2014-28131. Fisheries of the Northeastern United States; Atlantic Herring Fishery; Framework Adjustment 3

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS implements final regulations to establish a process for setting river herring (alewife and blueback) and shad (American and hickory) catch caps for the herring fishery. This action also sets these catch caps for the 2014 and 2015 fishing years. The river herring and shad caps in the herring fishery will limit how much of these species will be caught in the herring fishery. This action will allow the New England Fishery Management Council to set river herring and shad catch caps and associated measures in future years through specifications or frameworks, whichever is appropriate. The measures in this action are a positive step in conservation efforts for river herring and shad.

DATES:

Effective December 4, 2014.

ADDRESSES:

The New England Fishery Management Council developed an environmental assessment (EA) for this action that describes the action and other considered alternatives and provides a thorough analysis of the impacts of these final measures and alternatives. Copies of the framework, the EA, and the Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The EA/RIR/IRFA is accessible via the Internet at http://www.greateratlantic.fisheries.noaa.gov/​sustainable/​species/​atlherring/​index.html.

Copies of the small entity compliance guide are available from John K. Bullard, 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/​sustainable/​species/​atlherring/​index.html.

FOR FURTHER INFORMATION CONTACT:

Carrie Nordeen, Fishery Policy Analyst, 978-281-9272, fax [phone].

SUPPLEMENTARY INFORMATION:

Background

The New England Fishery Management Council adopted Framework Adjustment 3 to the Atlantic Herring Fishery Management Plan (FMP) at its September 24, 2013, meeting. The Council submitted Framework 3 to NMFS for review on January 3, 2014, and resubmitted it to NMFS on March 26, 2014. The Council reviewed the Framework 3 proposed rule regulations as drafted by NMFS, and deemed them to be necessary and appropriate as specified in section 303(c) of the Magnuson-Stevens Fishery Conservation and Management Act. The proposed rule for Framework 3 published in the Federal Register on June 13, 2014 (79 FR 33879), with a 30-day public comment period that ended July 14, 2014. NMFS received four comments on the proposed measures.

Framework 3 establishes a process for setting and modifying catch caps for river herring (alewife and blueback) and shad (American and hickory) catch caps in the Atlantic herring fishery (herring fishery), and sets specific river herring and shad catch caps for the 2014 and 2015 fishing years. Catch of river herring and shad for 2014 will count against the cap in 2014 after the effective date of this final rule.

River herring and shad are anadromous species that may co-occur seasonally with Atlantic herring and are harvested as a non-target species in the fishery. When river herring are encountered in the herring fishery, they are either discarded at sea (bycatch) or, because they closely resemble herring, they are retained and sold as part of the herring catch (incidental catch). According to the most recent river herring stock assessment (May 2012) conducted by the Atlantic States Marine Fisheries Commission (ASMFC), river herring populations have declined from historic levels and many factors will need to be addressed to allow their recovery, including: Fishing in both state and Federal waters; improvement of river passageways and water quality; reduced predation; and understanding the effects of climate change. The Council has been working on addressing river herring and shad catch issues in the herring fishery, most recently in Amendment 5 to the FMP (79 FR 8786; February 13, 2014) (Amendment 5). Amendment 5 allowed for river herring and shad catch caps to be implemented through a framework adjustment. Framework 3 allows the Council to set river herring and shad catch caps and associated measures in future years through specifications or frameworks, whichever is appropriate.

Framework 3 outlines a process for setting and modifying the river herring and shad catch caps that includes: Identification of gears, areas, and trips that would be subject to the catch caps; changes to reporting requirements for vessels issued limited access and Herring Management Areas 2/3 open access herring permits; criteria that would trigger the closure of an area to directed herring fishing for a particular gear type; and a list of management measures related to setting catch caps that can be modified through the herring specifications process and/or framework adjustment process.

Area and Gear Provisions of the River Herring and Shad Catch Caps

Framework 3 establishes four distinct Catch Cap Areas that could have associated catch caps: Gulf of Maine (GOM); Cape Cod (CC); Southern New England/Mid-Atlantic (SNE/MA); and Georges Bank (GB) (Table 1). During a given fishing year, catch of river herring and shad from all herring trips landing more than 6,600 lb (3 mt) of herring will apply against the catch caps for specific fishing gears and areas. The Council considered alternatives for catch caps for all gear types used in the herring fishery, but ultimately decided to adopt catch caps for midwater trawl gear in the GOM, CC, and SNE/MA, as well as bottom trawl gear in SNE/MA. The selection of these gear types in these areas is based on recent fishery data that indicate where river herring and shad interactions are occurring, and to what extent they may be occurring by each gear type used in the herring fishery. Because current catch data indicate that river herring and shad are not caught by the herring fishery in GB, the Council did not specify catch caps for GB during 2014-2015. The Council may consider adjustments to the selected gears and areas that have associated catch caps in a future management action.

Table 1—River Herring and Shad Catch Cap Areas

Catch cap areas	Statistical areas
GOM	464, 465, 467, 511-515.
CC	521.
GB	522, 525-526, 541-543, 561-562, 640.
SNE/MA	533-534, 537-539, 611-616, 621-629, 631-639, 700-705, 707-711.

Reporting Requirements and Monitoring the River Herring and Shad Catch Caps

This action adjusts current Vessel Monitoring System (VMS) trip notification requirements in order for NMFS to monitor the catch caps. Vessel operators will have to report kept catch of all species by statistical area daily via VMS catch reports. The Council may consider adjustments to trip notification requirements in the future as necessary to ensure the effectiveness of the catch caps.

The Greater Atlantic Regional Fisheries Office will monitor the catch cap by estimating the total river herring and shad catch in the herring fishery using data from observed hauls on herring trips and extrapolating this data to unobserved herring trips. The rate of river herring and shad catch will be estimated as the ratio of observed river herring and shad catch (including discards) to the kept catch of all species on observed trips that land greater than 6,600 lb (3 mt) of herring. Total river herring and shad catch (in weight) will then be derived by multiplying the catch rate by total pounds of all kept species on all trips that land greater than 6,600 lb (3 mt) of herring. This methodology is identical to that used for catch cap accounting in the mackerel fishery. More information about our monitoring methodology for the river herring and shad catch can be found at http://www.greateratlantic.fisheries.noaa.gov/​aps/​monitoring/​riverherringshad.html.

River Herring and Shad Catch Triggers and Closure Areas

This action specifies that when 95 percent of the river herring and shad catch for a gear-specific catch cap is projected to be reached in a Catch Cap Area, all vessels fishing with that gear type in the respective closure area will be subject to a reduced herring possession limit of 2,000 lb (0.9 mt) per trip, per calendar day, in or from that area for the remainder of the fishing year. Vessels using other gear types in the closure area will not be affected in that those vessels will not be subject to the 2,000-lb (0.9-mt) possession limit and could continue directed fishing for herring in those areas with other gear types. Vessels participating in the herring fishery outside of the catch cap closure area(s) will be able to use any gear type (consistent with other regulations) until the applicable herring annual catch limits/sub-annual catch limits are harvested. This 95-percent catch trigger is consistent with the trigger implemented for the river herring and shad catch cap in the mackerel fishery (79 FR 18834; April 4, 2014).

The Catch Cap Closure Areas are identical to the Catch Cap Areas for GB, GOM, and CC. For SNE/MA, the catch cap closure area is the inshore portion of the SNE/MA Catch Cap Area (Table 2).

Table 2—River Herring and Shad Catch Cap Closure Areas

Catch cap closure areas	Statistical areas
GOM	464, 465, 467, 511-515.
CC	521.
GB	522, 525-526, 541-543, 561-562, 640.
SNE/MA	537-539, 611-616, 621-623, 625-627, 631-632, 635-636.

Modifying Future River Herring and Shad Catch Cap Management Measures

This action specifies the mechanisms to modify measures related to the catch caps. Measures related to the catch cap process that could be established in this framework may be modified in the future through the specifications or framework adjustment process, depending on whether the modification is suitable for either specifications or framework adjustment. New or additional measures (e.g., new accountability measures to become effective when a catch cap is reached), or measures outside the scope already analyzed, could be implemented through another framework action or an amendment.

