[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Rules and Regulations]
[Pages 10029-10048]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03906]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100120035-4085-03]
RIN 0648-AY26


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Amendment 14

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

ACTION: Final rule.

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SUMMARY: This rule implements approved measures in Amendment 14 to the 
Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan 
(FMP). Amendment 14 was developed by the Mid-Atlantic Fishery

[[Page 10030]]

Management Council (Council) to improve the catch monitoring program 
for the MSB fisheries, with a focus on better evaluation of the 
incidental catch of river herring and shad, and to address river 
herring and shad bycatch issues in the mackerel fishery. The approved 
measures include: Revising vessel reporting requirements (vessel trip 
reporting frequency, pre-trip and pre-landing vessel notification 
requirements, and requirements for vessel monitoring systems); 
expanding vessel requirements to maximize observer's ability to sample 
catch at-sea; minimizing the discarding of unsampled catch; and a 
measure to allow the Council to set a cap on river herring and shad 
catch in the Atlantic mackerel fishery. NMFS disapproved three measures 
in Amendment 14: A dealer reporting requirement; a cap that, if 
achieved, would require vessels discarding catch before it had been 
sampled by observers (known as slippage) to return to port; and a 
requirement for increased observer coverage on limited access midwater 
trawl and small-mesh bottom trawl mackerel trips, coupled with an 
industry contribution of $325 per day toward observer costs. NMFS 
disapproved these measures because it determined that they are 
inconsistent with the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) and other applicable law. Therefore, these three 
measures are not implemented in this action.

DATES: Effective March 26, 2014, except for the amendments to Sec.  
648.7(b)(3)(ii)-(iii) and Sec.  648.10, which are effective April 25, 
2014.

ADDRESSES: Copies of supporting documents used by the Council, 
including the Environmental Impact Statement (EIS) and Regulatory 
Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are 
available from: Dr. Christopher M. Moore, Executive Director, Mid-
Atlantic Fishery Management Council, Room 2115, Federal Building, 300 
South New Street, Dover, DE 19904-6790. The EIS/RIR/IRFA is also 
accessible via the Internet at http://www.nero.nmfs.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to NMFS, Greater Atlantic Regional 
Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930, and by 
email to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.
    Information on the Federal Vessel Monitoring System (VMS) 
reimbursement program is available from the Pacific States Marine 
Fisheries Commission, 205 SE Spokane Street, Suite 100, Portland, OR 
97202 (Web site: http://www.psmfc.org/, Telephone Number: 503-595-3100, 
Fax Number: 503-595-3232) and from the NMFS VMS Support Center at 888-
219-9228.

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 
phone 978-281-9195, fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    On June 9, 2010 (75 FR 32745), the Council published a notice of 
intent (NOI) to prepare an EIS for Amendment 14 to the MSB FMP to 
consider measures to: Implement catch share systems for the squid 
fisheries, increase fishery monitoring to determine the significance of 
river herring and shad incidental catch in the MSB fisheries, and 
measures to minimize bycatch and/or incidental catch of river herring 
and shad. The Council subsequently conducted scoping meetings during 
June 2010 to gather public comments on these issues. Based on the 
comments submitted during scoping, the Council removed consideration of 
catch shares for squids from Amendment 14 at its August 2010 meeting.
    Following further development of Amendment 14, the Council 
conducted MSA and National Environmental Policy Act public hearings in 
April and May 2012, and, following the public comment period on the 
draft EIS that ended on June 4, 2012, the Council adopted Amendment 14 
on June 14, 2012. The Council submitted Amendment 14 to NMFS for review 
on February 26, 2012. Following a series of revisions, the Council 
submitted a revised version of Amendment 14 to NMFS on June 3, 2013. A 
Notice of Availability (NOA) for Amendment 14, as submitted by the 
Council for review by the Secretary of Commerce (Secretary), was 
published on August 12, 2013 (78 FR 48852), with a comment period 
ending September 16, 2013. A proposed rule for Amendment 14 was 
published on August 29, 2013 (78 FR 53404), with a comment period 
ending October 11, 2013. On November 7, 2013, NMFS partially approved 
Amendment 14 on behalf of the Secretary. NMFS sent a letter to the 
Council on November 7, 2013, informing it of the partial approval of 
Amendment 14.
    The Council spent several years developing this amendment, and it 
contains many measures that will improve MSB management and that can be 
administered by NMFS. NMFS supports improvements to fishery-dependent 
data collections, either through increasing reporting requirements or 
expanding the at-sea monitoring of the MSB fisheries. NMFS also shares 
the Council's concern for reducing river herring and shad bycatch and 
unintended catch, and unnecessary discarding. However, three measures 
in Amendment 14 lacked adequate rationale or development by the 
Council, and NMFS had utility and legal concerns with the 
implementation of these measures. These measures were: A requirement 
for mackerel and longfin squid dealers to document how they estimated 
species composition of the weights of the fish they report; a cap that, 
if reached, would require vessels discarding catch before it had been 
sampled by observers to return to port; and a recommendation for 100-
percent observer coverage on all limited access midwater trawl and Tier 
1 small-mesh bottom trawl mackerel trips, 50-percent coverage on Tier 2 
small-mesh bottom trawl trips, and 25-percent coverage on Tier 3 small-
mesh bottom trawl trips, coupled with an industry contribution of $325 
per day toward observer costs. NMFS expressed potential concerns with 
these measures throughout the development of this amendment, but these 
measures have strong support from some stakeholders. The proposed rule 
for Amendment 14 described NMFS's concerns about these measures' 
consistency with the MSA and other applicable law. In addition, the 
proposed rule described the recent disapproval of similar measures in 
the New England Fishery Management Council's Amendment 5 to the 
Atlantic Herring FMP. After review of public comments, NMFS determined 
these three measures had to be disapproved because they are 
inconsistent with the MSA and other applicable law. In the November 7, 
2013, partial approval letter sent to the Council, NMFS detailed 
recommendations on how these measures could be revised in a future 
action to address NMFS's concerns. If the Council chooses to revise 
these measures and submit them in a future action, NMFS will continue 
to work with the Council to design effective measures to help improve 
management of the MSB fisheries. Whether those future actions would be 
amendments or framework adjustments would depend on the scope of the 
revised measures.
    Amendment 14 includes measures to address the catch of river 
herring and shad in the mackerel fishery. River herring (alewife and 
blueback herring) and shad (American shad and hickory shad) are 
anadromous species that co-occur seasonally with mackerel and are

[[Page 10031]]

harvested as incidental catch in the mackerel fishery. For the purposes 
of this rulemaking, the term ``river herring and shad'' refers to all 
four species. When river herring and shad are encountered in the 
mackerel fishery, they are either discarded at sea (bycatch) or 
retained and sold as part of the mackerel catch (incidental catch). For 
the purposes of this rulemaking, the terms bycatch and incidental catch 
are used interchangeably.

