groups and is expected 

to also provide conservation benefits for 


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inshore areas due to herring’s important 

role in the ecosystem as forage. The 

Council focused on midwater trawl 

vessels because of their potential for 

high-volume catches, and they are 

relatively more mobile and capable of 

fishing in offshore areas than vessels 

using other gear types. While purse 

seine vessels are capable of high-volume 

catches, midwater trawl vessels have 

historically harvested more than 65 

percent of the annual catch limit. The 

FEIS concludes that the inshore 

midwater trawl restricted area is 

expected to only have a neutral to low 

negative impact on habitat. Any effort 

shift from bottom trawl to midwater 

trawl gear is not expected to 

significantly impact habitat because of 

the existing seasonal and area 

restrictions on using small-mesh bottom 

trawl gear within the inshore restricted 

area and the previous determination 

that the herring fishery has only 

minimal and temporary impacts on 

essential fish habitat. We understand 

the commenters dislike the measure, but 

their concerns do not demonstrate the 

measure is inconsistent with applicable 

law. 

Comment 7: Some commenters are 

concerned about the economic impact of 

the inshore midwater trawl restricted 

area on the herring, mackerel, and 

lobster fisheries, specifically because: 

• Herring migrate through inshore 

waters and the midwater trawl fleet 

needs flexibility to be able to harvest 

herring where it is available; 

• Losing midwater trawl access to 

inshore areas will have negative 

economic impacts on fishing vessels, 

the businesses and communities that 

support them, and availability and price 

of bait for the lobster fishery; 

• The restricted area includes 

mackerel fishing grounds and vessels 

rely on higher value mackerel to 

supplement herring revenue; 

• Amendment estimates a 30-percent 

reduction in revenue, but because the 

majority of herring and mackerel are 

caught in inshore waters, it would be 

more like a 70-percent reduction in 

revenue; and 

• Nearly all recent midwater trawl 

catches have come from the inshore 

restricted area and vessels will not be 

able to recoup lost revenue offshore 

because environmental conditions in 

Area 3 have not been suitable for 

catching herring. 

Response: The amendment’s FEIS 

includes an economic analysis of the 

potential impacts of prohibiting inshore 

midwater trawling. Based on data 

showing that midwater trawl vessels 

historically harvested the majority of 

their catch offshore of the inshore 

midwater trawl restricted area, the FEIS 

estimates 30 percent of midwater trawl 

revenue came from within the inshore 

restricted area. While economic impacts 

on the herring, mackerel, and lobster 

fisheries are expected to be low negative 

to negative, the impacts on predator 

fisheries and ecotourism are described 

as uncertain to low positive. Negative 

economic impacts may be minimized if 

midwater trawlers can harvest herring 

and mackerel offshore and the lobster 

fishery can use alternatives to herring 

for bait, such as menhaden, redfish, and 

skates. In the short term, the availability 

of herring to the fishery may be affected 

by the historically low recruitment and 

overfished stock status. But longer term, 

as the stock rebuilds, the Council 

expects midwater trawl vessels may 

once again be able to harvest the 

majority of their catch offshore. 

Comment 8: Some commenters 

caution that the inshore midwater trawl 

restricted area, covering a large area and 

effective year-round, is inconsistent 

with the problem identified in the 

amendment and ignores the user group 

overlap analysis. They also express 

concern that the amendment’s FEIS 

does not acknowledge that the measure 

is a herring allocation among fleets, 

incorrectly identifies the inshore 

midwater trawl restricted area as a 

compromise between competing 

interests, and does not reasonably 

consider the impacts of an effort shift if 

midwater trawl vessels begin using 

bottom trawl gear. 

Response: We disagree. As previously 

described, the inshore midwater trawl 

restricted area allocates fishing 

opportunities to a wide variety of user 

groups in a manner that promotes the 

conservation of herring for predators 

and is based on the best available 

science on the overlap between user 

groups. The FEIS acknowledges the 

inshore midwater trawl restricted area is 

an allocation of fishing opportunities 

between different user groups. Because 

the Council designed the measures to 

help limit concentrated removals of 

herring in inshore areas to allow for 

herring as forage in the ecosystem and 

support businesses that depend on 

predators of herring, the FEIS correctly 

describes the measure as a fair 

compromise that balances the 

competing needs of user groups. The 

FEIS recognizes the potential for an 

effort shift from midwater to bottom 

trawl gear, and acknowledges that 

biological benefits and socioeconomic 

benefits to other user groups may be 

minimized if midwater trawl vessels 

continue to fish inshore with bottom 

trawl gear. Whether midwater trawl 

vessels convert to bottom trawl gear will 

likely depend on several factors, such as 

the cost of converting, market demands, 

and the availability of herring offshore. 

In Area 1A, herring is only available for 

harvest June through December and is 

more frequently caught using purse 

seine gear than bottom trawl gear. 

Additionally, the states of Maine, New 

Hampshire, and Massachusetts 

implement weekly landings limits that 

may deter a midwater trawl vessel from 

converting to bottom trawl gear to fish 

in Area 1A. Given time and area 

restrictions on using small-mesh bottom 

trawl gear in Management Areas 1B and 

3, the FEIS states that herring vessels are 

unlikely to substantially expand the use 

of bottom trawl gear in those areas, with 

the exception that they may try to access 

the western portion of the Raised 

Footrope Exemption Area from 

September to December. 

Comment 9: Some commenters assert 

the amendment does not consider the 

impact of restricting fishing inshore in 

combination with the loss of fishing 

grounds due to future offshore wind 

development. 