River Herring and Shad Catch Caps for Fishing Years 2014-2015

This action sets river herring and shad catch caps for the 2014-2015 fishing years (January 1-December 31) (Table 3). Catch of river herring and shad for 2014 will only be counted from the effective date of this action until December 31, 2014. All the catch caps in the GOM, CC, and SNE/MA Catch Cap Areas are based on the median value of estimated river herring and shad catch from 2008-2012. Current data are not sufficient to definitively determine the magnitude of potential biological effects of such a cap on river herring and shad stocks. Using the median values is expected to provide an incentive for the industry to continue to avoid river herring and shad and help to minimize overall river herring and shad catch to the extent practicable, while still providing the opportunity to fully utilize the herring annual catch limit if the fleet can avoid river herring and shad.

Table 3—River Herring and Shad Catch Caps by Area and Gear Type for 2014 and 2015

Catch cap area	Gear type	Catch cap (mt)
GOM	Midwater Trawl	86
CC	Midwater Trawl	13
SNE/MA	Midwater Trawl	124
	Bottom Trawl	89
GB	N/A	N/A

Due to very low observed river herring and shad catch in GB, the Council did not recommend a catch cap in the GB Catch Cap Area for the 2014-2015 fishing years. If the catch of river herring and shad increases in this area, the Council could consider setting a cap for this area in a future herring specifications.

Corrections

This rule also contains minor corrections to existing regulations. NMFS makes these adjustments under the authority of section 305(d) to the Magnuson-Stevens Act, which provides that the Secretary of Commerce may promulgate regulations necessary to ensure that amendments to a fishery management plan are carried out in accordance with the FMP and the Magnuson-Stevens Act. These adjustments, which are identified and described below, are necessary to clarify current regulations or the intent of the FMP and would not change the intent of any regulations.

NMFS clarifies the coordinates for the herring management areas, modified haddock stock areas, and river herring monitoring/avoidance areas at § 648.200(f) to more accurately define various areas. For example, some areas were intended to be based on statistical areas, but the previous coordinates were unintentionally misaligned with those statistical areas. This action updates those coordinates to correctly align them with the statistical areas upon which they were based. In addition, some area boundaries are being revised to correctly incorporate coastal bodies of water, as well as the legally defined U.S. Canada Maritime boundary. This action also moves the coordinates for the GOM and GB modified haddock stock areas in the regulations from § 648.10 to § 648.200(f) so that all the herring-related management areas are in a single location for easy reference. Finally, this action adds a possession limit regulation to § 648.204(a) to describe the possession limit requirements of the Herring Management Areas 2/3 Open Access Permit. This regulation was overlooked during rulemaking for Herring Amendment 5 and is consistent with the intent of that action.

Comments and Responses

NMFS received four comment letters in response to the proposed rule from The Herring Alliance; Wild Oceans; the Coalition for the Atlantic Herring Fishery's Orderly, Informed and Responsible Long Term Development (CHOIR); and an individual. The following summarizes the comments and provides our responses.

Comment 1: An individual commented that depleted runs of blueback herring and alewife in rivers and streams of Massachusetts suggest that conservation and management measures have not achieved sustainable levels of these fish. He urged NMFS to use precautionary management measures for the herring fishery to allow us to evaluate the benefits that restrictive and conservative measures would have on populations of river herring. The Herring Alliance noted that river herring and shad populations are near historic lows and that without sufficient federal management to complement state conservation measures, river herring and shad populations will not recover and fisheries for these species are unlikely to reopen.

Response: River herring are managed by the ASMFC and the individual Atlantic coastal states. According to the most recent ASMFC river herring stock assessment (May 2012), river herring populations have declined from historic levels and many factors will need to be addressed to allow their recovery, including fishing (in both state and Federal waters), river passageways, water quality, predation, and climate change. In an effort to aid in the recovery of depleted or declining stocks, the ASMFC, in cooperation with individual states, prohibited state waters commercial and recreational fisheries that did not have approved sustainable fisheries management plans, effective January 1, 2012. NMFS considers river herring to be a species of concern, but recently (78 FR 48944, August 12, 2013) determined that listing river herring, as either threatened or endangered, under the Endangered Species Act was not warranted. NMFS established a technical working group and will continue to work closely with the ASMFC and others to develop a long-term, dynamic conservation plan for river herring from Canada to Florida. The working group will evaluate the impact of ongoing restoration and conservation efforts, as well as new fisheries management measures, which should benefit the species. It will also review new information produced from ongoing research, including genetic analyses, ocean migration pattern research, and climate change impact studies, to assess whether recent reports, showing higher river herring counts in the last 2 years, represent sustained trends. NMFS intends to revisit its river herring status determination within the next 5 years. In addition to the these actions, Amendment 5 to the FMP established river herring monitoring and avoidance areas for the herring fishery. NMFS asserts that setting river herring and shad catch caps in the herring fishery is an additional positive step toward reducing the impacts of herring fishing on river herring and shad. The caps should further help minimize river herring and shad catch in the herring fishery to the extent practicable and increase the incentive for the herring fishery to avoid river herring and shad catch when possible.

Comment 2: Wild Oceans, CHOIR, and the Herring Alliance urged NMFS to approve and implement Framework 3, including the process for setting river herring and shad caps, applicable areas and gears, and the caps and for 2014 and 2015.

Response: NMFS is implementing the measures as recommended by the Council.

Comment 3: Wild Oceans, CHOIR, and the Herring Alliance urged NMFS to quickly implement the measures in Framework 3. Wild Oceans commented that swift implementation is necessary in part because it believes that the measures to limit river herring and shad catch in the herring fishery are overdue. The Herring Alliance, Wild Oceans, and CHOIR urged NMFS to waive the 30-day delay in effectiveness required by the Administrative Procedure Act. CHOIR and the Herring Alliance requested that NMFS retroactively apply the river herring and shad catch caps to catch of herring, river herring, and shad, beginning January 1, 2014. The Herring Alliance believes that the herring fishing fleets had sufficient notice that this rule would take effect in 2014, and that the rule will not result in costs related to on-board changes to fishing vessels or changes to bycatch estimation methodologies.

Response: NMFS has determined that good cause exists to waive the 30-day delay in effectiveness for this action on the basis that it is important to implement the catch caps for the remainder of 2014 and it is in the public's interest to do so. The Council submitted its final version of Framework 3 for NMFS review in March 2014, meaning that final NMFS action would occur well after the herring fishery was underway. As a result, NMFS intended from the outset to implement these measures upon publication due to the need and the public interest. Even though it is near the end of 2014 and only one area remains open (Area 2) to the herring fishery, NMFS believes that it is still important to implement the measures upon publication. To further delay implementation would reduce the benefits of the caps as the herring fishery will likely have harvested the vast majority of its catch allocated for 2014. The Council intended that the caps apply to as much as the 2014 herring fishery as possible, but it did not recommend a retroactive application of the cap. The analysis to support this action does not describe retroactive catch caps nor does it analyze retroactive catch caps. Therefore, NMFS cannot retroactively apply the catch caps to the beginning of 2014. NMFS did retroactively apply catch against the river herring and shad cap for the mackerel fishery implemented in April 2014 because the Mid-Atlantic Council recomended and analyzed applying river herring and shad catch against the cap for all of 2014. The Council's timeline for submission provided for implementation late in the 2014 fishing year. Although the herring fishing fleets likely knew that the Council recommended this action, it also likely knew that implementation is dependent upon NMFS review and approval. Counting all river herring and shad catch since January 1, 2014, would unfairly penalize the herring fleet for measures that were not effective for the majority of their fishing year in 2014.

Comment 4: The Herring Alliance, Wild Oceans, and CHOIR all expressed concern that NMFS could have difficulty monitoring the catch caps with a 95-percent closure threshold. They commented that difficulty in monitoring the herring fishery could result in late closure, causing the herring fishery to exceed the applicable river herring and shad caps. The Herring Alliance commented that it is concerned that the measures in Framework 3 are not enough to account for scientific and management uncertainty surrounding river herring and shad. The Herring Alliance commented that the 95-percent closure threshold is not conservative enough in light of a recent catch overage in Herring Management Area 1B and frequent historical overages of the area-based quotas in the herring fishery. CHOIR urged NMFS to be highly vigilant in monitoring the caps, and the Herring Alliance commented that a lower cap is warranted until NMFS is able to provide observer coverage necessary to accurately monitor these catch caps.

Response: NMFS has a monitoring program in place for the herring fishery that enables it to project a closure date based on daily catch and weekly dealer data. NMFS is vigilant in monitoring this fishery and has effectively closed herring management areas before the area allocations the majority of the time. NMFS asserts that the 95-percent threshold is sufficient, but will advise the Council to reassess this threshold if it does not provide a sufficient buffer in the event the herring fishery has a very rapid harvest rate. NMFS cannot implement a lower closure threshold because one was not recommended by the Council. NMFS cannot implement different measures than what the Council recommended; it can only approve or disapprove the measures recommended by the Council.