Approved Measures

    As noted in the proposed rule, some of the regulations implemented 
through Amendment 14 overlap with the regulations implemented through 
Amendment 5 to the Atlantic Herring FMP, which will publish as a final 
rule shortly. Several sections of regulatory text are affected by both 
actions. Since the Amendment 5 regulatory text is now finalized, the 
regulatory text presented in this final rule references the updated 
regulations. Therefore, it differs slightly in structure, but not 
content, from the regulations presented in the proposed rule.
    This final rule implements approved management measures that:
     Institute weekly vessel trip reports (VTRs) for all MSB 
permits to facilitate quota monitoring and cross-checking with other 
data sources;
     Require 48-hr pre-trip notification to retain more than 
20,000 lb (9.07 mt) of mackerel so NMFS has sufficient notice to assign 
observers to fishing vessels;
     Require VMS and daily catch reporting via VMS for limited 
access mackerel vessels to facilitate monitoring and cross-checking 
with other data sources;
     Require VMS and daily catch reporting via VMS for longfin 
squid/butterfish moratorium vessels to facilitate monitoring and cross-
checking with other data sources;
     Require 6-hr pre-landing notification via VMS to land over 
20,000 lb (9.07 mt) of mackerel to allow sufficient notice to 
facilitate at-sea monitoring, enforcement, and portside monitoring;
     Expand vessel requirements related to at-sea observer 
sampling to help ensure safe sampling and improve data quality;
     Prohibit slippage on limited access mackerel and longfin 
squid trips, with exceptions for safety concerns, mechanical failure, 
and when spiny dogfish prevents catch from being pumped aboard the 
vessel, and require a released catch affidavit (statement by the vessel 
operator) to be completed for each slippage event;
     Evaluate the existing river herring bycatch avoidance 
program to investigate providing real-time, cost-effective information 
on river herring distribution and fishery encounters;
     Implement a mortality cap for river herring and shad in 
the mackerel fishery; and
     Establish a mechanism within the fishery management plan 
whereby a river herring and shad catch cap can be developed through 
future framework actions.

1. Adjustments to the Fishery Management Program

    Amendment 14 revises several existing fishery management 
provisions, including VTR requirements, and VMS requirements and 
reporting.

VTR Frequency Requirements

    Currently MSB permit holders are required to submit fishing vessel 
logs, known as VTRs, on a monthly basis. Amendment 14 implements a 
weekly VTR submission requirement for all MSB permits and requires that 
VTRs be postmarked or received by midnight of the first Tuesday 
following the end of the reporting week. If an MSB permit holder did 
not make a trip during a given reporting week, a vessel representative 
is required to submit a report to NMFS stating so by midnight of the 
first Tuesday following the end of the reporting week. Any fishing 
activity during a particular reporting week (i.e., starting a trip, 
landing, or offloading catch) constitutes fishing during that reporting 
week and eliminates the need to submit a negative fishing report to 
NMFS for that reporting week. For example, if a vessel began a fishing 
trip on Wednesday, but returned to port and offloaded its catch on the 
following Thursday (i.e., after a trip lasting 8 days), the VTR for the 
fishing trip would need to be submitted by midnight Tuesday of the 
third week, but a negative report (i.e., a ``did not fish'' report) 
would not be required for either earlier week. This weekly VTR 
reporting requirement brings MSB reporting requirements in line with 
other Northeast region fisheries, improves monitoring of directed and 
incidental catch, and facilitates cross-checking with other data 
sources.

VMS Requirement, Daily Catch Reports and Pre-Landing Notifications

    Amendment 14 implements VMS requirements for vessels with limited 
access mackerel permits and longfin squid/butterfish moratorium permits 
to improve monitoring of directed and incidental catch. Currently, 
vessels with these permits are not required to have VMS, to submit 
activity declarations, to submit catch reports, or to submit pre-
landing notifications, although many vessels already possess VMS units 
due to requirements for other fisheries for which they hold permits.
    Amendment 14 requires limited access mackerel and longfin squid/
butterfish moratorium permit holders to purchase and maintain a VMS 
unit. Reimbursement for VMS units is available on a first come, first 
serve, basis until the funds are depleted. More information on the VMS 
reimbursement program is available from the Pacific States Marine 
Fisheries Commission (see ADDRESSES) and from the NMFS VMS Support 
Center, which can be reached at 888-219-9228. Information about 
approved VMS vendors will be provided in the small entity compliance 
guide for this final rule, which will be mailed to all permit holders 
and available online at http://www.nero.noaa.gov.
    Vessels are required to declare into the fishery via VMS for trips 
targeting mackerel or longfin squid, and are required to transmit 
location information at least every hour, 24 hr a day, throughout the 
year (see existing operating requirements at Sec.  648.10(c)(1)(i)). 
Vessel owners may request a letter of exemption from the NMFS Regional 
Administrator for permission to power down their VMS units if the 
vessel is continuously out of the water for more than 72 consecutive 
hours (see existing power-down exemption regulations at Sec.  
648.10(c)(2)). Vessels that do not already have VMS units installed 
have to confirm that their VMS units are operational by notifying the 
NMFS Office of Law Enforcement (OLE) (see existing installation 
notification procedures at Sec.  648.10(e)(1)).
    Amendment 14 requires daily VMS catch reporting for all limited 
access mackerel permits and longfin squid/butterfish moratorium permits 
when fishing on a declared mackerel or longfin squid trip. Daily VMS 
catch reports need to include: The VTR serial number for the current 
trip; month, day, and year the mackerel and/or longfin squid were 
caught; and total pounds retained. Daily mackerel and/or longfin squid 
VMS catch reports need to be submitted for each calendar day of the 
trip (midnight to midnight) and must to be submitted by 0900 hr of the 
following day. Reports are required even if mackerel and/or longfin 
squid caught that day has not yet been landed.
    Amendment 14 also requires that vessels landing more than 20,000 lb 
(9.07 mt) of mackerel submit a pre-landing notification via VMS. 
Vessels

[[Page 10032]]

must notify NMFS Office of Law Enforcement of the time and place of 
offloading at least 6 hr prior to arrival or, if fishing ends less than 
6 hr before arrival, immediately upon leaving the fishing grounds.

