[Federal Register Volume 87, Number 137 (Tuesday, July 19, 2022)]
[Rules and Regulations]
[Pages 42962-42968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15351]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 220713-0155]
RIN 0648-BL06


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

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

ACTION: Final rule.

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SUMMARY: This rule approves and implements Framework Adjustment 9 to 
the Atlantic Herring Fishery Management Plan. This action establishes a 
rebuilding plan for herring and adjusts accountability measure catch 
threshold triggers when catch exceeds a herring annual catch limit or 
management area sub-annual catch limit. This action also revises 
regulatory text that is unnecessary, outdated, or unclear consistent 
with section 305(d) of the Magnuson-Stevens Fishery

[[Page 42963]]

Conservation and Management Act. This action is necessary to respond to 
updated scientific information and to achieve the goals and objectives 
of the fishery management plan. The approved measures are intended to 
help prevent overfishing, rebuild the overfished herring stock, achieve 
optimum yield on a continuing basis, and ensure that management 
measures are based on the best scientific information available.

DATES: Effective August 18, 2022.

ADDRESSES: Copies of Framework 9, including the Environmental 
Assessment (EA) and the Regulatory Impact Review (RIR) prepared by the 
New England Fishery Management Council in support of this action, are 
available from Thomas A. Nies, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. 
These documents are also accessible via the internet at https://www.nefmc.org/management-plans/herring or http://www.regulations.gov.
    Copies of the small entity compliance guide are available from 
Michael Pentony, Regional Administrator, NMFS, Greater Atlantic 
Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 
01930-2298, or available on the internet at: http://www.greateratlantic.fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Maria Fenton, Fishery Management 
Specialist, (978) 281-9196, <a href="/cdn-cgi/l/email-protection#1a577b68737b345c7f746e75745a74757b7b347d756c"><span class="__cf_email__" data-cfemail="8ec3effce7efa0c8ebe0fae1e0cee0e1efefa0e9e1f8">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    The Council adopted Framework Adjustment 9 to the Atlantic Herring 
Fishery Management Plan (FMP) on September 28, 2021. The Council 
submitted the framework and draft Environmental Assessment (EA) to NMFS 
for review on November 10, 2021. NMFS published a proposed rule for 
Framework 9 on March 2, 2022 (87 FR 11680). The 15-day public comment 
period for the proposed rule closed on March 17, 2022.
    NMFS has approved all of the measures in Framework 9 recommended by 
the Council, as described below. This final rule implements Framework 
9, which establishes a rebuilding plan for herring and adjusts 
accountability measure catch threshold triggers when catch exceeds a 
herring annual catch limit or management area sub-annual catch limit. 
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) allows NMFS to approve, partially approve, or disapprove 
measures proposed by the Council based on whether the measures are 
consistent with the FMP, the Magnuson-Stevens Act and its National 
Standards, and other applicable law. NMFS generally defers to the 
Council's policy choices unless there is a clear inconsistency with the 
law or the FMP. Details concerning the development of these measures 
were contained in the preamble of the proposed rule and are not 
repeated here. This final rule also revises regulatory text that is 
unnecessary, outdated, or unclear consistent with section 305(d) of the 
Magnuson-Stevens Act, which provides authority to the Secretary of 
Commerce to promulgate regulations necessary to ensure that amendments 
to an FMP are carried out in accordance with the FMP and the Magnuson-
Stevens Act.

Approved Measures

    This action approves the management measures proposed in Framework 
Adjustment 9 to the Herring FMP. The measures implemented in this final 
rule are:

1. Herring Rebuilding Plan

    Framework 9 establishes a rebuilding plan for herring that 
continues the use of the acceptable biological catch (ABC) control rule 
that was implemented through Amendment 8 to the Herring FMP and is 
expected to rebuild the stock by fishing year 2026 (the first year that 
probability of rebuilding is estimated to be 50 percent or greater). 
Under the ABC control rule, when biomass (B) is at or above 50 percent 
of the biomass that can support harvest of the maximum sustainable 
yield (B<INF>MSY</INF>) or its proxy, ABC is the catch associated with 
an F of 80 percent of F<INF>MSY</INF> or its proxy. When biomass falls 
below 50 percent of B<INF>MSY</INF> or its proxy, F declines linearly 
to 0 at 10 percent of B<INF>MSY</INF> or its proxy. Under the 
rebuilding plan, F will range from a low of 0.08 (fishing year 2023) to 
a high of 0.43 (fishing years 2025 and 2026) based on current stock 
biomass projections. The ABC control rule allows for a maximum F of 
0.43 because 0.43 is 80 percent of the current estimate of 
F<INF>MSY</INF> (0.54). The rebuilding plan will not make changes to 
the fishing year 2022 ABC, so the specifications that the fishery is 
currently operating under will not be disrupted.