Comment 5: CHOIR commented that NMFS should pay close attention to new data from herring fishing activity on Georges Bank and should support the development and implementation of a cap on Georges Bank. The Herring Alliance commented that NMFS should approve the cap designated for George Bank, ensure sufficient observer coverage in that area to accurately monitor catch, and establish a limit in the next appropriate action.

Response: NMFS and the Council will work together to examine catch on Georges Bank and all other herring management areas to determine whether to establish caps on Georges Bank or adjust the caps through the herring fishery specifications process.

Comment 6: The Herring Alliance, Wild Oceans, and CHOIR all stressed the importance of coordinating river herring and shad catch caps between the Mid-Atlantic and New England Councils. Commenters suggest that this would ensure that the Councils and NMFS sufficiently address river herring and shad catch in areas where the herring and mackerel fisheries overlap, and where vessels catch substantial amounts of both herring and mackerel on the same trip. Comments urged the creation of a single river herring and shad cap to address herring and mackerel fishery overlap. Comments recognized that the Councils and NMFS could develop joint caps for the 2016 fishing year, but not for 2014 and 2015.

Response: NMFS agrees that the New England and Mid-Atlantic Councils should work cooperatively to establish river herring and shad caps for the herring and mackerel fisheries that do not cause management inconsistency in the two fisheries, in particular where they overlap. The Council has indicated its intent in the Framework 3 document to work with the Mid-Atlantic Council in establishing a joint cap.

Comment 7: The Herring Alliance commented that the river herring and shad caps are a first step in management of river herring and shad, but ultimately insufficient, to prevent further population declines and rebuild these species. It commented that the Magnuson-Stevens Act requires all stocks in need of conservation and management to be added to an FMP, and therefore believes that river herring and shad must be added to the FMP as a federally managed species, as well as any other fishery FMP that manage fisheries that catch river herring and shad.

Response: Measures to help minimize the catch of any species may be added to a Federal FMP without also including that species in that FMP's stock in the fishery definition. Many measures have been implemented in the FMP to minimize bycatch to the extent practicable, most recently in Amendment 5 to the FMP. In addition to those measures, implementing river herring and shad catch caps in the FMP is an additional way to minimize river herring and shad catch to the extent practicable in Federal waters while the effects of various threats (e.g., water quality, fish passage, predation, habitat loss, fishing mortality, and climate change) on river herring and shad continue to be evaluated. NMFS and the Council continue to monitor and evaluate whether further management measures to address river herring and shad catch are necessary, including whether to include river herring and shad as stocks in the fishery.

There are many factors that must be considered when determining whether a species will be included as a stock in a fishery in a fishery management plan. Each Fishery Management Council is required by the Magnuson-Stevens Act to develop FMPs “for each fishery under its authority that requires conservation and management” (16 U.S.C. 1852(h)(1)). If a stock in a fishery is determined to be overfished or subject to overfishing, it must be included in an FMP. Section 303(a)(2) of the Magnuson-Stevens Act requires that each FMP contain, among other things, a description of the species of fish involved in the fishery, and a “fishery” is defined as “one or more stocks of fish that can be treated as a unit for purposes of conservation and management and that are identified on the basis of geographic, scientific, technical, recreational, or economic characteristics” (16 U.S.C. 1802(13)). The National Standard 1 Guidelines provide further guidance that Councils should determine “which specific target stocks and/or non-target stocks to include in the fishery,” as well as whether it would be appropriate to designate any “ecosystem component species” (50 CFR 600.310(d)(l)). When considering which stocks “can be treated as a unit for purposes of conservation and management,” and therefore constitute a “fishery,” National Standard 3 requires that, “[t]o the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination” (16 U.S.C. 1851(a)(3)). The National Standard 3 Guidelines further instruct that the choice of a management unit “depends on the focus of the FMP's objectives, and may be organized around biological, geographic, economic, technical, social, or ecological perspectives” (50 CFR 600.320(d)(l)). Additionally, conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication (16 U.S.C. 1851(a)(7)). Stocks in the fishery classifications must be monitored “on a regular basis” to determine whether reclassification through and Amendment to the FMP is necessary (50 CFR 600.310(d)(6)).

We considered whether the FMP's definition of stocks in the fishery complied with the Magnuson-Stevens Act in relation to Amendment 4 to the FMP in response to a court order in Flaherty v. Pritzker, 2014 WL 642658 (D.D.C. Feb. 19, 2014), and we found that it complied with the Magnuson-Stevens Act. The best available information at that time supported a conclusion that: It is impracticable to treat river herring and shad throughout their range in federal waters as a unit; there is insufficient information to support a finding that they are in need of conservation and management under the Magnuson-Stevens Act; and it would be impracticable and unnecessarily duplicative to undertake management and conservation of them in Federal waters at that time.

The states have historically managed shad and river herring in state waters under the ASMFC's Interstate Fishery Management Plan (ISFMP) for Shad and River Herring. In 1998, Amendment 1 to the ASMFC's ISFMP for Shad and River Herring prohibited a commercial ocean fishery for American shad, established fishing mortality targets for specific American shad river fisheries, and established a daily fish limit in recreational fisheries for American shad and hickory shad. In 2009, Amendment 2 to the ISFMP for Shad and River Herring required each state to close its rivers to river herring fishing unless that state could develop a plan that ensured that such fishing could be maintained at sustainable levels. Any such plans had to first be submitted to the ASMFC's Shad and River Herring Management Board for approval before a state could open the river to fishing. State river herring fisheries without such plans were required to close by January 1, 2012. In 2010, Amendment 3 to the ISFMP for Shad and River Herring established requirements for states to develop sustainable fishery plans in order to maintain a commercial American shad fishery. American shad fisheries without such plans were required to close by January 1, 2013.

The ASMFC's Shad and River Herring Management Board recommends river herring and shad management measures. At no time has the Shad and River Herring Management Board recommended that we create an FMP for river herring and shad in federal waters or designate river herring and/or shad as a stock in any Federal fishery. In the past, when the ASMFC believed that management in Federal waters was warranted, it requested the development of a Federal FMP, as in the case of lobster, striped bass, weakfish, and horseshoe crab.

Information currently available supports a conclusion that it is impracticable to treat shad and river herring as a “unit” on a regional or coast-wide scale as contemplated by National Standard 3. ASMFC stock assessments evaluated individual rivers. The best available information suggests that river herring and shad from different natal rivers co-occur in the ocean, but the full extent and rate of mixing are uncertain. Catch data do not always differentiate between river herring and shad species and have not been determined to sufficiently link fish caught in the ocean with individual source rivers or stocks.

The best available science is insufficient to support a finding that conservation and management of these stocks in Federal waters is necessary. The best available science for river herring was a 2012 benchmark assessment. This assessment found that of the 52 stocks of alewife and blueback herring for which data were available for use in the assessment, 23 were depleted from historic levels, 1 stock was increasing, and the status of 28 other stocks could not be determined because of insufficient data. The assessment was insufficient to conclude overfishing was occurring or that the stocks were overfished. Depletion was used instead of overfished because of the many factors (e.g., water quality, fish passage, predation, habitat loss, and climate change) contributing to river herring's declining abundance. Also, the river herring assessment provided only river-by-river information, and did not include information about stocks regionally or coast-wide. Likewise, the 2007 shad stock assessment addressed stocks in 32 rivers. Of the 32 rivers, over half (19) were either stable or could not be determined. The assessments are available at: http://www.asmfc.org. The lack of adequate data prevented the ASMFC from developing estimates of abundance and fishing mortality in either assessment. The best scientific information currently available shows that encounters between the herring fishery in Federal waters and river herring are relatively rare (75 percent of sampled trips had no encounters), and that estimates about river herring catch in the herring fishery in Federal waters are highly variable and depend on gear, area, and season. Additionally, data suggest that vessels using small-mesh bottom trawl, and targeting species other than Atlantic herring, are also encountering river herring. Because of the variability in encounters with river herring, there is a need for adequate sampling of the herring fishery by observers before any conclusions could be made based on the available information. In light of these significant data limitations, there is insufficient information to support a finding that river herring and shad are overfished or subject to overfishing. Further, given the scale and uncertainty associated with this information, including interactions between the herring fishery and river herring, there is insufficient information to support a finding that the river herring or shad stocks coast-wide otherwise require conservation and management.