2. Adjustments to At-Sea Catch Monitoring

    One of the primary goals of Amendment 14 is to improve catch 
monitoring in the mackerel and longfin squid fisheries, with a focus on 
better evaluation of the incidental catch of river herring and shad. 
Amendment 14 codifies a number of requirements to facilitate at-sea 
catch monitoring, including adding a pre-trip notification for 
mackerel, observer assistance requirements, and proper notice of 
pumping and/or net haulback for observers in the mackerel and longfin 
squid fisheries. Amendment 14 also includes a measure to minimize the 
discarding of catch before it has been sampled by an observer.

Pre-Trip Notification in the Mackerel Fishery

    Amendment 14 requires a 48-hr pre-trip notification for all vessels 
intending to retain, possess or transfer 20,000 lb (9.07 mt) or more of 
Atlantic mackerel, in order to facilitate observer placement. Currently 
mackerel vessels have no pre-trip notification requirements. This 
measure assists the NMFS Northeast Fisheries Observer Program (NEFOP) 
scheduling and deployment of observers on directed mackerel trips, with 
minimal additional burden on the industry, helping ensure that the 
observer coverage target for the mackerel fishery is met. The list of 
information that must be provided to NEFOP as part of this pre-trip 
observer notification is described in the regulations at Sec.  
648.11(n)(1). Details of how vessels should contact NEFOP will be 
provided in the small entity compliance guide for this final rule, 
which will be mailed to all permit holders and available online at 
http://www.nero.noaa.gov. If a vessel operator is required to notify 
NEFOP to request an observer before embarking on a fishing trip, but 
does not notify NEFOP before beginning the fishing trip, that vessel 
would be prohibited from possessing, harvesting, or landing more than 
20,000 lb (9.07 mt) of mackerel on that trip. If a fishing trip is 
cancelled, a vessel representative must notify NEFOP of the cancelled 
trip, even if the vessel is not selected to carry observers. All 
waivers or selection notices for observer coverage will be issued by 
NEFOP to the vessel via VMS, so the vessel would have an on-board 
verification of either the observer selection or waiver.

Observer Assistance Requirements

    Northeast fisheries regulations (found at 50 CFR part 648) specify 
requirements for vessels carrying NMFS-approved observers, such as 
providing observers with food and accommodations equivalent to those 
available to the crew; allowing observers to access the vessel's 
bridge, decks, and spaces used to process fish; and allowing observers 
access to vessel communication and navigations systems. Amendment 14 
expands these requirements, such that vessels issued limited access 
mackerel and longfin squid/butterfish moratorium permits and carrying 
NMFS-approved observers must provide observers with the following: (1) 
A safe sampling station adjacent to the fish deck, and a safe method to 
obtain and store samples; (2) reasonable assistance to allow observers 
to complete their duties; (3) advance notice of when pumping or net 
haulback will start and end and when sampling of the catch may begin; 
and (4) visual access to net/codend or purse seine and any of its 
contents after pumping has ended, including bringing the codend and its 
contents aboard if possible. These measures are anticipated to help 
improve at-sea catch monitoring in the mackerel and longfin squid/
butterfish fisheries by enhancing the observer's ability to collect 
quality data in a safe and efficient manner. Many vessels already 
provide this assistance voluntarily.

Measures To Prevent Catch Discards Before Observer Sampling

    Amendment 14 requires limited access mackerel and longfin squid 
moratorium vessels to bring all catch aboard the vessel and make it 
available for sampling by an observer. The Council recommended this 
measure to improve the quality of at-sea monitoring data by reducing 
the discarding of unsampled catch. If catch is discarded before it has 
been made available to the observer, that catch is defined as slippage. 
Fish that cannot be pumped and that remain in the net at the end of 
pumping operations are considered operational discards and not 
slippage. Some stakeholders believe that slippage is a serious problem 
in the mackerel and longfin squid fisheries because releasing catch 
before an observer can estimate its species composition undermines 
accurate catch accounting.
    Amendment 14 allows catch to be slipped if: (1) Bringing catch 
aboard compromises the safety of the vessel or crew; (2) mechanical 
failure prevents the catch from being brought aboard; or (3) spiny 
dogfish prevents the catch from being pumped aboard. If catch is 
slipped, even for the exempted reasons, the vessel operator is required 
to complete a released catch affidavit within 48 hr of the end of the 
fishing trip. The released catch affidavit would detail: (1) Why catch 
was slipped; (2) an estimate of the quantity and species composition of 
the slipped catch and any catch brought aboard during the haul; and (3) 
the time and location of the slipped catch.
    In 2010, the NMFS NEFOP revised the training curriculum for 
observers deployed on herring and mackerel vessels to focus on 
effectively sampling in high-volume fisheries. NEFOP also developed a 
discard log to collect detailed information on discards in the herring 
fishery, including slippage, such as why catch was discarded, the 
estimated amount of discarded catch, and the estimated composition of 
discarded catch. Recent slippage data collected by observers indicate 
that: Information about these events, and the amount and composition of 
fish that are slipped, has improved; and the number of slippage events 
by limited access herring vessels has declined. Given NEFOP's recent 
training changes and its addition of a discard log, NMFS believes that 
observer data on slipped catch, rather than released catch affidavits, 
provide the best information to account for discards. However, there is 
still a compliance benefit to requiring a released catch affidavit 
because it would provide information regarding the operator's decisions 
and may help NMFS to understand why slippage occurs.
    NMFS expects that prohibiting slippage will help reduce slippage 
events in the mackerel and longfin squid fisheries, thus improving the 
quality of observer catch data, especially data on bycatch species 
encountered in the mackerel and longfin squid fisheries. Additionally, 
NMFS expects that the slippage prohibition will help minimize bycatch, 
and bycatch mortality, to the extent practicable in the mackerel and 
longfin squid fisheries.
    Lastly, Amendment 14 allows for a number of measures related to at-
sea sampling to be modified through the specifications process, 
including: (1) Observer provisions to maximize sampling; and (2) 
exceptions for the requirement to pump/haul aboard all fish from net 
for inspection by at-sea observers.