2. Adjustments to Accountability Measure Catch Threshold Triggers

    Framework 9 adjusts AM catch threshold triggers when a herring ACL 
or Management Area sub-ACL is exceeded so that an overage of a sub-ACL 
in one fishing year will only be deducted in a subsequent fishing year 
if the overage exceeds 10 percent of the sub-ACL; and/or if the ACL is 
also exceeded. Additionally, if a sub-ACL is exceeded by more than 10 
percent and the ACL is not also exceeded, only the portion of the sub-
ACL overage above 10 percent will be deducted from the appropriate sub-
ACL in a subsequent fishing year. Under these regulations, the 
following overage scenarios are possible:
    <bullet> If catch exceeds a sub-ACL by 10 percent or less but does 
not exceed the ACL in a given fishing year, then NMFS will not deduct 
any amount of the overage from the applicable sub-ACL or ACL in the 
fishing year following total catch determination.
    <bullet> If catch exceeds a sub-ACL by more than 10 percent but 
does not exceed the ACL in a given fishing year, then NMFS will 
subtract the amount of the overage above 10 percent from the applicable 
sub-ACL and ACL in the fishing year following total catch 
determination. For example, if catch exceeds the Area 1A sub-ACL by 15 
percent in a given fishing year and the ACL is not exceeded, the amount 
equal to the 5 percent overage will be deducted from the ACL and Area 
1A sub-ACL in the fishing year following total catch determination.
    <bullet> If catch exceeds a sub-ACL by any amount and also exceeds 
the ACL in a given fishing year, then NMFS will subtract the full 
amount of the sub-ACL overage from the applicable sub-ACL, and the full 
amount of the ACL overage from the ACL, in the fishing year following 
total catch determination. For example, if catch exceeds the Area 1A 
sub-ACL by 15 percent and the ACL by 5 percent in a given fishing year, 
the amount equal to the 15-percent overage will be deducted from the 
Area 1A sub-ACL and the amount equal to the 5-percent overage will be 
deducted from the ACL in the fishing year following total catch 
determination.
    <bullet> If catch exceeds the ACL but does not exceed any sub-ACLs 
in a given fishing year, then NMFS will subtract the full amount of the 
overage from the ACL in the fishing year following total catch 
determination. For example, if catch exceeds the herring ACL by 2 
percent in a given fishing year and no sub-ACLs are exceeded, the 
amount equal to the 2-percent overage will be deducted from the ACL 
only in the fishing year following total catch determination. It is 
possible for catch to exceed the ACL even if it does not exceed any 
sub-ACLs because carryover from a previous fishing year may increase 
the applicable sub-ACLs, but not the ACL. Therefore, the sum of the 
individual sub-ACLs could exceed the ACL, and the fishery could harvest 
more

[[Page 42964]]

than the ACL while staying within sub-ACLs.