Information currently available demonstrates that conservation and management of river herring and/or shad in Federal waters would be impracticable and unnecessarily duplicative. The limited available stock status information is primarily related to state waters. Data on the incidental catch of river herring and shad in Federal waters are uncertain. Given these limitations, relying on the ASMFC's management of river herring and shad is reasonable. As more information is gathered about the incidental catch of river herring and shad in Federal waters, and as stock status information is generated on a regional and/or coast-wide scale, the potential benefits of Federal management to these stocks, the regional economy, and competing stakeholder groups may outweigh the costs and duplication with ASMFC management.

While this comment reflects public interest in river herring and shad, it is not objective, science-based information that would satisfy NMFS's obligation to rely on the best available science. Typically, when new science is considered, it takes the form of a peer-reviewed journal article or a peer-reviewed stock assessment. Currently, the best available science on river herring and shad is the ASMFC's stock assessments. Amendment 5 to the FMP implemented bycatch measures to address the FMP's impact on river herring and shad and minimize bycatch of these species to the extent practicable. Those measures included increased at-sea sampling, bycatch accounting, promoting cooperative efforts with the industry to minimize bycatch, and set the foundation for implementing river herring and shad catch caps in this action. Data are not robust enough at this time to determine biologically-based river herring and shad catch caps and/or the potential impacts of such catch caps on the river herring and shad stocks. Setting a cap on the catch of these species in the herring fishery is a proactive action intended to manage and minimize catch to the extent practicable while allowing the herring fishery to continue to operate and fully utilize optimum yield in the upcoming fishing years, if river herring and shad can be avoided. The catch of river herring and shad in the herring fishery would likely be less under a catch cap. Additionally, there would be further incentive for the fleet to avoid river herring and shad to avoid triggering area closures resulting from the catch caps being fully harvested.

Establishing river herring and shad as stocks in FMP and implementing all of the MSA required provisions would require an amendment and is not appropriate for this framework adjustment. The river herring and shad catch caps implemented in this action provide further incentive for the herring industry to avoid river herring and shad catch and minimize the FMP's impact to the extent practicable. In light of the existing management of directed fisheries for river herring and shad in state waters through the ASMFC's ISFMP, and the information currently available, we conclude that the Council's decision to implement these catch caps while continuing the FMP's designation of Atlantic herring as the only stock in the fishery is reasonable and complies with the Magnuson-Stevens Act. Further, the Council has added the consideration of whether it should include river herring and shad as stocks in the fishery in the FMP as one of several management priorities that it expects to address in the upcoming year. We have urged the Council to consider this issue and plan to encourage them to make this a priority action. If the Council finds that river herring and shad should be included as stocks in the FMP, it will initiate an amendment to do so.

Comment 8: The Herring Alliance commented that NMFS must ensure that the methodology to set catch caps adheres to National Standard 2, National Standard 9, and the goals and objectives of Framework 3 (which the Herring Alliance stated is to reduce all catch—bycatch and incidental catch—of river herring and shad from recent levels).

Response: NMFS has determined that the measures in Framework 3 are consistent with the Magnuson-Stevens Act, the FMP, and applicable laws. Part of this decision includes NMFS's determination that the action is based on the best available science as required by National Standard 2, and helps the FMP minimize bycatch and bycatch mortality to the extent practicable, as required by National Standard 9.

The Council considered the most recent assessments for river herring and shad when developing these catch caps. These assessments are the best available science for river herring and shad. Data do not appear to be robust enough to determine a biologically based catch cap for these species or the potential effects on these populations of a coastwide catch cap. Nevertheless, the Council determined that capping the allowed level of river herring and shad in the herring fishery should provide a further incentive for the industry to avoid river herring and shad and will help minimize encounters with these species.

National Standard 9 Guidelines advise taking into account the net benefits to the nation of any proposed conservation and management measure, including: Negative impacts on affected stocks; incomes to fishery participants in directed fisheries; incomes accruing to those targeting the bycatch species; environmental consequences; non-market values of bycatch species (e.g., recreational values); and impacts on other marine organisms. River herring and shad are caught incidentally in the herring fishery. River herring and shad are forage species that play an important role in the ecosystem, providing a benefit to recreational fishermen, and are of great interest to numerous stakeholders. While they do occur in Federal waters and are encountered in the herring fishery, river herring and shad are not target species in the fishery, and their rate of bycatch is very low overall. Even the rate of incidental catch of river herring and shad is relatively low. Available information and analysis have not shown a strong connection between the effects of bycatch—either in the herring fishery or in other fisheries subject to Federal management—and the stocks of these species.

Because discarding of river herring, shad, and other species does not generally occur after the fish is brought on board a vessel, the FMP and related measures in the Northeast Multispecies FMP use measures aimed at directly avoiding incidental catch of these species, thereby avoiding any possibility of bycatch or bycatch mortality. The Herring FMP also seeks to gather further information that may help design future avoidance measures while taking into account the net benefits to the nation of the herring fishery and its effect on other species, consistent with the National Standard Guidelines. A catch cap falls under the concept of reducing bycatch by providing an incentive to avoid the incidental catch of river herring and shad by triggering a low herring possession limit once the cap is reached. Amendment 5 included the measure to allow implementing a river herring catch cap through a framework or the specifications process as well as improvements in monitoring and avoidance measures. Monitoring and avoidance are critical steps to a better understanding of the nature and extent of incidental catch and bycatch in the herring fishery in order to sufficiently analyze and, if necessary, address bycatch issues. Because the seasonal and inter-annual distribution of river herring and shad is highly variable in time and space, the most effective measures to address river herring and shad bycatch and bycatch mortality are those that increase catch monitoring and incidental catch and bycatch accounting, promote cooperative efforts with the industry, and reduce economic impacts to minimize incidental catch, bycatch, and bycatch mortality to the extent practicable. We have concluded that these catch caps, in addition to other measures in the FMP, reduce bycatch and bycatch mortality to the extent practicable.

Comment 9: The Herring Alliance commented that the best available science demonstrates that there are a number of approaches used to set catch limits in data poor species that are more appropriate than the methodology implemented in Framework 3, which is scaled up to achieve maximum herring catch. The Herring Alliance, Wild Oceans, and CHOIR commented that the cap should be biologically based, should be focused on the conservation of river herring and shad, and should reduce river herring and shad mortality. The Herring Alliance, Wild Oceans, and CHOIR recommended that the New England Council should request that the SSC review cap limits and the methodology used to set them.

Response: Data do not appear robust enough to determine a biologically-based cap at this time. Based on the best scientific information available, the Council determined, and NMFS agrees, that caps based on past performance of the herring fishery, scaled to the herring annual catch limit of 107,800 mt for 2013-2015, is an acceptable limit on the amount of catch in the herring fishery. As the Council considers additional information on the biology of river herring and shad, it can use that information to try to establish catch caps directly tied to river herring and shad biology.

Comment 10: The Herring Alliance, CHOIR, and Wild Oceans commented on various aspects of the FMP that are related to this action but are not within the scope of measures considered and approved as part of Framework 3. These include improvements to fishery observer provisions for the FMP, consideration of adding river herring and shad as stocks in the herring fishery, development of more robust catch monitoring provisions (not specific to river herring and shad), and development of consequences for vessels that dump catch at sea before it can be sampled by at-sea observers on herring vessels. Specifically, the commenters stated or implied that the measures that NMFS disapproved as part of Amendment 5 are integral to the effective monitoring and management of river herring and shad catch in the herring fishery.

Response: NMFS is working with the Council to develop measures related to these issues. Some of these issues are currently being considered in Framework 4 to the FMP. Other issues, such as considering whether to add river herring and shad as stocks in the fishery may be addressed in future actions. Although NMFS understands the connection between these measures and the river herring and shad catch caps, these additional issues and measures are not within the scope of this action.

Changes From Proposed Rule to Final Rule

In § 648.2, NMFS is clarifying the definitions for herring and blueback herring by including a definition for blueback herring and removing blueback herring from the definition of “Herring.” The proposed rule only included a definition for “river herring and shad” to include the four species of river herring and shad and their genus and species names.

In § 648.7(b)(3)(i), NMFS clarifies that the requirement for herring vessels to report total catch retained by statistical area only applies to herring vessels that are fishing with midwater trawl or bottom trawl gear. The proposed rule would have required all herring vessels issued a limited access herring permit or an Areas 2/3 open access herring permit to report total catch retained regardless of the gear type they use. NMFS will use the “total catch retained” portion of the report to monitor catch caps for river herring and shad, and haddock, which only apply to vessels using midwater trawl or bottom trawl gear. NMFS does not need the total catch retained information for other gear types and is therefore not requiring them to report it.