Response: During the development of 

Amendment 8, there were no offshore 

wind projects in place or construction 

and operation plans (COPs) made public 

for any of the herring management 

areas. While COPs for South Fork Wind 

Farm were made public in June 2018, 

the COPs for Vineyard Wind and Bay 

State Wind were made public in 

October 2018 and March 2019, 

respectively, after the Council adopted 

final measures in Amendment 8 at its 

September 2018 meeting. The FEIS 

qualitatively considers the impacts of 

offshore wind projects, along with 

environmental and other non-fishing 

related activities, as part of the 

cumulative effects assessment (Section 

4.9). It concludes that the direct and 

indirect effects of the management 

measures in Amendment 8 considered 

in combination with all other actions 

(i.e., past, present, and reasonably 

foreseeable future actions), should yield 

non-significant low positive impacts on 

human communities. Without wind 

projects being in place or COPs made 

public, quantitatively evaluating the 

impacts of offshore wind projects in 

combination with measures considered 

in Amendment 8 would have been too 

speculative. 

ABC Control Rule 

Comment 10: Commenters support 

implementation of the ABC control rule 

because they believe it will: 

• Balance the goals and objectives of 

the Herring FMP, including long-term, 

biologically-sustainable harvest, 


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accounting for forage, and sustainable 

source of fishing revenue; 

• Better account for forage at times of 

high biomass while continuing to 

safeguard the herring fishery during 

times of lower biomass; 

• Provide forage for fish, marine 

mammals, and seabirds; 

• Better align with ecosystem-based 

management; 

• Support ecosystem health and the 

economies of coastal communities; 

• Help reduce inconsistent and 

unpredictable fishing to ensure a steady 

supply of bait for the lobster fishery; 

and 

• Help ensure the long-term viability 

of herring, its fishery, and the predators 

that rely on herring. 

The joint letter from CLF, NAS, 

NRDC, Pew, and Wild Oceans explained 

that, initially, they advocated for a more 

conservative ABC control rule to 

maintain a forage base for economically 

valuable predator fisheries and the 

marine ecosystem. However, 

recognizing the economic implications 

of the 2018 herring stock assessment, 

indicating that herring biomass and 

recruitment were low, they now support 

the Council-recommended ABC control 

rule to provide valuable forage for fish, 

marine mammals, and seabirds, while 

allowing fishing opportunities and longterm benefits for the herring and lobster 

fisheries. They believe the control rule 

is consistent with the Herring FMP, 

Magnuson-Stevens Act, National 

Standard 1 guidelines for managing 

forage fish, and the best available 

science. 

The TNC supports the ABC control 

rule given that the 2018 herring stock 

assessment concluded herring biomass 

is declining, stock recruitment is at a 

historic low, and the probability of the 

stock becoming overfished is high. It 

acknowledges that the ABC control rule 

may result in negative short-term 

economic impacts for participants in the 

herring and lobster fisheries, but 

believes it will provide long-term 

benefits for the marine ecosystem and 

the fisheries that depend on herring. 

Response: We concur with the 

commenters’ support for the ABC 

control rule. 

Comment 11: Members of the herring 

industry stress that the need for a 

control rule is flawed because the 2018 

stock assessment assumes no link 

between SSB and recruitment. They 

explain that recruitment in the herring 

fishery is environmentally driven and 

variable, that the recent experience of 

below average recruitment is unusual, 

and that small herring seen both inshore 

and offshore are part of a recruitment 

event independent of a new control 

rule. 

Response: The Council recommended 

a new ABC control rule because it 

determined that the previous ABC 

control rule did not sufficiently provide 

for the role of herring in the ecosystem, 

especially when biomass is reduced and 

there is uncertainty in the assessment. 

While the assessment accounts for 

natural mortality, it is more risk averse 

to use an ABC control rule that reserves 

a portion of the catch for predators in 

the event estimates of biomass are 

uncertain. The inability of the 2018 

stock assessment to quantitatively 

estimate the relationship between SSB 

and recruitment does not mean that the 

relationship does not exist. The FEIS 

acknowledges that environmental 

factors likely have a larger influence on 

herring recruitment and abundance 

trends than fishing, but concluded that 

reducing fishing pressure, when there is 

substantial uncertainty, is expected to 

prevent overfishing and optimize yield 

for the fishery in the long term. 

Comment 12: Some members of the 

herring industry expressed concern with 

the management strategy evaluation 

(MSE) used to develop the ABC control 

rule, including the following: 

• The MSE was rushed, stakeholder 

engagement and modeling were limited 

in scope and not used to their full 

potential, especially modeling of the 

spatial distribution of herring and 

predator/prey interactions; 

• The analysis did not consider 

abundance, availability, or nutritional 

value of alternative prey species, nor 

did it consider the impact of herring 

abundance on the abundance of 

alternative prey species; 

• The Council had no understanding 

of how this control rule would result in 

real-world specifications; and 

• The analysis did not incorporate 

rebuilding measures that would be 

required if the stock is overfished, so the 

benefits of the more conservative 

control rules are illusory. 

Response: The Council developed 

alternatives for a herring ABC control 

rule using an MSE. MSE is a decisionmaking tool that uses computer 

modeling to compare the performance of 

alternatives (i.e., management strategies) 

under various scenarios to achieve 

multiple, competing objectives. Because 

we do not have a complete 

understanding of the ocean ecosystem 

and all the sources of uncertainty, MSEs 

are useful to evaluate how alternatives 

perform under different environmental 

conditions. The Council held two public 

workshops to generate stakeholder input 

to help identify objectives for the MSE 

analysis. Input generated by the 

workshops was considered by the 

Council and, for the most part, adopted 

and included in Amendment 8. The 

MSE used three models, a herring 

model, a predator model, and an 

economic model, to compare ABC 

control rule performance. The models 

simulated how well the ABC control 

rules achieved herring management 

objectives, such as biomass, yield, 

revenue, and predator considerations, 

under simulated environmental 

conditions related to herring growth, 

stock assessment bias, and productivity 

of herring. Results of the MSE informed 

the range of ABC control rule 

alternatives and impact analyses of 

those alternatives in Amendment 8. 