3. Revisions and Clarifications to Existing Regulations

    This final rule revises regulatory text that is unnecessary, 
outdated, or unclear consistent with section 305(d) of the Magnuson-
Stevens Act. The revisions at Sec.  648.13(f)(1)(ii)(B), (f)(2), 
(f)(5), and (f)(6) clarify that vessels are not allowed to catch or 
transfer at sea more than 40,000 lb (18,143.7 kg) of herring per trip 
or calendar day if the vessel is in, or the fish were harvested from, a 
management area subject to a 40,000-lb (18,143.7-kg) herring possession 
limit. The revisions at Sec.  648.14(r)(1)(ii)(B) clarify that it is 
unlawful for any person to land or attempt to land more than the 
possession limits specified at Sec.  648.201(a) from a management area 
subject to a possession limit adjustment or fishery closure. The 
addition of paragraph Sec.  648.14(r)(1)(iv)(F) clarifies that is it 
unlawful for any person to purchase, receive, possess, have custody of, 
sell, barter, trade or transfer more than 2,000 lb (907.2 kg) or 40,000 
lb (18,143.7 kg) of herring, or attempt to do any of these things, from 
a vessel if the herring is from a management area subject to a herring 
possession limit pursuant to Sec.  648.201(a). The revisions at Sec.  
648.14(r)(1)(vii)(A) clarify that vessels may not transit or be in a 
management area subject to a possession limit adjustment or fishery 
closure with more than the applicable herring possession limit, unless 
such herring were caught in an area not subject to the possession 
limit, all fishing gear is stowed and not available for immediate use, 
and the vessel is issued the appropriate herring permit. The revision 
at Sec.  648.201(a)(1)(i) changes the paragraph heading from 
``Management area closure'' to ``Possession limit adjustments.'' The 
revisions at Sec.  648.201(a)(1)(i)(A), (a)(2)(i)(B)(1), 
(a)(1)(i)(B)(2), (a)(1)(ii), (a)(2), and (a)(4)(ii) update possession 
limit adjustment language to be consistent with Sec.  648.201(a)(1)(i), 
and clarify that vessels may not fish for, possess, transfer, receive, 
land, or sell more than the applicable possession limits described in 
those paragraphs, or attempt to do any of these things. The revisions 
at Sec.  648.201(a)(1)(i)(B)(1) clarify that, based on catch 
projections, NMFS may implement a 2,000-lb (907.2-kg) herring 
possession limit (Phase 2) without first implementing a 40,000-lb 
(18,143.7-kg) possession limit (Phase 1) in Areas 2 or 3 in order to 
avoid impracticable transitions from Phase 1 to Phase 2 thresholds, 
avoid overages, or reduce the risk of exceeding the ABC. The revisions 
at Sec.  648.201(b) and (c) correct typos by changing ``less than'' to 
``greater than.'' The revisions at Sec.  648.201(g)(1) update the 
language used in the carryover example to clarify the timing of when 
carryover is applied and how it is calculated. The final revision 
removes paragraph Sec.  648.201(g)(2) because the carryover provisions 
contained within only applied to fishing years 2021 and 2022 and are 
therefore no longer necessary.

Proposed Rule Comments and Responses

    We received two comment letters on the Framework 9 proposed rule 
during the public comment period. One joint comment letter was 
submitted on behalf of Conservation Law Foundation, Blue Planet 
Strategies, Natural Resources Defense Council, The Pew Charitable 
Trust, Whale and Dolphin Conservation, Wild Oceans, and interested 
stakeholders. The other comment letter was submitted by a member of the 
public. Consolidated responses are provided to similar comments on the 
proposed measures.

Herring Rebuilding Plan

    Comment 1: Environmental advocacy groups commented in support of 
the proposed herring rebuilding plan. In particular, they supported the 
proposed rebuilding plan because compared to the other rebuilding 
alternatives analyzed in Framework 9, the proposed rebuilding plan 
would rebuild the stock in as short a time as possible, consistent with 
Magnuson-Stevens Act requirements and relevant National Standard 1 
guidelines. They supported the proposed rebuilding plan's use of the 
existing ABC control rule that was implemented through Amendment 8, 
which accounts for herring's role as forage in the ecosystem. They 
supported that compared to the other rebuilding alternatives, the 
proposed rebuilding plan prioritizes the benefits of rebuilding the 
herring stock as quickly as possible over short-term economic 
interests. They stated that the proposed rebuilding plan favors the 
needs of fishing communities because these communities will benefit 
from a rebuilt herring population. They noted that these benefits 
extend beyond the herring fishing community to other fishing 
communities (e.g., commercial tuna fishery, lobster fishery) and 
industries (e.g., ecotourism) that rely on herring. They also supported 
the proposed rebuilding plan because it had a greater chance of 
rebuilding in as short a time as possible with a lower chance of a 
fishery closure.
    Response 1: We agree and have approved the herring rebuilding plan 
for the reasons discussed in the proposed rule and the preamble to this 
rule.
    Comment 2: The member of the public commented that responsible 
management would have prevented the need for a rebuilding plan.
    Response 2: We disagree. The best scientific information available 
on the status and biology of the stock from the 2020 Management Track 
Assessment show that herring spawning stock biomass (SSB) declined 
during 2014-2019, with 2019 SSB estimated to be the lowest value since 
the late 1980s. Data also indicate that herring recruitment has been 
declining since 2013, hitting a historically-low level in 2019. 
However, data show that fishing mortality on fully recruited fish by 
the U.S. mobile fleet has declined since 2010, with 2019 fishing 
mortality estimated to be the lowest value since the early 1990s. While 
there are several sources of uncertainty in the stock assessment, the 
assessment concluded that persistent low recruitment is the primary 
factor driving the status of the herring stock, and that regulations 
reducing U.S. herring catch have prevented overfishing from occurring.
    Comment 3: The member of the public commented that herring has been 
overfished for decades, and that MSY has long been exceeded.
    Response 3: We disagree. A 2018 benchmark assessment found that the 
herring stock was not overfished but was approaching an overfished 
condition, and that overfishing was not occurring. The herring stock 
was not formally determined to be overfished until 2020, based on the 
results of the 2020 herring management track assessment. Additionally, 
catch data indicate that during 2008-2020, the herring ACL was not 
exceeded. Therefore, the fishery has not been exceeding MSY.
    Comment 4: The member of the public commented that herring numbers 
have declined to the point where recruitment is too low to support 
annual harvest of the resource. They commented that there is no 
acceptable catch limit for a severely depleted stock, and that the 
importance of herring to the ecosystem merits a total ban on fishing. 
They commented that decisions allowing continued harvest of the 
resource do not constitute rebuilding.
    Response: Herring is an important forage species in the Northeast 
U.S. shelf ecosystem for a wide variety of fish, marine mammals, and 
birds. However, we disagree that fishing for herring should be 
prohibited at this time. The current conditions do not