NMFS has also made some changes to the regulatory text in paragraphs as clarifications to the proposed rule. These changes do not modify the intent or the substance of the regulations. Clarifications are in sections and paragraphs: 648.7(b)(3)(i); 648.14(r)(1)(ii)(B); 648.200(f)(6) and (f)(7)(ii); 648.201(a)(2), (a)(4)(i) and (ii); and 648.204(a)(1) through (5).

Classification

The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws.

The Assistant Administrator also finds that the need to immediately limit the amount of river herring and shad catch in the herring fishery constitutes good cause under authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date. There is good cause to implement the river herring and shad catch caps upon publication of this final rule The Council intended for the caps to be in place for as much of the 2014 herring fishing year as possible. Delaying the effectiveness of the river herring and shad catch caps may cause the caps to be implemented after the herring fishery has already harvested the herring catch allocated to it for 2014, thereby undermining the benefits of implementing the catch caps that were specified by the Council to take effect in 2014. The herring fishery opened for the 2014 fishing year on January 1, 2014, and the herring fishery has already harvested more than 80 percent of the allocated catch for the year. The cap must be in place upon publication of this final rule in order to constrain river herring and shad catch on as much of the herring fishery in 2014 as possible. If the herring fishery continues to operate without a cap through the rest of 2014 in Area 2 primarily, the benefit of the caps in 2014 will be forgone altogether if the herring fishery catches its remaining allocation before the final rule makes the river herring and shad caps effective. The Council submitted its final version of Framework 3 for NMFS review in March 2014, meaning that final NMFS action would occur well after the herring fishery was underway. As a result, NMFS intended from the outset to implement these measures upon publication due to the need and the public interest. Even though it is near the end of 2014 and only one area remains open (Area 2) to the herring fishery, NMFS believes that it is still important to implement the measures upon publication. These species have a high level of importance in the ecosytems, the public is extremely interested in measures to protect them, and this final rule implements measures that provide possible protection of these species from excessive catch in the herring fishery.

The Office of Management and Budget has determined that this rule is not significant according to Executive Order 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.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of Framework 3 in this final rule. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, a summary of the analyses completed in the Framework 3 EA, and this portion of the preamble. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in Framework 3 and in the preamble to the proposed and this final rule, and is not repeated here. All of the documents that constitute the FRFA are available from NMFS and a copy of the IRFA, the RIR, and the EA are available upon request (see ADDRESSES).

Summary of the Significant Issues Raised by the Public Comments in Response to the IRFA, a Summary of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments

NMFS received no comments in response to the IRFA.

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

On June 20, 2013, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398). The rule increased the size standard for finfish fishing from $4.0 to $19.0 million, shellfish fishing from $4.0 to $5.0 million, and other marine fishing from $4.0 to $7.0 million. The IRFA that the Council and NMFS developed for this action used the SBA size standards that became effective in July 2013. On June 12, 2014, SBA issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33467). The rule increased the size standard from $19.0 to $20.5 million for finfish fishing, from $5 to $5.5 million for shellfish fishing, and from $7.0 million to $7.5 million for other marine fishing, for-hire businesses, and marinas.

This action will affect all limited access herring vessels (i.e., category A, B, or C permit). In 2012, there were 94 fishing vessels that had a limited access herring permit. Vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of this analysis, affiliated ownership entities are determined by those entities with common ownership personnel as listed on permit application documentation. Only permits with identical ownership personnel are categorized as an ownership entity. For example, if five permits have the same seven personnel listed as co-owners on their application paperwork, those seven personnel form one ownership entity, covering those five permits. If one or several of the seven owners also own additional vessels, with different co-owners (i.e., either sub-sets of the original seven personnel or new co-owners), those ownership arrangements are deemed to be separate ownership entities for the purpose of this analysis.

Pursuant to the Regulatory Flexibility Act, and prior to SBA's June 12, 2014, interim final rule, NMFS prepared an IRFA for this action using SBA's former size standards. Based on ownership criterion explained above and NMFS dealer-reported landings data for 3 years ending in 2012, and the July 2013 size standards for finfish and shellfish firms, the Council and NMFS determined that there are 72 directly regulated small entities and 6 large entities, as defined in section 601 of the RFA. Not all of these permitted firms were active: Only 25 directly regulated small entities and 4 large entities were actively fishing for herring during the last 3 years. NMFS has reviewed the analyses prepared for this action in light of the new size standards effective July 14, 2014. The new standards could result in no more than six additional entities being considered small.

Taking this change into consideration, NMFS has identified no additional significant alternatives that accomplish statutory objectives and minimize any significant economic impacts of this action on small entities. Further, the new size standards do not affect the decision to prepare a FRFA for this action. The IRFA described that the alternatives to the proposed action would have no economic benefits, and in some cases may be more costly for all entities regardless of whether they are classified as small or large under SBA standards. Therefore, the addition of no more than six small entities would not change the assessment of impacts described in the IRFA and supported in this FRFA.

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, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities Was Rejected

During the development of Framework 3, NMFS and the Council considered ways to reduce the regulatory burden on, and provide flexibility for, the regulated entities in this action. Proposed actions and alternatives are described in detail in Framework 3, which includes an EA, RIR, and IRFA (available at ADDRESSES). The measures implemented by this final rule minimize the economic impacts on small entities to the extent practicable.

Overall, this rule minimizes economic impacts (i.e., directed fishery closures) by dividing catch caps across various areas. If a catch cap in a given area for a specific gear is reached, the measures implemented by this action will close only that area to that gear type. Thus, the catch cap measures avoid closing the directed herring fishery in all areas due to a single catch cap overage. This seeks to minimize negative impacts on fishing businesses reliant on gear types subject to directed herring fishery closures in terms of forgone profits. The extent of these impacts depends on when an area is closed to directed fishing relative to nearby areas available for directed herring fishing. Further, the catch caps are not likely to preclude herring fishing in all areas and will provide midwater trawl vessels an opportunity to fish in Herring Management Area 3 (Georges Bank) without a catch cap, thereby potentially mitigating some of the negative impacts.

Small Entity Compliance Guide

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 will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will 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 letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office, and the guide (i.e., permit holder letter) will be sent to all holders of permits for the herring fishery. The guide and this final rule will be available upon request.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. This action does not duplicate, overlap, or conflict with any other Federal rules.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

Dated: November 21, 2014.

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, the definition for “herring” is removed and the definitions for “Blueback herring,” “River herring,” and “Shad,” are added in alphabetical order to read as follows:

§ 648.2

Definitions.

* * * * *

Blueback herring means Alosa aestivalis.

* * * * *

River herring means alewife (Alosa pseudoharengus) and blueback herring (Alosa aestivalis).

* * * * *

Shad means American shad (Alosa sapidissima) and hickory shad (Alosa mediocris).

* * * * *

3. In § 648.7, paragraph (b)(3)(i) introductory text is revised to read as follows:

§ 648.7

Recordkeeping and reporting requirements.

* * * * *

(b) * * *

(3) * * *

(i) Atlantic herring owners or operators issued a limited access permit or Areas 2/3 open access permit. The owner or operator of a vessel issued a limited access permit or Areas 2/3 open access permit to fish for herring must report catch (retained and discarded) of herring daily via VMS, unless exempted by the Regional Administrator. The report shall include at least the following information, and any other information required by the Regional Administrator: Fishing Vessel Trip Report serial number; month and day herring was caught; pounds retained for each herring management area; and pounds discarded for each herring management area. Additionally, the owner or operator of a vessel issued a limited access permit or Areas 2/3 open access permit to fish for herring using midwater trawl or bottom trawl gear must report daily via VMS the estimated total amount of all species retained (in pounds, landed weight) by statistical area for use in tracking catch against catch caps (haddock, river herring and shad) in the herring fishery. Daily Atlantic herring VMS catch reports must be submitted in 24-hr intervals for each day and must be submitted by 0900 hr (9:00 a.m.) of the following day. Reports are required even if herring caught that day has not yet been landed. This report does not exempt the owner or operator from other applicable reporting requirements of this section.

* * * * *

§ 648.10

[Amended]

4. In § 648.10, paragraph (l) is removed and reserved.

5. In § 648.14, paragraph (r)(1)(ii)(B) is revised to read as follows:

§ 648.14

Prohibitions.