Development of the control rule with 

an MSE was, despite unavoidable data 

gaps and modeling limitations, based on 

the best scientific information available. 

To ensure the MSE was sufficient for 

identifying and analyzing a range of 

ABC control rules, the Council arranged 

for an external peer review of the MSE. 

The reviewers recognized that a 

tremendous amount of work was 

completed in a rigorous manner under 

the time and resource constraints of the 

MSE. While the models were 

constrained by the availability of data, 

the reviewers agreed the three models 

used in the MSE were appropriate for 

evaluating ABC control rules in the 

context of herring’s role as forage in the 

ecosystem. The model used for herring 

included scenarios where herring 

productivity was high, as well as low, 

to explicitly enable the Council to 

evaluate the impact of ABC control rules 

on real-world specifications given 

fluctuations in herring biomass. The 

commenters are correct that the model 

used for herring did not include 

rebuilding measures. However, 

rebuilding measures are not required to 

be effective until 2 years after a stock 

has been declared overfished. There are 

potential conservation benefits 

associated with conservative control 

rules, especially like the Councilrecommended control rule that sets 

herring catch at zero when biomass is 

low, until rebuilding measures become 

effective. Overall, the reviewers 

concluded that the data, methods, and 

results of the MSE were sufficient for 

identifying and analyzing a range of 

ABC control rule alternatives and that 

the MSE represents the best available 

science for evaluating the performance 

of herring control rules and their 

potential impact on key predators. 

Comment 13: Commenters oppose 

implementation of the ABC control rule 

because they believe: 

• It is too precautionary, as evident 

by its 2-percent chance of overfishing in 


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1820 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

2019 when only a 50-percent or less 

chance of overfishing is required under 

the Magnuson-Stevens Act; 

• It is not appropriate for herring 

because it double counts predator needs 

and adds an additional forage buffer of 

at least 15 percent; 

• It is not capable of explicitly 

accounting for herring’s role as forage 

because many predators are generalists 

and consume a variety of prey species; 

• Setting catch to zero when biomass 

is low does not account for herring as 

forage because herring’s role as forage 

does not diminish as biomass 

diminishes; 

• It would not have prevented the 

current situation of low herring biomass 

and recruitment, but it does ensure the 

economic impact of low herring biomass 

is more negative than necessary; and 

• It lacks ‘‘exceptional 

circumstances’’ protocol to address 

scenarios with low biomass, especially 

when it would prohibit fishing. 

Response: We disagree with these 

comments. The control rule was 

developed by the Council to reflect its 

harvest policy for herring and provide 

for a long-term sustainable herring 

fishery. It moderately reduces fishing 

mortality (80 percent of the rate that 

supports MSY reduced from 90 percent) 

when biomass is high, eliminates catch 

in response to low biomass (10 percent 

or less of the BMSY), and takes into 

account herring’s role as forage for 

predators. As described previously, an 

external peer review found the results of 

the MSE were sufficient for identifying 

and analyzing a range of ABC control 

rule alternatives and that the MSE 

represents the best available science for 

evaluating the performance of herring 

control rules and their potential impact 

on key predators. Similar to the inshore 

midwater trawl restricted area, the ABC 

control rule also considers impacts 

across user groups. The control rule 

modestly reduces the amount of catch 

available to the herring and lobster 

fisheries to support herring as forage for 

other user groups. Instead of an 

‘‘exceptional circumstances’’ protocol to 

allow for fishing when biomass is very 

low, the Council recommended that 

catch be set at zero to help rebuild 

biomass and ensure herring is available 

to predators. The control rule is 

intended to produce a low variation in 

yield, low probability of a herring 

fishery shutdown, and low probability 

of overfishing. As a result, the Council 

anticipates that short-term negative 

economic impacts on participants in the 

herring, mackerel, or lobster fisheries 

resulting from a reduced herring harvest 

may become a long-term economic 

benefit for them and other user groups. 

Comment 14: Some members of the 

herring industry argue for the continued 

use of the status quo control rule 

because it balances scientific 

uncertainty with stability for the fishery. 

They also caution the new control rule 

is not consistent with the MagnusonStevens Act because the FEIS did not 

indicate any benefit to predators, so the 

economic costs of the control rule 

outweigh the benefits. 

Response: Currently, there is no ABC 

control rule for the Herring FMP. 

Interim control rules have been applied 

in the past, but the harvest policy has 

been temporary and the Council has 

considered different ABC options with 

each specifications action. The 

commenters’ conclusion that the FEIS 

does not indicate any benefit to 

predators is incorrect. The FEIS holds 

that the Council-recommended ABC 

control rule is expected to have positive 

biological impacts on the herring stock 

and low positive biological impacts on 

herring predators. While the 

commenters are correct that the FEIS 

estimates minimal differences in shortterm impacts on predator species across 

ABC control rule alternatives, the ability 

of the MSE’s modeling to detect 

differences in predator metrics (i.e., 

common tern productivity, bluefin tuna 

weight, spiny dogfish biomass) and 

marine mammals was limited by the 

amount and scale of available predator 

data. The FEIS notes that, in general, 

more herring left unfished in the 

ecosystem could have positive impacts 

on herring predators, despite that 

relatively small differences in overall 

ABC may not have measurable 

differences in overall impacts on herring 

predators because many predators are 

opportunistic. Additionally, the FEIS 

explains that using ABC control rules 

that reduce fishing mortality at lower 

biomass levels would have more longterm positive benefits on predators, 

compared to control rules that allow 

higher fishing mortalities (status quo). 