[[Page 42965]]

warrant zero fishing mortality under the ABC control rule. 
Consequently, implementing a ban on herring fishing under current 
conditions would prevent the fishery from achieving optimum yield on a 
continuing basis, which is inconsistent with National Standard 1 of the 
Magnuson-Stevens Act. Additionally, prohibiting herring fishing could 
result in a shortage of bait for other fisheries (e.g., lobster, 
bluefin tuna), or could limit fishermen's ability to participate in 
other fisheries that overlap with herring (e.g., squid, Atlantic 
mackerel). Therefore, the negative impacts of prohibiting herring 
fishing could extend beyond the herring fishery itself and into other 
overlapping fisheries.
    This action establishes a rebuilding plan for herring that 
continues the use of the ABC control rule to set fishery 
specifications. The ABC control rule was developed using a management 
strategy evaluation (MSE) that accounted for herring's role as forage 
when evaluating ABC control rule options. 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 ABC control rule explicitly accounts for herring as forage in 
the ecosystem by reserving a portion of the catch for predators, 
limiting F to 80 percent of F<INF>MSY</INF> when biomass is high and 
setting it at zero when biomass is low. The ABC control rule was 
designed to balance the goals 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.
    Comment 5: The member of the public commented that the assumption 
that future recruitment will resemble long-term average recruitment is 
highly doubtful. They commented that it is unlikely that current stock 
can support future generations of herring long-term, and that continued 
removal of these fish will contribute to continued low recruitment.
    Response 5: We agree that current recruitment may not resemble 
long-term average recruitment. During the development of Framework 9, 
sensitivity analyses were completed in order to evaluate the risk 
associated with different recruitment assumptions. SSB projections were 
generated assuming (1) long-term average recruitment, consistent with 
the 2020 stock assessment, and (2) autocorrelated recruitment. Under 
the long-term average recruitment assumption, future recruitment is 
predicted to be equal to median recruitment during 1965-2017. Under the 
autocorrelated recruitment assumption, future recruitment is predicted 
to be similar to the previous year plus some random variation. The 
results of these sensitivity analyses showed that assuming 
autocorrelated recruitment results in recruitment values that are more 
similar to recent recruitment, and that are lower than the values that 
result when assuming long-term average recruitment. Assuming long-term 
average recruitment, the stock is projected to rebuild in 5 years (in 
fishing year 2026). Assuming autocorrelated recruitment, the stock is 
projected to rebuild in 9 years (in fishing year 2030). The next 
herring management track assessment is scheduled to be completed in 
June 2022. This assessment will provide NMFS and the Council with 
additional data on recent herring recruitment levels, and will provide 
the Council with an opportunity to evaluate rebuilding progress. Once 
the herring rebuilding plan is implemented, NMFS will review and 
evaluate the stock's rebuilding progress every 2 years, consistent with 
Magnuson-Stevens Act requirements.
    Comment 6: The member of the public commented that herring is a 
keystone species, and that the cost to the ecosystem of the removal of 
this species is not being accounted for in impact evaluations or 
management decisions. They commented that herring is more important to 
the ecosystem than it is to generating fishery profits.
    Response 6: We agree that herring is an important component of the 
Northeast U.S. shelf ecosystem. However, we disagree that management 
decisions do not take herring's role in the ecosystem into account. As 
previously mentioned, the ABC control rule is used to set fishery 
specifications to prevent overfishing and explicitly account for 
herring as forage in the ecosystem by reserving a portion of the catch 
for predators.
    National Standard 8 of the Magnuson-Stevens Act requires us to ``. 
. . take into account the importance of fishery resources to fishing 
communities by utilizing economic and social data that meet the 
requirement of paragraph (2) [i.e., National Standard 2], in order to 
(a) provide for the sustained participation of such communities, and 
(b) to the extent practicable, minimize adverse economic impacts on 
such communities'' consistent with conservation requirements. Herring 
is an important source of revenue for some Northeast fishing vessels. 
Data show that 51 vessels landed a total of 9,588 mt of herring, valued 
at $6.7 million, during fishing year 2020. The majority (87 percent) of 
herring landings were attributed to eight ports designated as ``primary 
ports'' for herring due to their substantial level of engagement with 
the fishery. Prohibiting herring fishing would lead to negative 
economic impacts to the vessels and communities that rely on revenue 
from this species. Additionally, prohibiting herring fishing would 
prevent the fishery from achieving optimum yield on a continuing basis, 
which is inconsistent with National Standard 1 of the Magnuson-Stevens 
Act.
    Further, as noted above, herring is an important source of bait for 
the lobster and bluefin tuna fisheries, and vessels that participate in 
the herring fishery often also participate in other co-occurring 
fisheries (e.g., mackerel, squid). Prohibiting herring fishing could 
result in a shortage of bait, or could limit fishermen's ability to 
access to co-occurring fisheries using gear that could catch herring. A 
prohibition on herring fishing under current conditions would 
unnecessarily constrain participation in these other fisheries, 
impacting their ability to achieve optimum yield and resulting in 
negative economic impacts to the vessels and communities that rely on 
those resources. Therefore, the impacts of prohibiting herring fishing 
could extend far beyond the herring fishery to other overlapping 
fishing communities as well.