[[Page 10033]]

3. Measures To Address River Herring and Shad Interactions

    Amendment 14 establishes several measures to address the catch of 
river herring and shad in the mackerel fishery to minimize bycatch and 
bycatch mortality to the extent practicable. River herring (the 
collective term for alewife and blueback herring) are anadromous 
species that may co-occur seasonally with Atlantic herring and Atlantic 
mackerel and are harvested as a non-target species in the Atlantic 
herring and Atlantic mackerel fisheries.
    River herring are managed by the Atlantic States Marine Fisheries 
Commission (ASMFC) and individual 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 water 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 is not warranted at this time. Following this 
determination, NMFS established a technical working group and continues 
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 yr represent sustained trends. NMFS intends to revisit its 
river herring status determination within the next 5 yr.
    This action establishes a mortality cap on river herring and shad 
in the mackerel fishery, where the mackerel fishery would close once it 
has been determined to cause a certain amount of river herring and/or 
shad mortality. Based on the results of the ASMFC's assessments for 
river herring and shad, data do not appear to be robust enough to 
determine a biologically based catch cap for these species, and/or the 
potential effects on these populations if a catch cap is implemented on 
a coast-wide scale. Nevertheless, the Council believes that capping the 
allowed level of river herring and shad catch in the mackerel fishery 
should provide a strong incentive for the industry to avoid river 
herring and shad, and will help to minimize encounters with these 
species.
    While Amendment 14, as approved, includes the measure to allow caps 
and the general methodology for applying the caps, the MSB 
specifications process for the 2014 fishing year will establish the 
actual cap amount and other logistical details of the cap (e.g., the 
closure threshold and post-closure possession limit). The process for 
2014 MSB specifications began in May 2013 with a MSB Monitoring 
Committee meeting to develop technical recommendations on the cap level 
and any necessary management measures. At its June 2013 meeting, the 
Council selected a combined catch cap for river herring and shad of 236 
mt, a trip limit threshold of 95 percent, and a post-threshold 
incidental trip limit of 20,000 lb (9.07 mt). The Council finalized its 
analysis of these measures and submitted its final recommendation to 
NMFS as part of the 2014 MSB specifications package. The proposed rule 
for 2014 MSB specifications, which NMFS intends to publish early in 
2014, will provide the opportunity for interested parties to comment on 
the actual proposed cap level and management measures related to the 
cap. NMFS intends to implement the river herring and shad cap, if 
approved, in the spring of 2014.
    The New England Fishery Management Council is also considering 
establishing a catch cap for river herring and shad in the Atlantic 
herring fishery in Framework 3 to the Atlantic Herring FMP. Due to the 
mixed nature of the herring and mackerel fisheries, especially during 
January through April, the potential for the greatest river herring 
catch reduction would come from the implementation of a joint river 
herring catch and shad cap for both the fisheries. At its September 
2013 meeting, the New England Council took final action on Framework 3 
and recommended establishing river herring and shad catch caps for 
midwater and bottom trawl gear in the herring fishery. Framework 3, if 
approved, is expected to be implemented in the spring or summer of 
2014. Based on the ASMFC's recent river herring assessment, data do not 
appear to be robust enough to determine a biologically-based river 
herring catch cap and/or the potential effects on river herring 
populations of such a catch cap on a coast-wide scale. Still, similar 
to the Mid-Atlantic Council, the New England Council intends to 
establish the ability to consider a river herring catch cap and 
approaches for setting a river herring catch cap in the Atlantic 
herring fishery as soon as possible.
    Amendment 14 establishes a mechanism to develop, evaluate, and 
consider regulatory requirements for a river herring bycatch avoidance 
strategy in small-mesh pelagic fisheries. A river herring bycatch 
avoidance strategy will be developed and evaluated by the Council, in 
cooperation with participants in the mackerel fishery, specifically the 
Sustainable Fisheries Coalition (SFC), the Massachusetts Division of 
Marine Fisheries (MADMF), and the University of Massachusetts Dartmouth 
School of Marine Science and Technology (SMAST). This measure is based 
on the existing river herring bycatch avoidance program involving SFC, 
MADMF, and SMAST, which is voluntary and seeks to reduce river herring 
and shad bycatch by working within current fisheries management 
programs, without the need for additional regulatory requirements. The 
river herring bycatch avoidance program includes portside sampling, 
real-time communication with the SFC on river herring distribution and 
encounters in the herring fishery, and data collection to evaluate if 
oceanographic features may predict high rates of river herring 
encounters.
    Amendment 14 requires that, within 6 months of completion of the 
existing SFC/MA DMF/SMAST river herring bycatch avoidance project, the 
Council will review and evaluate the results from the river herring 
bycatch avoidance project, and consider a framework adjustment to the 
MSB FMP to establish river herring bycatch avoidance measures. Measures 
that may be considered as part of the framework adjustment include: (1) 
Mechanisms to track herring fleet activity, report bycatch events, and 
notify the herring fleet of encounters with river herring; (2) the 
utility of test tows to determine the extent of river herring bycatch 
in a particular area; (3) the threshold for river herring bycatch that 
would trigger the need for vessels to be alerted and move out of a 
given area; and (4) the distance and/or time that vessels would be 
required to move from an area.
    The Council considered other measures to address river herring and 
shad bycatch in Amendment 14, including closed areas. Because the

[[Page 10034]]

seasonal and inter-annual distribution of river herring and shad is 
highly variable in time and space, the Council determined that the most 
effective measures in Amendment 14 to address river herring and shad 
bycatch would be those that increase monitoring, bycatch accounting, 
and promote cooperative efforts with the industry to minimize bycatch 
to the extent practicable. In order to streamline the regulatory 
process necessary to adjust the river herring and shad mortality caps, 
or enact time area management for river herring and shad, if scientific 
information to support such management measures becomes available, this 
action adds river herring and shad catch caps and time/area closures to 
the list of measures that can be addressed via framework adjustment.