In addition to providing for herring’s 

role as forage in the ecosystem, the 

control rule is also intended to provide 

for a sustained participation of fishing 

communities that depend on herring. 

Information about the importance of 

herring to affected fishery-related 

businesses and communities was 

included in the FEIS. The FEIS 

describes preventing overfishing and 

optimizing yield as expected long-term 

impacts of establishing an ABC control 

rule. It also concludes that these 

impacts are expected to benefit herring 

fishery-related business, herring fishing 

communities, and other communities 

that depend on predators of herring 

(e.g., other commercial fisheries, 

recreational fisheries, ecotourism). In 

the short term, the FEIS explains there 

will likely be negative impacts on 

herring vessels, since catch levels would 

likely be greatly reduced until herring 

biomass and recruitment increase. But, 

it acknowledges negative short-term 

economic impacts are expected under 

all the control rule alternatives, 

including status quo, based on low 

projected herring biomass for the next 

several years. Therefore, because the 

potential benefits, biological as well as 

socioeconomic, are commensurate with 

potential costs, we determined the ABC 

control rule is consistent with the 

Magnuson-Stevens Act. 

Classification 

Pursuant to section 304(b)(3) of the 

Magnuson-Stevens Act, the National 

Marine Fisheries Service (NMFS) 

Assistant Administrator has determined 

that this final rule is consistent with 

Amendment 8 to the Herring FMP, other 

provisions of the Magnuson-Stevens 

Act, and other applicable law. 

NMFS is also implementing 

regulations in this rule that are 

necessary to carry out any fishery 

management plan or amendment 

pursuant to section 305(d) of the 

Magnuson-Stevens Act, which provides 

that the Secretary of Commerce may 

promulgate regulations necessary to 

carry out a FMP or the MagnusonStevens Act. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order (E.O.) 12866. 

This final rule is not an E.O. 13771 

regulatory action because this action is 

not significant under E.O. 12866. 

This final rule contains no 

information collection requirements 

under the Paperwork Reduction Act of 

1995. 

The Council prepared an FEIS for 

Amendment 8 to the Herring FMP. We 

filed the FEIS with the Environmental 

Protection Agency on August 12, 2019. 

A notice of availability for the FEIS was 

published in the Federal Register on 

August 16, 2019 (84 FR 41988). The 

FEIS describes the impacts of the 

measures on the environment. This 

amendment establishes a herring ABC 

control rule and prohibits the use of 

midwater trawl gear in inshore waters 

from Canada to Connecticut. The 

biological impact of the ABC control 

rule on the herring resource is expected 

to be positive. However, other factors, 

such as environmental conditions, may 

have an even greater influence on 

herring biomass and could affect the 

stock regardless of the control rule. 

Short-term revenue reductions are 

expected as a result of the ABC control 


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rule likely resulting in negative 

economic impacts on the herring 

fishery, with ripple effects on the 

communities involved in the Atlantic 

mackerel and lobster fisheries. These 

negative economic impacts are expected 

to be exacerbated by the low herring 

biomass and recruitment identified in 

the 2020 stock assessment. In the long 

term, fishing under a control rule that 

ensures continued, sustainable harvest 

of the herring resource is expected to 

benefit the herring fishery and its 

communities, as well as indirectly 

benefiting fisheries that rely on herring 

as forage in the ecosystem. The 

biological impacts of prohibiting 

midwater trawling in inshore areas on 

the herring resource are expected to be 

neutral to low positive if the measure 

prevents the fishery from harvesting the 

annual catch limit (ACL) or reduces 

fishing pressure on the inshore stock 

component. However, in the short term, 

the ACL is expected to be low, so the 

fishery is expected to be able to harvest 

the ACL. The biological impacts of 

prohibiting trawling on non-target and 

protected species are somewhat 

uncertain due to unknown effort shifts. 

Midwater trawl effort may move 

offshore or some vessels may decide to 

change gear type in order to continue 

fishing inshore. The socioeconomic 

impacts are expected to be negative for 

the midwater trawl fleet and associated 

fishing communities. The gear 

prohibition is estimated to impact about 

30 percent of total revenue for midwater 

water trawl vessels. Some of this 

revenue may be recovered by fishing in 

offshore areas, but trips costs will be 

higher. The socioeconomic impacts of 

the gear prohibition on predator 

fisheries and ecotourism industries are 

expected to be potentially low positive. 

This ecosystem is complex and the 

linkages between herring and predators 

are complex: Having less fishing 

pressure in one area may not necessarily 

mean there are positive impacts on a 

predator that spends time in that area, 

as well as other areas. Potential negative 

impacts associated with user conflicts in 

these areas are expected to be lower. 

However, some effort will shift so there 

could be increased conflicts in other 

areas and seasons that do not exist now. 

In approving Amendment 8 on 

November 19, 2019, NMFS issued a 

Record of Decision (ROD) identifying 

the selected alternative. A copy of the 

ROD is available from NMFS (see FOR

FURTHER INFORMATION CONTACT). 

We prepared a final regulatory 

flexibility analysis (FRFA) in support of 

this action. The FRFA incorporates the 

initial RFA (IRFA), a summary of the 

significant issues raised by the public 

comments in response to the IRFA, our 

responses to those comments, and a 

summary of the analyses completed in 

support of this action. A description of 

why this action was considered, the 

objectives of, and the legal basis for this 

rule is contained in in the preamble to 

the proposed and this final rule, and is 

not repeated here. All of the documents 

that constitute the FRFA and a copy of 

the EIS/RIR/IRFA are available upon 

request (see ADDRESSES) or via the 

internet at: http://www.nefmc.org. 