* * * * *

(r) * * *

(1) * * *

(ii) * * *

(B) Fish for, possess, transfer, receive, or sell; or attempt to fish for, possess, transfer, receive, or sell; more than 2,000 lb (907.2 kg) of herring per trip; or land, or attempt to land more than 2,000 lb (907.2 kg) of herring per day in or from a management area closed pursuant to § 648.201(a), or from a river herring and shad catch cap closure area that has been closed to specified gear pursuant to § 648.201(a)(4)(ii), if the vessel has been issued and holds a valid herring permit.

* * * * *

6. In § 648.200, paragraph (a) introductory text is revised, paragraph (b)(6) is added, and paragraphs (f) and (g) are revised to read as follows:

§ 648.200

Specifications.

(a) The Atlantic Herring Plan Development Team (PDT) shall meet at least every 3 years, but no later than July of the year before new specifications are implemented, with the Atlantic States Marine Fisheries Commission's (Commission) Atlantic Herring Plan Review Team (PRT) to develop and recommend the following specifications for a period of 3 years for consideration by the New England Fishery Management Council's Atlantic Herring Oversight Committee: Overfishing Limit (OFL), Acceptable Biological Catch (ABC), Annual Catch Limit (ACL), Optimum yield (OY), domestic annual harvest (DAH), domestic annual processing (DAP), U.S. at-sea processing (USAP), border transfer (BT), the sub-ACL for each management area, including seasonal periods as specified at § 648.201(d) and modifications to sub-ACLs as specified at § 648.201(f), the amount to be set aside for the RSA (from 0 to 3 percent of the sub-ACL from any management area), and river herring and shad catch caps, as specified in § 648.201(a)(4). Recommended specifications shall be presented to the New England Fishery Management Council.

* * * * *

(b) * * *

(6) River herring and shad catch caps may be allocated to the herring fishery by the following: Species, as defined in § 648.2, either separately or combined; area as specified in paragraph (f)(7) of this section; vessel permit; gear type; or any combination of these.

* * * * *

(f) Management areas. The specifications process establishes sub-ACLs and other management measures for the three management areas, which may have different management measures. Management Area 1 is subdivided into inshore and offshore sub-areas. The management areas are defined as follows:

(1) Management Area 1 (Gulf of Maine): All U.S. waters of the Gulf of Maine (GOM) north of a line extending from a point at 41°39′ N. lat, 70°00′ W. long. to 42°53′ 14.32125″ N. lat., 67° 44′ 33.01613″ W. long., thence northerly along the U.S.-Canada Maritime Boundary to the U.S.-Canadian border, to include state and Federal waters adjacent to the states of Maine, New Hampshire, and Massachusetts. Management Area 1 is divided into Area 1A (inshore) and Area 1B (offshore). The line dividing these areas is described by the following coordinates:

Point	Latitude	Longitude	Note
1	41°58′ N	70° 00′ W
2	42°38′ N	70° 00′ W
3	42°53′ N	69° 40′ W
4	43°12′ N	69° 00′ W
5	43°40′ N	68° 00′ W
6	43°58′16.0314″ N	67° 21′26.157″ W	(1)
1 Point 6 falls on the U.S.-Canada Maritime Boundary.

(2) Management Area 2 (South Coastal Area): All state and Federal waters inclusive of sounds and bays, bounded on the east by 70°00′ W. long. and the outer limit of the U.S. Exclusive Economic Zone; bounded on the north and west by the southern coastline of Cape Cod, Massachusetts, and the coastlines of Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, and North Carolina; and bounded on the south by a line following the lateral seaward boundary between North Carolina and South Carolina from the coast to the Submerged Lands Act line, approximately 33°48′46.37″ N. lat, 78°29′46.46″ W. long., and then heading due east along 38°48′46.37″ N. lat. to the outer limit of the US Exclusive Economic Zone.

(3) Management Area 3 (Georges Bank): All U.S. waters east of 70°00′ W. long. and southeast of the line that runs from a point at 41°39′ N. lat. and 70°00′ W. long., northeasterly to U.S.-Canada Maritime Boundary at 42°53′14.32125″ N. lat., 67°44′33.01613″ W. long.

(4) River Herring Monitoring/Avoidance Areas—(i) January-February River Herring Monitoring/Avoidance Areas. The January-February River Herring Monitoring/Avoidance Areas include four sub-areas. Each sub-area includes the waters bounded by the coordinates below, connected in the order listed by straight lines unless otherwise noted.

(A) January-February River Herring Monitoring/Avoidance Sub-Area 1.

Point	Latitude	Longitude
JF1A	43°00′ N	71°00′ W
JF1B	43°00′ N	70°30′ W
JF1C	42°30′ N	70°30′ W
JF1D	42°30′ N	71°00′ W
JF1A	43°00′ N	71°00′ W

(B) January-February River Herring Monitoring/Avoidance Sub-Area 2.

Point	Latitude	Longitude
JF2A	42°00′ N	70°00′ W
JF2B	42°00′ N	69°30′ W
JF2C	41°30′ N	69°30′ W
JF2D	41°30′ N	70°00′ W
JF2A	42°00′ N	70°00′ W

(C) January-February River Herring Monitoring/Avoidance Sub-Area 3.

Point	Latitude	Longitude	Note
JF3A	41°30′ N	72°00′ W
JF3B	41°30′ N	71°00′ W
JF3C	40°30′ N	71°00′ W
JF3D	40°30′ N	72°30′ W
JF3E	(1)	72°30′ W	(3)
JF3F	(2)	72°00′ W	(3)
JF3A	41°30′ N	72°00′ W
1 The southernmost shoreline of Long Island, New York.
2 The north-facing shoreline of Long Island, New York.
3 Points JF3E and JF3F are connected following the coastline of the south fork of eastern Long Island, New York.

(D) January-February River Herring Monitoring/Avoidance Sub-Area 4.

Point	Latitude	Longitude	Note
JF4A	40°30′ N	74°00′ W
JF4B	40°30′ N	72°30′ W
JF4C	40°00′ N	72°30′ W
JF4D	40°00′ N	72°00′ W
JF4E	39°30′ N	72°00′ W
JF4F	39°30′ N	73°30′ W
JF4G	40°00′ N	73°30′ W
JF4H	40°00′ N	74°00′ W	(1)
JF4A	40°30′ N	74°00′ W	(1)
1 Points JF4H and JF4A are connected following 74 °W longitude and the easternmost shoreline of New Jersey, whichever is furthest east.

(ii) March-April River Herring Monitoring/Avoidance Areas. The March-April River Herring Monitoring/Avoidance Areas include five sub-areas. Each sub-area includes the waters bounded by the coordinates below, connected in the order listed by straight lines unless otherwise noted.

(A) March-April River Herring Monitoring/Avoidance Sub-Area 1.

Point	Latitude	Longitude
MA1A	43°00′ N	71°00′ W
MA1B	43°00′ N	70°30′ W
MA1C	42°30′ N	70°30′ W
MA1D	42°30′ N	71°00′ W
MA1A	43°00′ N	71°00′ W

(B) March-April River Herring Monitoring/Avoidance Sub-Area 2.

Point	Latitude	Longitude
MA2A	42°00′ N	70°00′ W
MA2B	42°00′ N	69°30′ W
MA2C	41°30′ N	69°30′ W
MA2D	41°30′ N	70°00′ W
MA2A	42°00′ N	70°00′ W

(C) March-April River Herring Monitoring/Avoidance Sub-Area 3.

Point	Latitude	Longitude	Note
MA3A	41°00′ N	(1)
MA3B	41°00′ N	71°00′ W
MA3C	40°30′ N	71°00′ W
MA3D	40°30′ N	71°30′ W
MA3E	40°00′ N	71°30′ W
MA3F	40°00′ N	72°30′ W
MA3G	(2)	72°30′ W	(3)
MA3A	41°00′ N	(1)	(3)
1 The easternmost shoreline of Long Island, New York.
2 The southernmost shoreline of Long Island, New York.
3 Points MA3G and MA3A are connected following the southern shoreline of Long Island, New York.

(D) March-April River Herring Monitoring/Avoidance Sub-Area 4.

Point	Latitude	Longitude
MA4A	40°00′ N	73°30′ W
MA4B	40°00′ N	72°30′ W
MA4C	39°00′ N	72°30′ W
MA4D	39°00′ N	73°30′ W
MA4A	40°00′ N	73°30′ W

(E) March-April River Herring Monitoring/Avoidance Sub-Area 5.