Changes From the Proposed Rule

    This final rule makes revisions to the regulations at Sec.  
648.201(a)(1)(i)(B)(1) and (2) that were not included in the proposed 
rule. The revisions clarify regulations that were discussed and 
implemented in the Framework Adjustment 8 interim final rule. The 
revisions are consistent with the discussion in the Framework 8 rules 
and are made under our authority under section 305(d) of the Magnuson-
Stevens Act to promulgate regulations necessary to ensure that 
amendments to an FMP are carried out in accordance with the FMP and the 
Magnuson-Stevens Act. These revisions expressly state that we may 
implement Phase 2 of the possession limit adjustment process (2,000-lb 
(907.2-kg) possession limit) in Area 2 or 3 before implementing Phase 1 
(40,000-lb (18,143.7-kg) possession limit) in order to avoid overages 
and reduce the risk of catch exceeding the ABC. In years when herring 
sub-ACLs are low, the high volume nature of the fishery and the limited 
amount of time

[[Page 42966]]

between the fishery catching 90 percent of the Area 2 or 3 sub-ACL (the 
trigger for implementing Phase 1) and 98 percent of the sub-ACL (the 
trigger for implementing Phase 2) can make it impracticable and risky 
to implement the 40,000-lb (18,143.7-kg) limit before implementing the 
2,000-lb (907.2-kg) limit in these areas. The final rule implementing 
Framework 8 explained that in certain instances NMFS may need to bypass 
Phase 1 and immediately implement Phase 2 based on the most recent 
catch information, and we are revising the regulations in this final 
rule to expressly note this authority in the regulations and the 
reasons for exercising it. We received no comments on these provisions 
during the Framework 8 rulemaking, and the regulated community already 
understands that Phase 1 may be bypassed to immediately implement Phase 
2. In fact, since the two-step possession limit adjustment process was 
implemented in 2021, NMFS twice has bypassed the Phase 1 40,000-lb 
possession limit and instead immediately implemented the 2,000-lb 
possession limit in Area 3 (in March 2021 and again in February 2022).