A Statement of the Significant Issues 

Raised by the Public in Response to the 

IRFA, a Statement of the Agency’s 

Assessment of Such Issues, and a 

Statement of Any Changes Made in the 

Final Rule as a Result of Such 

Comments 

We received 268 comment letters on 

the NOA and proposed rule. Those 

comments, and our responses, are 

contained in the Comments and 

Responses section of this final rule and 

are not repeated here. Comments 1, 2, 4, 

7, 9, 13, and 14 discussed the economic 

impacts of the measures, but did not 

directly comment on the IRFA. All 

revisions and clarifications to the 

proposed rule, as well as the rationale 

for those revisions, are described in 

Revisions and Additional Clarifications 

to the Proposed Rule section of this final 

rule and are not repeated here. 

Description and Estimate of the Number 

of Small Entities to Which the Rule 

Would Apply 

Effective July 1, 2016, NMFS 

established a small business size 

standard of $11 million in annual gross 

receipts for all businesses primarily 

engaged in the commercial fishing 

industry for RFA compliance purposes 

only (80 FR 81194, December 29, 2015). 

A commercial fishing business is 

classified as a small business if it is 

independently owned and operated, is 

not dominant in its field of operation, 

and has combined annual receipts not 

in excess of $11 million. 

This action affects all permitted 

herring vessels. Therefore, the direct 

regulated entity is a firm that owns at 

least one herring permit. There are 

many firms that hold an open-access 

Category D herring permit. Unlike openaccess Category E herring permit 

holders, Category D permit holding 

firms harvest only a small fraction of 

herring and do not typically use 

midwater trawl gear so they are 

minimally affected by the regulations. 

Category E permit holding firms, 

however, are affected by the regulations 

because they have a higher possession 

limit (20,000 lb (9,072 kg) versus 6,600 

lb (2,994 kg)) and are more likely to use 

midwater trawl gear. 

As of June 1, 2018, there were 862 

firms (852 small) that held at least 1 

herring permit. There were 126 (123 

small) firms that were active in the 

herring fishery (i.e., having landed 

herring in 2017) and held at least 1 

herring permit. There were 101 (94 

small) firms that held at least 1 limited 

access (Categories A, B, C) herring 

permit or a Category E open access 

herring permit. There were 53 (50 small) 

firms that held a limited access or 

Category E herring permit and were 

active in the herring fishery. Table 1 

characterizes ‘‘gross receipts’’ and 

‘‘herring receipts’’ for firms that held a 

limited access or Category E open access 

herring permit. Table 2 characterizes 

‘‘gross receipts’’ and ‘‘herring receipts’’ 

for firms that held a limited access or 

Category E open access herring permit 

and were active in the herring fishery. 

In both tables, the small entities are 

further characterized by gear type to 

facilitate comparisons. There are fewer 

than three large entities that use 

midwater trawl gear, so the description 

of the large entities is not disaggregated 

to gear type to preserve confidentiality 

under the Magnuson-Stevens Act. Table 

3 characterizes ‘‘gross receipts’’ and 

‘‘herring receipts’’ for firms that held a 

herring permit and Table 4 characterizes 

‘‘gross receipts’’ and ‘‘herring receipts’’ 

for firms that held a herring permit and 

were active in the herring fishery. 

Tables 3 and 4 include firms with 

Category D open access herring permits 

that would be minimally impacted by 

this action. 

TABLE 1—AVERAGE RECEIPTS FROM FIRMS WITH LIMITED ACCESS AND CATEGORY E OPEN ACCESS HERRING PERMITS

IN 2017 

Firm size Firms Gear Gross 

receipts 

Herring 

receipts 

Large ............................................................... 7 All ................................................................... $20,396,374 $492,598 

Small ............................................................... 9 Midwater Trawl ............................................... 2,499,646 1,241,225 


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TABLE 1—AVERAGE RECEIPTS FROM FIRMS WITH LIMITED ACCESS AND CATEGORY E OPEN ACCESS HERRING PERMITS

IN 2017—Continued 

Firm size Firms Gear Gross 

receipts 

Herring 

receipts 

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 

Firm size Firms Gear Gross 

receipts 

Herring 

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 

Firm size Firms Gear Gross 

receipts 

Herring 

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 

Firm size Firms Gear Gross 

receipts 

Herring 

receipts 

Large ............................................................... 3 All ................................................................... $16,567,731 $1,149,395 

Small ............................................................... 9 Midwater Trawl ............................................... 2,499,646 1,241,225 

Small ............................................................... 114 Non-Midwater Trawl ....................................... 681,943 103,540 

Source: NMFS. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

This action contains no new 

collection-of-information, reporting, or 

recordkeeping requirements. 

Federal Rules Which May Duplicate, 

Overlap, or Conflict With the Proposed 

Rule 

This action does not duplicate, 

overlap, or conflict with any other 

Federal rules. 

Description of the Steps the Agency Has 

Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes 

Recognizing the potential economic 

impact of this amendment, the Council 

recommended measures that achieved 

the amendment goals while minimizing 

negative economic impacts on fishery 

participants. 