4. Adding Individual River Herring and Shad Species as Stocks in the 
MSB Fishery

    Though there are currently no measures in Amendment 14 related to 
this issue, the Council initially considered alternatives in the 
Amendment 14 draft EIS to include the four river herring and shad 
species as stocks in the MSB FMP. Instead, the Council initiated a 
separate amendment, Amendment 15 to the MSB FMP, to explore the need 
for conservation and management of these species more thoroughly, and 
analyze all of the MSA provisions (i.e., management reference points, 
description and delineation of essential fish habitat, etc.). Scoping 
for MSB Amendment 15 began in October 2012 (77 FR 65867). Based on NMFS 
guidance, the Council completed a document that examined a range of 
issues related to Federal management for river herring and shad. The 
document presented legal requirements for managing species under the 
MSA, the existing management and protection of river herring and shad, 
and the potential benefits of managing them under the MSA in contrast 
to the other authorities already providing protection. After reviewing 
the document, the Council determined at its October 2013 meeting that 
it should not go forward with the development of Amendment 15 at this 
time. The Council's decision was based on a range of considerations 
related to ongoing river herring and shad conservation and management 
efforts, including conservation efforts for river herring and shad at 
the local, state and Federal level, the pending incidental catch caps 
for river herring and shad in the Atlantic mackerel and Atlantic 
herring fisheries, the recent determination by NMFS that river herring 
are not endangered or threatened, and the NMFS commitment to expand 
engagement in river herring conservation following the ESA 
determination. The Council also decided to re-evaluate Federal 
management of river herring and shad in 3 yr after a number of other 
actions related to river herring and shad conservation have been 
implemented.

Disapproved Measures

    The following sections detail why NMFS's disapproved three measures 
that were proposed as part of Amendment 14. NMFS disapproved these 
three measures because it found the measures to be inconsistent with 
the MSA and other applicable law. The proposed rule for Amendment 14 
described NMFS's concerns with these measures' consistency with the MSA 
and other applicable law. After review of public comments, NMFS, on 
behalf of the Secretary, disapproved these measures; therefore, this 
final rule does not include regulations for these measures.

1. Increased Observer Coverage Requirements

    Currently, the NMFS Northeast Fisheries Science Center (NEFSC) 
determines observer coverage levels in the mackerel fishery based on 
the standardized bycatch reporting methodology (SBRM) and after 
consultations with the Council. Observer coverage in the mackerel 
fishery is currently fully funded by NMFS. In Amendment 14, the Council 
recommended increases in the observer coverage in the mackerel fishery, 
specifically 100-percent observer coverage on all limited access 
mackerel vessels using midwater trawl (i.e., Tiers 1, 2 and 3) and Tier 
1 mackerel vessels using small-mesh bottom trawl, 50-percent coverage 
on Tier 2 mackerel vessels using small-mesh bottom trawl, and 25-
percent on Tier 3 mackerel vessels using small-mesh bottom trawl. Many 
stakeholders believe this measure is necessary to accurately determine 
the extent of bycatch and incidental catch in the mackerel fishery. The 
Council recommended this measure to gather more information on the 
mackerel fishery so that it may better evaluate and, if necessary, 
implement additional measures to address catch and discards of river 
herring and shad. The increased observer coverage level recommendations 
were coupled with a target maximum industry contribution of $325 per 
day. There are two types of costs associated with observer coverage: 
Observer monitoring costs, such as observer salary and travel costs; 
and NMFS support and infrastructure costs, such as observer training, 
data processing, and infrastructure. The monitoring costs associated 
with an observer in the mackerel fishery are higher than $325 per day. 
Upon legal analysis of this measure, the cost-sharing of monitoring 
costs between NMFS and the industry would violate the Antideficiency 
Act. Therefore, based on this analysis, there is no current legal 
mechanism to allow cost-sharing of monitoring costs between NMFS and 
the industry.
    Throughout the development of Amendment 14, NMFS advised the 
Council that Amendment 14 must identify a funding source for increased 
observer coverage because NMFS's annual appropriations for observer 
coverage are not guaranteed. Some commenters asserted that the $325 per 
day industry contribution was not a limit, but a target, and that the 
Council intended the industry to pay whatever is necessary to ensure 
100-percent observer coverage. NMFS disagrees, and does not believe the 
amendment specifies that the industry would pay all the monitoring 
costs associated with 100-percent observer coverage, nor does the 
amendment analyze the economic impacts of the industry paying all the 
monitoring costs. The FEIS for Amendment 14 analyzes the industry 
paying $325 per day, and the DEIS analyzes the cost of vessels paying 
$800 per day (estimated sum of observer monitoring costs), but it does 
not analyze a range of that would approximate total monitoring costs. 
Budget uncertainties prevent NMFS from being able to commit to paying 
for increased observer coverage in the mackerel fishery. Requiring NMFS 
to pay for 100-percent observer coverage would amount to an unfunded 
mandate. Because Amendment 14 does not identify a funding source to 
cover the costs of increased observer coverage, the measure is not 
sufficiently developed to approve at this time. Therefore, NMFS had to 
disapprove the 100-percent observer coverage requirement. With the 
disapproval of this measure, this action maintains the existing 
observer coverage levels and full Federal funding for observer coverage 
the mackerel fishery.
    In 2013, a working group was formed to identify a workable, legal 
mechanism to allow for industry-funded observer coverage in the herring 
fishery, including staff from the New England and Mid-Atlantic Councils 
and NMFS. To further explore the legal issues surrounding industry-
funded observer coverage, NMFS formed a working group of Greater 
Atlantic Regional Fisheries Office, NEFSC, General Counsel, and 
Headquarters staff. The

[[Page 10035]]

NMFS working group is currently exploring possibilities.
    In the November 7, 2013, partial approval letter to the Council, 
NMFS offered to be the technical lead on an omnibus amendment to 
establish an administrative mechanism to allow for industry-funded 
observer coverage in New England and Mid-Atlantic FMPs. At its October 
2013 meeting, the Council considered NMFS's offer and encouraged NMFS 
to begin development of the omnibus amendment. NMFS expects to present 
a preliminary range of alternatives for the omnibus amendment to the 
New England and Mid-Atlantic Councils in early 2014.
    Additionally, other measures implemented in this action help 
improve monitoring in the mackerel fishery. These measures include the 
requirement for vessels to contact NMFS at least 48 hr in advance of a 
fishing trip to facilitate the placement of observers, observer sample 
station and reasonable assistance requirements to improve an observer's 
ability collect quality data in a safe and efficient manner, and the 
slippage prohibition and the sampling requirements for midwater trawl 
vessels fishing in groundfish closed areas to minimize the discarding 
of unsampled catch.
    The same measure that would have required increased observer 
coverage, coupled with a $325 contribution by the industry, would have 
also required that: (1) The Council would re-evaluate the increased 
observer coverage level 2 yr after implementation; and (2) observer 
service provider requirements for the Atlantic sea scallop fishery 
would apply to observer service providers for the mackerel fishery. 
NMFS believes these additional measures are inseparable from the 100-
percent observer coverage requirement; therefore, NMFS also disapproved 
these measures. With the disapproval of these measures, this action 
maintains the existing SBRM-based observer coverage provisions for the 
mackerel fishery.