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator is promulgating final regulations that have 
been determined to be consistent with the Herring FMP, provisions of 
the Magnuson-Stevens Act, and other applicable law.
    The Office of Management and Budget has determined that this final 
rule is not significant pursuant to Executive Order (E.O.) 12866.
    This final rule does not contain policies with federalism or 
takings implications as those terms are defined in E.O. 13132 and E.O. 
12630, respectively.
    This final rule does not contain any new information collection 
requirements, including reporting or recordkeeping requirements, for 
the purposes of the Paperwork Reduction Act.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a final regulatory 
flexibility analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: July 13, 2022.
Kimberly Damon-Randall,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
2. In Sec.  648.13, revise paragraphs (f)(1)(ii)(B), (f)(2)(ii), 
(f)(5), and (f)(6) to read as follows:


Sec.  648.13   Transfers at sea.

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

0
3. In Sec.  648.14:
0
a. Revise paragraphs (r)(1)(ii)(B);
0
b. Add paragraph (r)(1)(iv)(F); and
0
c. Revise paragraph (r)(1)(vii)(A).
    The revisions read as follows:


Sec.  648.14   Prohibitions.

* * * * *
    (r) * * *
    (1) * * *
    (ii) * * *
    (B) Attempt or do any of the following: Fish for, possess, 
transfer, receive, land, or sell, more than the possession limits 
specified at Sec.  648.201(a) from a management area subject to a 
possession limit adjustment or fishery closure, or from a river herring 
and shad catch cap closure area that has been closed to specified gear 
pursuant to Sec.  648.201(a)(4)(ii), if the vessel has been issued and 
holds a valid herring permit.
* * * * *
    (iv) * * *
    (F) Purchase, receive, possess, have custody or control of, sell, 
barter, trade or transfer, or attempt to purchase, receive, possess, 
have custody or control of, sell, barter, trade or transfer, more than 
the applicable 2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) 
possession limit of herring from a vessel if the herring is from a 
management area subject to a possession limit for Atlantic herring 
pursuant to Sec.  648.201(a).
* * * * *
    (vii) * * *
    (A) Transit or be in an area subject to a possession limit 
adjustment or fishery

[[Page 42967]]

closure pursuant to Sec.  648.201(a) with more than the applicable 
2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) herring possession 
limit, unless such herring were caught in an area not subject to the 
2,000 lb (907.2 kg) or 40,000 lb (18,143.7 kg) limit specified in Sec.  
648.201(a), all fishing gear is stowed and not available for immediate 
use as defined in Sec.  648.2, and the vessel is issued a permit 
appropriate to the amount of herring on board and the area where the 
herring was harvested.
* * * * *

0
4. In Sec.  648.201:
0
a. Revise paragraphs (a)(1)(i) introductory text, (a)(1)(i)(A), 
(a)(1)(i)(B)(1) and (2), (a)(1)(ii), (a)(2), (a)(3), (a)(4)(ii), (b), 
(c), (g)(1); and
0
b. Remove and reserve paragraph (g)(2).
    The revisions read as follows:


Sec.  648.201  AMs and harvest controls.