Of all the ABC control rule 

alternatives considered by the Council, 

the Council recommended the control 

rule that would provide the second 

highest level of catch. This control rule 

was developed by the Council to reflect 

its harvest policy for herring and 

provide for a long-term sustainable 

herring fishery. It moderately reduces 

fishing mortality (80 percent of the rate 

that supports maximum sustainable 

yield reduced from 90 percent) when 

biomass is high, eliminates catch in 

response to low biomass (10 percent or 

less of the biomass to support maximum 

sustainable yield), and takes into 

account herring’s role as forage for 

predators. As described previously, an 

external peer review found the results of 

the MSE were sufficient for identifying 

and analyzing a range of ABC control 

rule alternatives and that the MSE 

represents the best available science for 

evaluating the performance of herring 

control rules and their potential impact 

on key predators. Similar to the inshore 

midwater trawl restricted area, the ABC 

control rule also considers impacts 

across user groups. The control rule 

modestly reduces the amount of catch 

available to the herring and lobster 

fisheries to support herring as forage for 

other user groups. The Council 

anticipates that short-term negative 

economic impacts on participants in the 

herring, mackerel, or lobster fisheries 

resulting from a reduced herring harvest 

may become a long-term economic 

benefit for other user groups. Especially 

if the control rule performs as 

recommended by the Council, with a 

low variation in yield, low probability 

of a herring fishery shutdown, and low 

probability of overfishing. 

The Council developed the inshore 

midwater trawl restricted area 

consistent with the amendment’s 

problem statement and the FEIS’s 

overlap analysis. The Council 

considered other alternatives to 

minimize user group conflict, including 

prohibiting midwater trawling inshore 

of 25 nautical miles (46 km) and 50 

nautical miles (93 km), but 

recommended a shallower midwater 

trawl restricted area instead as a way to 


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more fairly and equitably balance the 

costs and benefits of the measure. 

Additionally, to help mitigate the 

economic impact of the inshore 

midwater trawl restricted area and 

provide access for the mackerel fishery, 

the Council also recommended that RSA 

compensation fishing trips would be 

exempt from the prohibition on inshore 

midwater trawling. 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, a fishery bulletin 

that serves as a small entity compliance 

guide was prepared. Copies of this final 

rule are available from the Greater 

Atlantic Regional Fisheries Office 

(GARFO), and the fishery bulletin (i.e., 

compliance guide) will be sent to all 

holders of permits for the herring 

fishery. The fishery bulletin and this 

final rule will be posted on the GARFO 

website. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Recordkeeping and 

reporting requirements. 

Dated: December 29, 2020. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 648 is amended 

as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 648.2, revise the definition for 

‘‘Observer or monitor’’ and add the 

definition for ‘‘Slippage in the Atlantic 

herring fishery.’’ 

§ 648.2 Definitions. 

* * * * * 

Observer or monitor means any 

person certified by NMFS to collect 

operational fishing data, biological data, 

or economic data through direct 

observation and interaction with 

operators of commercial fishing vessels 

as part of NMFS’ Northeast Fisheries 

Observer Program. Observers or 

monitors include NMFS-certified 

fisheries observers, at-sea monitors, 

portside samplers, and dockside 

monitors. 

* * * * * 

Slippage in the Atlantic herring 

fishery means discarded catch from a 

vessel issued an Atlantic herring permit 

that is carrying a NMFS-certified 

observer or monitor prior to the catch 

being brought on board or prior to the 

catch being made available for sampling 

and inspection by a NMFS-certified 

observer or monitor after the catch is on 

board. Slippage also means any catch 

that is discarded during a trip prior to 

it being sampled portside by a portside 

sampler on a trip selected for portside 

sampling coverage by NMFS. Slippage 

includes releasing catch from a codend 

or seine prior to the completion of 

pumping the catch aboard and the 

release of catch from a codend or seine 

while the codend or seine is in the 

water. Fish that cannot be pumped and 

remain in the codend or seine at the end 

of pumping operations are not 

considered slippage. Discards that occur 

after the catch is brought on board and 

made available for sampling and 

inspection by a NMFS-certified observer 

or monitor are also not considered 

slippage. 

* * * * * 

■ 3. Amend § 648.11 by: 

■ a. Revising paragraphs (h)(1), (4)(ii), 

(5)(ii)(C), (5)(iv)(A), (5)(vi), (5)(vii)(A), 

and (5)(vii)(G); 

■ b. Revising paragraphs (i)(1), (2), 

(3)(ii), (4)(iii), and (5); 

■ c. Revising paragraph (k)(4)(i); and 

■ d. Revising paragraphs (m)(1)(v), 

(2)(iii)(C), and (4)(i). 

§ 648.11 Monitoring coverage. 

* * * * * 

(h) * * * (1) General. An entity 

seeking to provide monitoring services, 

including services for IFM Programs 

described in paragraph (g) of this 

section, must apply for and obtain 

approval from NMFS following 

submission of a complete application. 

Monitoring services include providing 

NMFS-certified observers, monitors (atsea monitors and portside samplers), 

and/or electronic monitoring. A list of 

approved monitoring service providers 

shall be distributed to vessel owners 

and shall be posted on the NMFS 

Fisheries Sampling Branch (FSB) 

website: https://www.fisheries.noaa.gov/ 

resource/data/observer-providersnortheast-and-mid-atlantic-programs. 

* * * * * 

(4) * * * 

(ii) If NMFS approves the application, 

the monitoring service provider’s name 

will be added to the list of approved 

monitoring service providers found on 

the NMFS/FSB website and in any 

outreach information to the industry. 

Approved monitoring service providers 

shall be notified in writing and 

provided with any information 

pertinent to its participation in the 

observer or monitor programs. 

* * * * * 

(5) * * * 

(ii) * * * 

(C) The required observer or monitor 

equipment, in accordance with 

equipment requirements, prior to any 

deployment and/or prior to NMFS 

observer or monitor certification 

training; and 

* * * * * 

(iv) * * * (A) A candidate observer’s 

first several deployments and the 

resulting data shall be immediately 

edited and approved after each trip by 

NMFS/FSB prior to any further 

deployments by that observer. If data 

quality is considered acceptable, the 

observer would be certified. 