2. Measures To Minimize Slippage

    Amendment 14 proposed establishing a slippage cap for the mackerel 
fishery. Under the proposed measures, once there have been 10 slippage 
events fleet-wide in the mackerel fishery by vessels carrying an 
observer, vessels that subsequently slip catch would have been required 
to immediately return to port. NMFS would have been required to track 
slippage events and notify the fleet once the slippage cap had been 
reached. Slippage events due to conditions that may compromise the 
safety of the vessel or crew, mechanical failure, or dogfish in the 
pump would not count against the slippage cap. The Council recommended 
these slippage caps to discourage the inappropriate use of the slippage 
exceptions, and to allow for some slippage, but not unduly penalize the 
fleet.
    Throughout the development of Amendment 14, NMFS identified 
potential concerns with the rationale supporting, and legality of, the 
slippage caps. The need for, and threshold for triggering, a slippage 
cap (10 slippage events) does not appear to have a strong biological or 
operational basis. Under the proposed measure, once a slippage cap had 
been met, vessels that slip catch with an observer aboard for reasons 
other than safety, mechanical failure, or spiny dogfish in the pump 
would have been required to return to port. Vessels could have 
continued fishing following slippage events 1 thorough 10, but would 
have been required to port following the 11th slippage event, 
regardless of the vessel's role in the first 10 slippage events. 
Conversely, vessels responsible for slippage events 1 through 10, could 
continue fishing after the 11th slippage event, provided they do not 
slip catch again. NMFS believes this aspect of the proposed measure is 
inequitable.
    From 2006-2010, approximately 26 percent (73 of 277 or 15 per year) 
of hauls on observed mackerel trips (trips that caught 50 percent or 
more mackerel or at least 100,000 lb (45.34 mt) of mackerel) had some 
unobserved catch. Hauls may be unobserved for a variety of reasons--
e.g., transfer of catch to another vessel without an observer, 
observers not being on deck to sample a given haul, or hauls released 
from the net while still in the water. The estimate of 15 unobserved 
hauls per year would thus be an upper bound on slippage events. The 
Council's analysis noted that while documented slippage events are 
relatively infrequent, increases above the estimated 15 unobserved 
hauls per year could compromise observer data because large quantities 
of fish can be caught in a single tow. However, the Council's analysis 
did not provide sufficient rationale for why it is biologically or 
operationally acceptable to allow the fleet 10 un-exempted slippage 
events prior to triggering the trip termination requirement, as opposed 
to any other number.
    The proposed Amendment 14 measures to minimize slippage were based 
on the sampling requirements for midwater trawl vessels fishing in 
Groundfish Closed Area I. However, there are important differences 
between these measures. Under the Closed Area I requirements, midwater 
trawl vessels are allowed to continue fishing if they slip catch, but 
they must leave Closed Area I for the remainder of that trip. The 
requirement to leave Closed Area I is less punitive than the proposed 
requirement in Amendment 14 to return to port when slippage occurs. 
Additionally, because the consequences of slipping catch apply 
uniformly to all vessels under the Closed Area I requirements, 
inequitable application to the fleet is not an issue for the Closed 
Area I requirements, like NMFS believes it is for the proposed 
Amendment 14 slippage caps.
    If the Council wants to revise the slippage cap, the revisions 
would need to address the biological/administrative justification for 
the cap's trigger and equity within the fleet. The slippage cap could 
be revised to be more similar to the sampling requirements in 
Groundfish Closed Area I, such that all vessels that slip catch have a 
consequence. This revision would alleviate NMFS's concern with the 
equitable application of the slippage cap among those who contribute to 
reaching the cap, as well as its concern with the basis for triggering 
the cap. The consequence of slipped catch could be a requirement to 
return to port, or to leave a defined area, such as a statistical area, 
where the slippage event occurred.
    Even through the slippage cap was disapproved, the prohibition on 
slippage, the released catch affidavit, and the ongoing data collection 
by NEFOP still allow for improved monitoring in the mackerel fishery, 
increased information regarding discards, and an incentive to minimize 
the discarding of unsampled catch.

3. Reporting Requirements for Dealers

    During the development of Amendment 14, some stakeholders expressed 
concern that MSB catch is not accounted for accurately and that there 
needs to be a standardized method to determine catch. In an effort to 
address that concern, Amendment 14 proposed requiring MSB dealers to 
accurately weigh all fish or use volume-to-weight conversions for all 
transactions with over 2,500 lb (1.13 mt) of longfin squid or 20,000 lb 
(9.07 mt) of mackerel. If catch is not sorted by species, dealers would 
be required to document for each transaction how they estimate relative 
species composition. During the development of Amendment 14, NMFS 
identified concerns with the utility of this measure.
    Dealers are currently required to accurately report the weight of 
fish, which is obtained by scale weights and/or volumetric estimates. 
Because the proposed measure did not specify how