* * * * *
    (a) * * *
    (1) * * *
    (i) Possession Limit Adjustments--(A) Areas 1A and 1B Possession 
Limit Adjustment. If NMFS projects that catch from Area 1A or 1B will 
reach 92 percent of the annual sub-ACL allocated to Area 1A or Area 1B, 
before the end of the fishing year, or 92 percent of the Area 1A sub-
ACL allocated to the seasonal period as set forth in paragraph (d) of 
this section, beginning the date the catch is projected to reach 92 
percent of the sub-ACL, vessels may not attempt or do any of the 
following: Fish for, possess, transfer, receive, land, or sell more 
than 2,000 lb (907.2 kg) of Atlantic herring per trip in or from the 
applicable area, and from landing herring more than once per calendar 
day, except as provided in paragraphs (b) and (c) of this section. NMFS 
shall implement these restrictions in accordance with the APA.
    (B) * * *
    (1) Possession Limit Adjustment--Phase 1. If NMFS projects that 
catch from Area 2 or Area 3 will reach 90 percent of the annual sub-ACL 
allocated to Area 2 or Area 3 before the end of the fishing year, 
beginning the date the catch is projected to reach 90 percent of the 
applicable sub-ACL, vessels may not attempt or do any of the following: 
Fish for, possess, transfer, receive, land, or sell more than 40,000 lb 
(18,143.7 kg) of Atlantic herring per trip in or from the applicable 
area, and from landing herring more than once per calendar day, except 
as provided in paragraphs (b) and (c) of this section. Based on catch 
projections in relation to the amount of catch available between the 
applicable 90 percent (Phase 1) and 98 percent (Phase 2) sub-ACL 
adjustment thresholds, NMFS may bypass implementing this Phase 1, 
40,000-lb (18,143.7-kg) possession limit and instead implement the 
Phase 2, 2,000-lb (907.2-kg) possession limit described at Sec.  
648.201(a)(1)(i)(B)(2) as warranted to avoid impracticable transitions 
from Phase 1 to Phase 2 thresholds, avoid overages, or reduce the risk 
of exceeding the ABC. NMFS shall implement these restrictions in 
accordance with the APA.
    (2) Possession Limit Adjustment--Phase 2. If NMFS projects that 
catch will reach 98 percent of the annual sub-ACL allocated to Area 2 
or Area 3 before the end of the fishing year, beginning the date the 
catch is projected to reach 98 percent of the sub-ACL, vessels may not 
attempt or do any of the following: Fish for, possess, transfer, 
receive, land, or sell more than 2,000 lb (907.2 kg) of Atlantic 
herring per trip in the applicable area, and from landing herring more 
than once per calendar day, except as provided in paragraphs (b) and 
(c) of this section. Based on catch projections, NMFS may implement 
this Phase 2, 2,000-lb (907.2-kg) possession limit without first 
implementing the Phase 1, 40,000-lb (18,143.7-kg) possession limit 
described at Sec.  648.201(a)(1)(i)(B)(1) as warranted to avoid 
impracticable transitions from Phase 1 to Phase 2 thresholds, avoid 
overages, or reduce the risk of exceeding the ABC. NMFS shall implement 
these restrictions in accordance with the APA.
    (ii) Herring fishery closure. If NMFS projects that catch will 
reach 95 percent of the ACL before the end of the fishing year, 
beginning the date the catch is projected to reach 95 percent of the 
ACL, vessels may not attempt or do any of the following: Fish for, 
possess, transfer, receive, land, or sell more than 2,000 lb (907.2 kg) 
of Atlantic herring per trip in all herring management areas, and from 
landing herring more than once per calendar day, except as provided in 
paragraphs (b) and (c) of this section. NMFS shall implement these 
restrictions in accordance with the APA.
    (2) When the Regional Administrator has determined that the GOM 
and/or GB incidental catch cap for haddock in Sec.  
648.90(a)(4)(iii)(D) has been caught, no vessel issued a Federal 
Atlantic herring permit and fishing with midwater trawl gear in the 
applicable Accountability Measure (AM) Area, i.e., the Herring GOM 
Haddock AM Area or Herring GB Haddock AM Area, as defined in Sec.  
648.86(a)(3)(ii)(A)(2) and (3) of this part, may fish for, possess, 
transfer, receive, land, or sell herring in excess of 2,000 lb (907.2 
kg) per trip in or from the applicable AM Area, and from landing 
herring more than once per calendar day, unless all herring possessed 
and landed by a vessel were caught outside the applicable AM Area and 
the vessel's gear is not available for immediate use as defined in 
Sec.  648.2 while transiting the applicable AM Area. Upon this 
determination, the haddock possession limit is reduced to 0 lb (0 kg) 
in the applicable AM area for a vessel issued a Federal Atlantic 
herring permit and fishing with midwater trawl gear or for a vessel 
issued a Category A or B Herring Permit fishing on a declared herring 
trip, regardless of area fished or gear used, in the applicable AM 
area, unless the vessel also possesses a Northeast multispecies permit 
and is operating on a declared (consistent with Sec.  648.10(g)) 
Northeast multispecies trip.
    (3) ACL and sub-ACL overage deductions. (i) If NMFS determines that 
total catch exceeded an Atlantic herring sub-ACL by 10 percent or less 
and the ACL was not exceeded in a given fishing year, then NMFS shall 
not deduct any amount of the overage from the applicable sub-ACL or ACL 
in the fishing year following total catch determination.
    (ii) If NMFS determines that total catch exceeded an Atlantic 
herring sub-ACL by greater than 10 percent and the ACL was not exceeded 
in a given fishing year, then NMFS shall subtract the amount of the 
overage above 10 percent from the ACL and applicable sub-ACL in the 
fishing year following total catch determination. For example, if catch 
exceeded the Area 1A sub-ACL by 15 percent in Year 1 and the ACL was 
not exceeded, the amount equal to the 5 percent overage would be 
deducted from the ACL and Area 1A sub-ACL in Year 3.
    (iii) If NMFS determines that total catch exceeded an Atlantic 
herring sub-ACL by any amount and the ACL was also exceeded in a given 
fishing year, then NMFS shall subtract the full amount of the sub-ACL 
overage from the applicable sub-ACL, and the full amount of the ACL 
overage from the ACL, in the fishing year following total catch 
determination. For example, if catch exceeded the Area 1A sub-ACL by 15 
percent and the ACL by 5 percent in Year 1, the amount equal to the 15-
percent overage would be deducted from the Area 1A sub-ACL and the 
amount equal to the 5-percent overage would be deducted from the ACL in 
Year 3.
    (iv) If NMFS determines that total catch exceeded the Atlantic 
herring ACL and no herring sub-ACLs were exceeded in a given fishing 
year, then NMFS shall