Point	Latitude	Longitude	Note
MA5A	40°30′ N	74°00′ W
MA5B	40°30′ N	73°30′ W
MA5C	40°00′ N	73°30′ W
MA5D	40°00′ N	74°00′ W	(1)
MA5A	40°30′ N	74°00′ W	(1)
1 Points MA5D and MA5A are connected following 74 °W longitude and the easternmost shoreline of New Jersey, whichever is furthest east.

(iii) May-June River Herring Monitoring/Avoidance Areas. The May-June River Herring Monitoring/Avoidance Areas include two sub-areas. Each sub-area includes the waters bounded by the coordinates below, connected in the order listed by straight lines unless otherwise noted.

(A) May-June River Herring Monitoring/Avoidance Sub-Area 1.

Point	Latitude	Longitude
MJ1A	44°00′ N	69°30′ W
MJ1B	44°00′ N	69°00′ W
MJ1C	43°30′ N	69°00′ W
MJ1D	43°30′ N	69°30′ W
MJ1A	44°00′ N	69°30′ W

(B) May-June River Herring Monitoring/Avoidance Sub-Area 2.

Point	Latitude	Longitude
MJ2A	42°00′ N	70°00′ W
MJ2B	42°00′ N	69°30′ W
MJ2C	41°30′ N	69°30′ W
MJ2D	41°30′ N	70°00′ W
MJ2A	42°00′ N	70°00′ W

(iv) July-August River Herring Monitoring/Avoidance Areas. The July-August River Herring Monitoring/Avoidance Areas include two sub-areas. Each sub-area includes the waters bounded by the coordinates below, connected in the order listed by straight lines unless otherwise noted.

(A) July-August River Herring Monitoring/Avoidance Sub-Area 1.

Point	Latitude	Longitude	Note
JA1A	44°00′ N	70°00′ W
JA1B	44°00′ N	69°30′ W
JA1C	43°00′ N	69°30′ W
JA1D	43°00′ N	70°00′ W	(1)
JA1A	44°00′ N	70°00′ W	(1)
1 The boundary from Points JA1D to JA1A excludes the portions Maquoit Bay and Middle Bay (Brunswick, ME) east of 70°00′ W.

(B) July-August River Herring Monitoring/Avoidance Sub-Area 2.

Point	Latitude	Longitude
JA2A	44°00′ N	69°00′ W
JA2B	44°00′ N	68°30′ W
JA2C	43°30′ N	68°30′ W
JA2D	43°30′ N	69°00′ W
JA2A	44°00′ N	69°00′ W

(v) September-October River Herring Monitoring/Avoidance Areas. The September-October River Herring Monitoring/Avoidance Areas include two sub-areas. Each sub-area includes the waters bounded by the coordinates below, connected in the order listed by straight lines unless otherwise noted.

(A) September-October River Herring Monitoring/Avoidance Sub-Area 1.

Point	Latitude	Longitude	Note
SO1A	44°30′ N	68°00′ W
SO1B	44°30′ N	(1)	(2)
SO1C	44°00′ N	(3)	(2)
SO1D	44°00′ N	68°00′ W
SO1A	44°30′ N	68°00′ W
1 The intersection of 44°30′ N and the U.S.-Canada Maritime Boundary.
2 Point SO1B and Point SO1C are connected along the U.S.-Canada Maritime Boundary.
3 The intersection of 44°00′ N and the U.S.-Canada Maritime Boundary.

(B) September-October River Herring Monitoring/Avoidance Sub-Area 2.

Point	Latitude	Longitude
SO2A	43°00′ N	71°00′ W
SO2B	43°00′ N	70°30′ W
SO2C	42°30′ N	70°30′ W
SO2D	42°30′ N	71°00′ W
SO2A	43°00′ N	71°00′ W

(vi) November-December River Herring Monitoring/Avoidance Areas. The November-December River Herring Monitoring/Avoidance Areas include two sub-areas. Each sub-area includes the waters bounded by the coordinates below, connected in the order listed by straight lines unless otherwise noted.

(A) November-December River Herring Monitoring/Avoidance Sub-Area 1.

Point	Latitude	Longitude	Note
ND1A	43°00′ N	71°00′ W
ND1B	43°00′ N	70°00′ W
ND1C	42°00′ N	70°00′ W
ND1D	42°00′ N	69°30′ W
ND1E	41°30′ N	69°30′ W
ND1F	41°30′ N	70°00′ W
ND1G	(1)	70°00′ W	(3)
ND1H	42°00′ N	(2)	(3)
ND1I	42°00′ N	70°30′ W
ND1J	42°30′ N	70°30′ W
ND1K	42°30′ N	71°00′ W
ND1A	43°00′ N	71°00′ W
1 The south-facing shoreline of Cape Cod, Massachusetts.
2 The west-facing shoreline of Cape Cod, Massachusetts.
3 Point ND1G and ND1H are connected following the coastline of Cape Cod, Massachusetts.

(B) November-December River Herring Monitoring/Avoidance Sub-Area 2.

Point	Latitude	Longitude
ND2A	41°30′ N	72°00′ W
ND2B	41°30′ N	70°00′ W
ND2C	40°30′ N	70°00′ W
ND2D	40°30′ N	70°30′ W
ND2E	41°00′ N	70°30′ W
ND2F	41°00′ N	72°00′ W
ND2A	41°30′ N	72°00′ W

(5) Gulf of Maine Modified Haddock Stock Area. The Gulf of Maine Modified Haddock Stock Area is composed of the portions of Greater Atlantic Region Statistical Areas #464, #465, #511, #512, #513, #514, and #515 in U.S. waters, and is defined by the following points connected in the order listed by straight lines unless otherwise noted:

Point	Latitude	Longitude	Note
A	(1)	67°00′ W
B	(2)	67°00′ W	(3)
C	42°20′ N	(4)	(3)
D	42°20′ N	70°00′ W
E	(5)	70°00′ W	(6)
A	(1)	67°00′ W	(6)
1 The intersection of 67°00′ W longitude and the southern coast of Maine.
2 The intersection of 67°00′ W longitude and the U.S.-Canada Maritime Boundary.
3 From POINT B to POINT C along the U.S.-Canada Maritime Boundary.
4 The intersection of 42°20′ N latitude and the U.S.-Canada Maritime Boundary.
5 The intersection of 70°00′ W longitude and the northeast-facing shoreline of Cape Cod, Massachusetts.
6 From POINT E back to POINT A along the coastline of the United States.

(6) Georges Bank Modified Haddock Stock Area. The Georges Bank Modified Haddock Stock Area is composed of Greater Atlantic Region Statistical Areas #521, #522, #525, #526, #561, and #562, and is defined by the following points connected in the order listed by straight lines unless otherwise noted:

Point	Latitude	Longitude	Note
A	42°20′ N	70°00′ W
B	42°20′ N	(1)	(2)
C	40°30′ N	(3)	(2)
D	40°30′ N	66°40′ W
E	39°50′ N	66°40′ W
F	39°50′ N	70°00′ W	(4)
A	42°20′ N	70°00′ W	(4)
1 The intersection of 42°20′ N latitude and the U.S.-Canada Maritime Boundary.
2 From POINT B to POINT C following the U.S.-Canada Maritime Boundary.
3 The intersection of 40°30′ N latitude and the U.S.-Canada Maritime Boundary.
4 From POINT F back to POINT A along 70°00′ W longitude and the coastlines of Nantucket Island and mainland Cape Cod, Massachusetts, whichever is further east.

(7) River herring and shad catch cap areas—(i) Gulf of Maine Catch Cap Area. The Gulf of Maine Catch Cap Area is composed of the portions of Greater Atlantic Region Statistical Areas #464, #465, #467, #511, #512, #513, #514, and #515 in U.S. waters. The Gulf of Maine Catch Cap Area is bounded on the west by the coastline of the United States, bounded on the east by the U.S.-Canada Maritime Boundary, and bounded on the south by the following coordinates connected by straight lines in the order listed:

Point	Latitude	Longitude
A	(1)	70°00′ W
B	42°20′ N	70°00′ W
C	42°20′ N	(2)
1 The intersection of 70°00′ W longitude and the northwest facing shoreline of Cape Cod, Massachusetts
2 The intersection of 42°00′ N latitude and the U.S.-Canada Maritime Boundary.