[[Page 10036]]

fish would be weighed and would still have allowed volumetric 
estimates, the proposed measure might not change dealer behavior and, 
therefore, might not lead to any measureable change in the accuracy of 
catch weights reported by dealers. Further, this proposed measure did 
not provide standards for estimating species composition. Without 
standards for estimating species composition or for measuring the 
accuracy of the estimation method, NMFS would likely be unable to 
evaluate the sufficiency of the methods used to estimate species 
composition. For these reasons, the requirement for dealers to document 
the methods used to estimate species composition might not have 
improved the accuracy of dealer reporting.
    While the measure requiring dealers to document methods used to 
estimate species composition may not have direct utility in monitoring 
catch in the MSB fisheries, it might still inform NMFS's and the 
Council's understanding of the methods used by dealers to determine 
species weights. That information might aid in development of 
standardized methods for purposes of future rulemaking. Furthermore, 
full and accurate reporting is a permit requirement; failure to fully 
and accurately report could render dealer permit renewals incomplete, 
precluding renewal of the dealer's permit. Therefore, there is 
incentive for dealers to make reasonable efforts to document how they 
estimate relative species composition, which might increase the 
likelihood that useful information would be obtained as a result of 
this requirement.
    In light of the foregoing, NMFS evaluated whether the proposed 
measure had practical utility, as required by the MSA and the Paperwork 
Reduction Act (PRA), that would have outweighed the additional 
reporting and administrative burden on the dealers. In particular, NMFS 
considered whether and how the proposed measure would help prevent 
overfishing, promote the long-term health and stability of the MSB 
resource, monitor the fishery, facilitate inseason management, or judge 
performance of the management regime.
    NMFS determined that this measure would not measurably improve the 
accuracy of dealer reporting or the management of the MSB resources. 
NMFS also determined that this measure does not comply with National 
Standard 7's requirement to minimize costs and avoid unnecessary 
duplication to the extent practicable, and the PRA's requirement for 
the utility of the measure to outweigh the additional reporting and 
administrative burden on the dealers. Therefore, NMFS disapproved the 
proposed dealer reporting requirements, and this action maintains the 
existing requirement that dealers accurately report the weight of fish.
    If the Council wants to revise dealer reporting requirements in a 
future action, the revisions would need to address issues concerning 
accuracy and utility of the information reported and could be addressed 
in several ways. For example, the Council could select Alternative 2b 
in Amendment 14 (requiring vessel owners to review and validate data 
for their vessels in Fish-on-Line). This measure would be a change from 
status quo, and it has some utility as it helps identify, and possibly 
reduce, discrepancies between dealer and vessel reports. Another way 
for the Council to revise the dealer reporting requirement would be to 
clarify and standardize the methods used to ``accurately weigh all 
fish'' by requiring the use of scales or standardized volume 
measurement. If the methods to ``accurately weigh all fish'' were 
specified, it would likely change dealer behavior from status quo, and 
may, depending on the methods, improve the accuracy of dealer reports.
    Alternatively, the Council could take this opportunity to revisit 
the original concern that sparked the development of the dealer 
reporting requirement, which was the fact that landing data were not 
verified by a third-party, and revise the measure to better address 
that concern. Lastly, the sub-option requiring dealers to document how 
they estimate the composition of catch was intended to gather 
information on methods used by dealers to estimate species composition. 
Another way to obtain that type of information would be to gather it as 
part of a data collection program that would update community profiles 
for Northeast fisheries.

Comments and Responses

    NMFS received 15 comment letters during the comment period for the 
NOA and proposed rule. Three of the letters were from the general 
public, and 12 were from environmental advocacy groups. Five of the 
letters from environmental advocacy groups were form letters that 
contained signatures and personalized comments, including: 47 total 
signatures and one personalized comment on a letter from the Natural 
Resources Defense Council; 1,810 signatures on a letter from the 
Chesapeake Bay Foundation; 32,219 total signatures with 2,694 
personalized comments on a letter from the Pew Charitable Trusts; 1,147 
signatures and 279 personalized comments on a letter from the Ocean 
River Institute; and 4,716 total signatures with 230 personalized 
comments on a letter from the National Audubon Society. Only comments 
relevant to measures considered in Amendment 14 are summarized and 
addressed below. Comments related to other fishery management actions 
or general fishery management practices are not addressed here.

1. General Comments

    Comment 1: Many commenters urged NMFS to approve Amendment 14 in 
its entirety, but provided no specific comments on the proposed 
measures. Additional comments acknowledged that the amendment contains 
many important components, but commenters believe the river herring and 
shad catch cap, the slippage cap, 100-percent observer coverage on mid-
water trawl vessels, and accurate dealer weighing of catch are 
especially important for reducing bycatch of river herring and shad in 
the mackerel fishery.
    Response: NMFS supports improvements to fishery-dependent data 
collections by expanding, to the extent practicable, at-sea monitoring 
of the mackerel fishery and reducing bycatch and unnecessary 
discarding. However, NMFS determined that the increased observer 
coverage requirements, slippage caps, and dealer reporting alternatives 
proposed in Amendment 14 were inconsistent with the MSA and other 
applicable law. Regardless of NMFS's desire to increase monitoring and 
reduce bycatch in the mackerel fishery, it cannot approve and implement 
measures it believes are inconsistent with applicable law. Amendment 14 
has many tools to improve management of the mackerel fishery (i.e., 
expanded vessel reporting requirements) and to monitor and mitigate 
river herring and shad bycatch (i.e., the slippage prohibition and 
river herring and shad catch caps).
    Comment 2: Wild Oceans commented that the proposed rule incorrectly 
states that one of the goals of Amendment 14 is to ``improve catch 
monitoring in the mackerel and longfin squid fisheries.'' They point 
out that the Amendment 14 FEIS specifically ties the monitoring 
improvements for these fisheries to improving the precision of river 
herring and shad catch estimates, and that the proposed alternatives 
must be evaluated in this context to determine their utility.
    Response: NMFS agrees that the goal was not fully stated in some 
places in the proposed rule. We have clarified the statement of the 
goal in this final rule. The full statement of the goal was not 
overlooked in our evaluation of the

[[Page 10037]]