* * * * * 

(vi) Observer and monitor training 

requirements. A request for a NMFS/ 

FSB Observer or Monitor Training class 

must be submitted to NMFS/FSB 45 

calendar days in advance of the 

requested training. The following 

information must be submitted to 

NMFS/FSB at least 15 business days 

prior to the beginning of the proposed 

training: A list of observer or monitor 

candidates; candidate resumes, cover 

letters and academic transcripts; and a 

statement signed by the candidate, 

under penalty of perjury, that discloses 

the candidate’s criminal convictions, if 

any. A medical report certified by a 

physician for each candidate is required 

7 business days prior to the first day of 

training. CPR/First Aid certificates and 

a final list of training candidates with 

candidate contact information (email, 

phone, number, mailing address and 

emergency contact information) are due 

7 business days prior to the first day of 

training. NMFS may reject a candidate 

for training if the candidate does not 

meet the minimum qualification 

requirements as outlined by NMFS/FSB 

minimum eligibility standards for 

observers or monitors as described on 

the National Observer Program website: 

https://www.fisheries.noaa.gov/topic/ 

fishery-observers#become-an-observer. 

(vii) * * * 

(A) Deployment reports. The 

monitoring service provider must report 

to NMFS/FSB when, where, to whom, 

and to what vessel an observer or 

monitor has been deployed, as soon as 

practicable, and according to 


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1824 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

requirements outlined by NMFS. The 

deployment report must be available 

and accessible to NMFS electronically 

24 hours a day, 7 days a week. The 

monitoring service provider must 

ensure that the observer or monitor 

reports to NMFS the required electronic 

data, as described in the NMFS/FSB 

training. Electronic data submission 

protocols will be outlined in training 

and may include accessing government 

websites via personal computers/ 

devices or submitting data through 

government issued electronics. The 

monitoring service provider shall 

provide the raw (unedited) data 

collected by the observer or monitor to 

NMFS at the specified time per 

program. 

* * * * * 

(G) Status report. The monitoring 

service provider must provide NMFS/ 

FSB with an updated list of contact 

information for all observers or monitors 

that includes the identification number, 

name, mailing address, email address, 

phone numbers, homeports or fisheries/ 

trip types assigned, and must include 

whether or not the observer or monitor 

is ‘‘in service,’’ indicating when the 

observer or monitor has requested leave 

and/or is not currently working for an 

industry-funded program. Any 

Federally contracted NMFS-certified 

observer not actively deployed on a 

vessel for 30 days will be placed on 

Leave of Absence (LOA) status (or as 

specified by NMFS/FSB according to 

most recent Information Technology 

Security Guidelines. Those Federally 

contracted NMFS-certified observers on 

LOA for 90 days or more will need to 

conduct an exit interview with NMFS/ 

FSB and return any NMFS/FSB issued 

gear and Common Access Card (CAC), 

unless alternative arrangements are 

approved by NMFS/FSB. NMFS/FSB 

requires 2-week advance notification 

when a Federally contracted NMFScertified observer is leaving the program 

so that an exit interview may be 

arranged and gear returned. 

* * * * * 

(i) * * * (1) Requirements. To be 

certified, employees or sub-contractors 

operating as observers or monitors for 

monitoring service providers approved 

under paragraph (h) of this section. In 

addition, observers must meet NMFS 

National Minimum Eligibility Standards 

for observers specified at the National 

Observer Program website: https://

www.fisheries.noaa.gov/topic/fisheryobservers#become-an-observer. 

(2) Observer or monitor training. In 

order to be deployed on any fishing 

vessel, a candidate observer or monitor 

must have passed an appropriate 

NMFS/FSB Observer Training course 

and must adhere to all NMFS/FSB 

program standards and policies. If a 

candidate fails training, the candidate 

and monitoring service provider shall be 

notified immediately by NMFS/FSB. 

Observer training may include an 

observer training trip, as part of the 

observer’s training, aboard a fishing 

vessel with a trainer. Contact NMFS/ 

FSB for the required number of program 

specific observer and monitor training 

certification trips for full certification 

following training. 

(3) * * * 

(ii) Be physically and mentally 

capable of carrying out the 

responsibilities of an observer on board 

fishing vessels, pursuant to standards 

established by NMFS. Such standards 

shall be provided to each approved 

monitoring service provider. 

* * * * * 

(4) * * * 

(iii) Be physically and mentally 

capable of carrying out the 

responsibilities of a monitor on board 

fishing vessels, pursuant to standards 

established by NMFS. Such standards 

shall be provided to each approved 

monitoring service provider. 

* * * * * 

(5) Probation and decertification. 

NMFS may review observer and monitor 

certifications and issue observer and 

monitor certification probation and/or 

decertification as described in NMFS 

policy. 

* * * * * 

(k) * * * 

(4) * * * 

(i) An owner of a scallop vessel 

required to carry an observer under 

paragraph (k)(3) of this section must 

arrange for carrying an observer certified 

through the observer training class 

operated by the NMFS/FSB from an 

observer service provider approved by 

NMFS under paragraph (h) of this 

section. The owner, operator, or vessel 

manager of a vessel selected to carry an 

observer must contact the observer 

service provider and must provide at 

least 48-hr notice in advance of the 

fishing trip for the provider to arrange 

for observer deployment for the 

specified trip. The observer service 

provider will notify the vessel owner, 

operator, or manager within 18 hr 

whether they have an available 

observer. A list of approved observer 

service providers shall be posted on the 

NMFS/FSB website: https://

www.fisheries.noaa.gov/resource/data/ 

observer-providers-northeast-and-midatlantic-programs. The observer service 

provider may take up to 48 hr to arrange 

for observer deployment for the 

specified scallop trip. 