[[Page 42968]]

subtract the full amount of the overage from the ACL in the fishing 
year following total catch determination. For example, if catch 
exceeded the herring ACL by 2 percent in Year 1, the amount equal to 
the 2-percent overage would be deducted from the ACL in Year 3, and no 
sub-ACLs would be reduced.
    (v) NMFS shall make overage determinations and implement any 
changes to ACLs or sub-ACLs, through notification in the Federal 
Register, and if possible, prior to the start of the fishing year 
during which the reduction would occur.
    (4) * * *
    (ii) Beginning on the date that NMFS projects that river herring 
and shad catch will reach 95 percent of a catch cap for specified gear 
applicable to an area specified in Sec.  648.200(f)(7) for the 
remainder of the fishing year, vessels may not attempt or do any of the 
following: Fish for, possess, transfer, receive, land, or sell more 
than 2,000 lb (907.2 kg) of Atlantic herring per trip using the 
applicable gear in the applicable catch cap closure area, specified in 
Sec.  648.200(f)(8), and from landing herring more than once per 
calendar day, except as provided in paragraphs (b) and (c) of this 
section. NMFS shall implement these restrictions in accordance with the 
APA.
    (b) A vessel may transit an area that is limited to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section with greater than 2,000 lb (907.2 kg) or 
greater than 40,000 lb (18,143.7 kg) of herring on board, provided such 
herring were caught in an area or areas not subject to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section, and that all fishing gear is stowed and 
not available for immediate use as defined in Sec.  648.2, and provided 
the vessel is issued a vessel permit appropriate to the amount of 
herring on board and the area where the herring was harvested.
    (c) A vessel may land an area that is limited to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section with greater than 2,000 lb (907.2 kg) or 
greater than 40,000 lb (18,143.7 kg) of herring on board, provided such 
herring were caught in an area or areas not subject to the 2,000-lb 
(907.2-kg) limit or 40,000-lb (18,143.7-kg) limit specified in 
paragraph (a) of this section, and that all fishing gear is stowed and 
not available for immediate use as defined in Sec.  648.2, and provided 
the vessel is issued a vessel permit appropriate to the amount of 
herring on board and the area where the herring was harvested.
* * * * *
    (g) * * *
    (1) Subject to the conditions described in this paragraph (g), 
unharvested catch in a herring management area in a fishing year (up to 
10 percent of that area's sub-ACL) shall be carried over and added to 
the sub-ACL for that herring management area for the fishing year 
following the year when total catch is determined. For example, NMFS 
will determine total catch from Year 1 during Year 2, and will add 
carryover to the applicable sub-ACL(s) in Year 3. All such carryover 
shall be based on the herring management area's initial sub-ACL 
allocation for Year 1, not the sub-ACL for Year 1 as increased by 
carryover or decreased by an overage deduction, as specified in 
paragraph (a)(3) of this section. All herring caught from a herring 
management area shall count against that area's sub-ACL, as increased 
by carryover. For example, if 100 mt of herring is added as carryover 
from Year 1 to a 5,000 mt sub-ACL in Year 3, catch in that management 
area would be tracked against a total sub-ACL of 5,100 mt. NMFS shall 
add sub-ACL carryover only if catch does not exceed the Year 1 ACL, 
specified consistent with Sec.  648.200(b)(3). The ACL, consistent with 
Sec.  648.200(b)(3), shall not be increased by carryover specified in 
this paragraph (g).
    (2) [Reserved]
* * * * *
[FR Doc. 2022-15351 Filed 7-18-22; 8:45 am]
BILLING CODE 3510-22-P


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