(ii) Cape Cod Catch Cap Area. The Cape Cod Catch Cap Area is composed of Greater Atlantic Region Statistical Area #521, and is defined by the following points connected in the order listed by straight lines unless otherwise noted:

Point	Latitude	Longitude	Note
A	(1)	70°00′ W
B	42°20′ N	70°00′ W
C	42°20′ N	68°50′ W
D	41°00′ N	68°50′ W
E	41°00′ N	69°30′ W
F	41°10′ N	69°30′ W
G	41°10′ N	69°50′ W
H	41°20′ N	69°50′ W
I	41°20′ N	(2)	(3)
J	(4)	70°00′ W	(3)
K	(5)	70°00′ W	(6)
A	(1)	70°00′ W	(6)
1 The intersection of 70°00′ W longitude and the northeast-facing shoreline of Cape Cod, Massachusetts
2 The intersection of 41°20′ N latitude and the northeast-facing shoreline of Nantucket Island.
3 From Point I to Point J along the northeast-facing shoreline of Nantucket Island.
4 The intersection of 70°00′ W longitude and the northeast-facing shoreline of Nantucket Island.
5 The intersection of 70°00′ W longitude and the south-facing shoreline of mainland Cape Cod, Massachusetts.
6 From Point K back to Point A along the east-facing shoreline of Cape Cod, Massachusetts.

(iii) Georges Bank Catch Cap Area. The Georges Bank Catch Cap Area is composed of the portions of Greater Atlantic Region Statistical Areas #522, #525, #526, #541, #542, #543, #561, #562, and #640 in U.S. waters, and is defined by the following points, connected in the order listed by straight lines unless otherwise noted:

Point	Latitude	Longitude	Note
A	(1)	70°00′ W
B	(2)	70°00′ W	(3)
C	41°20′ N	(4)	(3)
D	41°20′ N	69°50′ W
E	41°10′ N	69°50′ W
F	41°10′ N	69°30′ W
G	41°00′ N	69°30′ W
H	41°00′ N	68°50′ W
I	42°20′ N	68°50′ W
J	42°20′ N	(5)	(6)
A	(1)	70°00′ W	(6)
1 The intersection of 70°00′ W longitude and the outer limit of the U.S. Exclusive Economic Zone.
2 The intersection of 70°00′ W longitude and the south-facing shoreline of Nantucket Island.
3 From Point B to Point C along the south- and east-facing shorelines of Nantucket Island.
4 The intersection of 41°20′ N latitude and the northeast-facing shoreline of Nantucket Island.
5 The intersection of 42°20′ N latitude and the U.S.-Canada Maritime Boundary.
6 From Point J back to Point A along the U.S.-Canada Maritime Boundary and the outer limit of the U.S. Exclusive Economic Zone.

(iv) Southern New England/Mid-Atlantic Catch Cap Area. The coordinates of this area are the same as Management Area 2 (South Coastal Area), as specified in paragraph (f)(2) of this section.

(8) River herring and shad catch cap closure areas—(i) Gulf of Maine Catch Cap Closure Area. The coordinates of this area are the same as the Gulf of Maine Catch Cap Area, as specified in paragraph (f)(7)(i) of this section.

(ii) Cape Cod Catch Cap Closure Area. The coordinates of this area are the same as the Cape Cod Catch Cap Area, as specified in paragraph (f)(7)(ii) of this section.

(iii) Georges Bank Catch Cap Closure Area. The coordinates of this area are the same as the Georges Bank Catch Cap Area, as specified in paragraph (f)(7)(iii) of this section.

(iv) Southern New England/Mid-Atlantic Catch Cap Closure Area. The Southern New England/Mid-Atlantic Catch Cap Closure Area is composed of the portions of Greater Atlantic Region Statistical Areas #537, #538, #539, #611, #612, #613, #614, #615, #616, #621, #622, #623, #625, #626, #627, #631, #632, #635, and #636 in US waters, and is defined by the following coordinates, connected by straight lines in the order listed unless otherwise noted:

Point	Latitude	Longitude	Note
A	35°00′ N	(1)
B	35°00′ N	74°00′ W
C	37°00′ N	74°00′ W
D	37°00′ N	73°00′ W
E	38°00′ N	73°00′ W
F	38°00′ N	72°00′ W
G	39°00′ N	72°00′ W
H	39°00′ N	71°40′ W
I	39°50′ N	71°40′ W
J	39°50′ N	70°00′ W
K	(2)	70°00′ W	(3)
A	35°00′ N	(1)	(3)
1 The intersection of 35°00′ N latitude and the mainland shoreline of North Carolina.
2 The intersection of 70°00′ W longitude and the south-facing shoreline of mainland Cape Cod, Massachusetts.
3 From Point K back to Point A along the mainland shoreline of the United States.

(g) All aspects of the following measures can be modified through the specifications process:

(1) AMs;

(2) Possession limits;

(3) River Herring Monitoring/Avoidance Areas; and

(4) River herring and shad catch caps.

7. In § 648.201, paragraphs (a)(2) is revised, paragraph (a)(4) is added, and paragraph (e) is revised to read as follows:

§ 648.201

AMs and harvest controls.

(a) * * *

(2) When the Regional Administrator has determined that the GOM and/or GB incidental catch cap for haddock in § 648.85(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 § 648.86(a)(3)(ii)(A)(2) and (3) of this part, may fish for, possess, or land 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 § 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 an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit fishing on a declared herring trip, regardless of 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 § 648.10(g)) Northeast multispecies trip.

* * * * *

(4) River herring and shad catch cap. (i) The catch from all trips that land more than 6,600 lb (3 mt) of herring shall apply to the river herring and shad catch cap in the herring fishery. Caps by gear and by area shall be established through the specifications process described in § 648.201.

(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 § 648.200(f)(7) for the remainder of the fishing year, NMFS shall prohibit vessels from fishing for, possessing, catching, transferring, or landing 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 § 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.

* * * * *

(e) Up to 500 mt of the Area 1A sub-ACL shall be allocated for the fixed gear fisheries in Area 1A (weirs and stop seines) that occur west of 67°16.8′ W. long (Cutler, Maine). This set-aside shall be available for harvest by fixed gear within the specified area until November 1 of each fishing year. Any portion of this allocation that has not been utilized by November 1 shall be restored to the sub-ACL allocation for Area 1A.

* * * * *

8. In § 648.204, paragraph (a) is revised to read as follows:

§ 648.204

Possession restrictions.

(a) A vessel must be issued and possess a valid limited access herring permit to fish for, possess, or land more than 6,600 lb (3 mt) of Atlantic herring from any herring management area in the EEZ, provided none of the harvest restrictions specified in § 648.201 has been implemented.

(1) A vessel issued an All Areas Limited Access Herring Permit may fish for, possess, or land Atlantic herring with no possession restriction from any of the herring management areas defined in § 648.200(f), provided none of the accountability measures or harvest restrictions specified in § 648.201 have been implemented.

(2) A vessel issued only an Areas 2 and 3 Limited Access Herring Permit may fish for, possess, or land Atlantic herring with no possession restriction only from Area 2 or Area 3, as defined in § 648.200(f), provided none of the accountability measures or harvest restrictions specified in § 648.201 have been implemented. Such a vessel may fish in Area 1 only if issued an open access herring permit or a Limited Access Incidental Catch Herring Permit, and only as authorized by the respective permit.

(3) A vessel issued a Limited Access Incidental Catch Herring Permit may fish for, possess, or land up to, but no more than, 55,000 lb (25 mt) of Atlantic herring in any calendar day, and is limited to one landing of herring per calendar day, from any management area defined in § 648.200(f), provided none of the accountability measures or harvest restrictions specified in § 648.201 have been implemented.

(4) A vessel issued an All Areas Open Access Permit may fish for, possess, or land up to, but no more than, 6,600 lb (3 mt) of Atlantic herring from any herring management area per trip, and is limited to one landing of herring per calendar day, provided none of the accountability measures or harvest restrictions specified in § 648.201 have been implemented.

(5) A vessel issued an Areas 2/3 Open Access Permit may fish for, possess, or land up to, but no more than, 20,000 lb (9 mt) of Atlantic herring from only Area 2 or Area 3, as defined in § 648.200(f), per trip, and is limited to one landing of herring per calendar day, provided none of the accountability measures or harvest restrictions specified in § 648.201 have been implemented.

(6) A vessel issued a herring permit may possess herring roe provided that the carcasses of the herring from which it came are not discarded at sea.

* * * * *

9. In § 648.206, paragraphs (b)(36) and (37) are revised and (b)(38) is added to read as follows:

§ 648.206

Framework provisions.

* * * * *

(b) * * *

(36) River herring and shad catch caps, including species-specific caps, and vessels, permits, trips, gears, and areas to which caps apply;

(37) River herring and shad Catch Cap Areas and Catch Cap Closure Areas; and

(38) Any other measure currently included in the FMP.

* * * * *