* * * * * 

(m) * * * 

(1) * * * 

(v) To provide the required IFM 

coverage aboard declared Atlantic 

herring trips, NMFS-certified observers 

and monitors must hold a high volume 

fisheries certification from NMFS/FSB. 

(2) * * * 

(iii) * * * 

(C) For a waiver of IFM requirements 

on trip by a wing vessel as described in 

paragraph (m)(1)(ii)(E) of this section. 

* * * * * 

(4) * * * 

(i) An owner of an Atlantic herring 

vessel required to have monitoring 

under paragraph (m)(3) of this section 

must arrange for monitoring by an 

individual certified through training 

classes operated by the NMFS/FSB and 

from a monitoring service provider 

approved by NMFS under paragraph (h) 

of this section. The owner, operator, or 

vessel manager of a vessel selected for 

monitoring must contact a monitoring 

service provider prior to the beginning 

of the trip and the monitoring service 

provider will notify the vessel owner, 

operator, or manager whether 

monitoring is available. A list of 

approved monitoring service providers 

shall be posted on the NMFS/FSB 

website: https://www.fisheries.noaa.gov/ 

resource/data/observer-providersnortheast-and-mid-atlantic-programs. 

* * * * * 

■ 4. 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. 

* * * * * 


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■ 5. In § 648.200, revise paragraphs 

(b)(1), (2), and (3) to read as follows: 

§ 648.200 Specifications. 

* * * * * 

(b) * * * 

(1) OFL must be equal to catch 

resulting from applying the maximum 

fishing mortality threshold to a current 

or projected estimate of stock size. 

When the stock is not overfished and 

overfishing is not occurring, this is the 

fishing rate supporting maximum 

sustainable yield (e.g., FMSY or proxy). 

Catch that exceeds this amount would 

result in overfishing. The stock is 

considered overfished if stock biomass 

is less than 1⁄2 the stock biomass 

associated with the MSY level or its 

proxy (e.g., SSBMSY or proxy). The stock 

is considered subject to overfishing if 

the fishing mortality rate exceeds the 

fishing mortality rate associated with 

the MSY level or its proxy (e.g., FMSY or 

proxy). 

(2) ABC must be less than the OFL. 

The Council’s Scientific and Statistical 

Committee (SSC) shall recommend ABC 

to the Council by applying the ABC 

control rule and considering scientific 

uncertainty. Scientific uncertainty, 

including, but not limited to, 

uncertainty around stock size estimates, 

variability around estimates of 

recruitment, and consideration of 

ecosystem issues, shall be considered 

when setting ABC. 

(3) ACL must be equal to or less than 

the ABC. Management uncertainty, 

which includes, but is not limited to, 

expected catch of herring in the New 

Brunswick weir fishery and the 

uncertainty around discard estimates of 

herring caught in Federal and state 

waters, shall be considered when setting 

the ACL. Catch in excess of the ACL 

shall trigger accountability measures 

(AMs), as described in § 648.201(a). 

* * * * * 

■ 6. 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 US coastline 

and the following points, connected in 

the order listed by straight lines, unless 

otherwise noted: 

TABLE 1 TO PARAGRAPH (a)(2) 

Point Latitude Longitude Note 

IMT1 ....................................................................................................................................... 44° 17.986′ N 67° 5.503′ W 1 2

IMT2 ....................................................................................................................................... 42° 00.00′ N 69° 43.474′ W 2 3

IMT3 ....................................................................................................................................... 42° 00.00′ N 69° 30.00′ W ........................

IMT4 ....................................................................................................................................... 41° 00.00′ N 69° 30.00′ W ........................

IMT5 ....................................................................................................................................... 41° 00.00′ N 70° 00.00′ W ........................

IMT6 ....................................................................................................................................... 41° 2.339′ N 70° 00.00′ W 4 5

IMT7 ....................................................................................................................................... 40° 50.637′ N 71° 51.00′ W 5 6

IMT8 ....................................................................................................................................... 41° 18.503′ N 71° 51.00′ W 7

1Point IMT1 represents the intersection of the U.S./Canada Maritime Boundary and the 12 nautical mile (nmi) Territorial Sea boundary. 2From Point IMT1 to Point IMT2 following the 12 nmi Territorial Sea boundary. 

3Point IMT2 represents the intersection of the 12 nmi Territorial Sea boundary and 42°00′ N lat. 4Point IMT6 represents the intersection of 70°00′ W long. and the 12 nmi Territorial Sea boundary. 5From Point IMT6 to Point IMT7 following the 12 nmi Territorial Sea Boundary. 

6Point IMT7 represents the intersection of 71°51′ W long. and the 12 nmi Territorial Sea boundary. 7Point IMT8 represents the intersection of 71°51′ W long. and the coastline of Watch Hill, RI. 

* * * * * 

■ 7. In § 648.206, revise paragraphs 

(b)(3), (b)(37) and (b)(38) and add 

paragraph (b)(39) to read as follows: 

§ 648.206 Framework provisions. 

* * * * * 

(b) * * * 

(3) Closed areas, including midwater 

trawl restricted areas, other than 

spawning closures; 

* * * * * 

(37) River herring and shad Catch Cap 

Areas and Catch Cap Closure Areas; 

(38) Modifications to the ABC control 

rule, including, but not limited to, 

control rule parameters, if a quantitative 

stock assessment is not available, if the 

projections are producing ABCs that are 

not justified or consistent with available 

information, or if the stock requires a 

rebuilding program; and 

(39) Any other measure currently 

included in the FMP. 

* * * * * 

[FR Doc. 2020–29127 Filed 1–8–21; 8:45 am] 

BILLING CODE 3510–22–P 


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