Council's proposed alternatives. Again, while we are supportive of 
improvements to data collection to strengthen our understanding of 
river herring and shad bycatch in the MSB fisheries, we had to 
disapprove the slippage caps, increased observer coverage requirements, 
and dealer reporting requirement because of the inconsistency of these 
measures with the MSA and other applicable laws.
    Comment 3: NMFS referenced the Herring Amendment 5 partial approval 
in the Amendment 14 proposed rule, and linked concerns with the 
disapproved measures to several measures in the Amendment 14 proposed 
rule. Several commenters expressed their disagreement with NMFS's 
approvability concerns, and believe that NMFS fails to recognize the 
substantial need for these measures, their central role in the overall 
Amendment 14 reform package, and their strong justification in the FEIS 
for Amendment 14. A number of other commenters raised similar 
sentiments, focusing on their belief that the proposed measures strike 
a carefully designed balance between conservation and industry needs, 
are consistent with the MSA and other applicable law, and should be 
approved in full. Some commenters went on to say that, if NMFS 
disapproves the measures in Amendment 14, it must provide specific and 
timely recommendations for ``fixing'' the disapproved measures, 
consistent with the process for resubmittal of disapproved measures 
outlined in the MSA.
    Response: NMFS expressed concerns about the proposed increased 
observer coverage requirements, the slippage caps, and the dealer 
reporting requirements throughout the development of this amendment. 
While these measures have strong support from many stakeholders, they 
were not modified in a manner to alleviate NMFS's concerns. The 
proposed rule for Amendment 14 described potential concerns about these 
measures' consistency with the MSA and other applicable law. No new or 
additional information was identified by commenters during the public 
comment period on the NOA and proposed rule for Amendment 14 to address 
NMFS's concerns with the identified deficiencies of these measures. 
Therefore, on November 7, 2013, NMFS determined these three measures 
must be disapproved.
    NMFS provided suggestions for alleviating our approvability 
concerns in both our November 7, 2013, partial approval letter to the 
Council, and in the preamble to the proposed rule, in the discussion of 
the since-disapproved measures. If the Council chooses to revise these 
measures, NMFS will continue to work with the Council to design 
effective measures that help improve management of the mackerel 
fishery. Revised measures could be addressed in upcoming Council 
actions. Whether such actions would be amendments or frameworks will 
depend on the scope of the revised measures.
    The measures in Amendment 14 that were approved by NMFS are 
consistent with the MSA and other applicable law, and analysis in the 
FEIS indicates these measures will improve data quality, as well as 
bycatch avoidance and minimization.
    Comment 4: The Herring Alliance and NRDC expressed their view that 
they support the majority of Amendment 14, but that Amendment 14 should 
be disapproved to the extent that it fails to include river herring and 
shad in a Federal FMP. They note that a Federal FMP would enable NMFS 
to set science-based annual catch limits, identify and protect 
essential fish habitat, gather better data and improve the population 
estimates of river herring and shad, and coordinate with state efforts 
to restore river herring and shad. Several other commenters also 
expressed their support for including river herring and shad in a 
Federal FMP as part of Amendment 15 to the MSB FMP.
    Response: It is not clear what the commenters meant by disapproving 
Amendment 14 ``to the extent that it fails to include river herring and 
shad in a Federal FMP.'' Amendment 14 is not required to consider all 
aspects of management of the MSB fisheries; instead the amendment is 
focused on considering measures to better evaluate the incidental catch 
of river herring and shad, and to address river herring and shad 
bycatch issues in the mackerel fishery. As noted in this preamble, 
because of the complexity of the issue of Federal management of river 
herring and shad, the Council voted in June 2012 to move consideration 
of this issue out of Amendment 14 and into Amendment 15. Thus, 
considering whether river herring and shad should be stocks in the MSB 
FMP outside the scope of Amendment 14. If the comment meant that 
Amendment 14 should be disapproved in its entirety because it does not 
add river herring and shad to a Federal FMP, then important river 
herring and shad protection measures implemented through this action, 
including the increased reporting requirements for mackerel and longfin 
squid vessels, the slippage prohibitions, and the river herring and 
shad catch cap, would also be disapproved. NMFS determined these 
measures are administratively feasible and offer conservation benefits 
to river herring and shad, and approved them for implementation.

2. Comments on Adjustments to the Fishery Management Program

    Comment 5: While most commenters expressed their overall support 
for measures proposed in Amendment 14, Wild Oceans and PEW Charitable 
Trusts specifically supported the adjustments to vessel reporting 
requirements, including: Weekly VTR for all MSB permits; the 48-hr pre-
trip notification for mackerel; VMS requirements for mackerel and 
longfin squid; and the 6-hr pre-landing notification for mackerel.
    Response: NMFS concurs with the commenters, because NMFS believes 
these measures will help improve monitoring, improve overall management 
of the MSB fisheries, and are consistent with the MSA and other 
applicable law. NMFS approved these measures and this action implements 
them.
    Comment 6: Wild Oceans expressed disappointment that, given the 
mixed nature of the herring and mackerel fisheries in Quarter 1, a 
recommendation raised at a joint meeting of the technical teams for 
Amendments 5 and 14 to create a ``mixed trip'' or ``pelagic'' VMS 
declaration for these fisheries was not included in the proposed rule. 
They expressed concern that ambiguity in the VMS declaration procedures 
could weaken the enforcement of fishery-specific conservation measures, 
such as the river herring and shad catch caps.
    Response: NMFS agrees with the commenter's concern, and did move 
forward with the recommendation to combine the declarations for the 
herring, mackerel, and longfin squid fisheries to ensure maximum 
enforceability of fishery-specific conservation measures. While 
regulations in this action specify that vessel operators must make 
appropriate trip declarations, NMFS does not include specific 
declaration types in regulations because regulatory requirements do not 
provide sufficient flexibility, should specific declaration provisions 
need to change. NMFS communicates specific details of the requirement, 
including trip declaration instructions, to industry in bulletins or 
small entity compliance guides. In this case, instructions on how to 
comply with the new combined declaration will be sent to industry in 
the small entity compliance guide for this rule.
    Comment 7: Wild Oceans, the Herring Alliance, and PEW Environment 
Group

[[Page 10038]]

urged NMFS to approve the requirement that MSB dealers accurately weigh 
all fish because accurate landings data will ensure catch 
accountability, including catch estimates for river herring and shad, 
for the MSB fisheries. These comments also noted that the measure has 
strong support from stakeholders. The commenters disagreed with NMFS's 
language in the proposed rule that describe this measure as essentially 
status quo. They believe this measure is intended to eliminate the 
practice of dealers reporting visual estimates of catch weight in favor 
of verifiable methods such as scales or volumetric estimates of fish 
holds. The commenters also believe that the measure is different than 
the status quo because they believe it requires dealers to document 
their volume-to-weight estimation methodology, and to justify its use 
as opposed to an actual weight, which will improve the Council's 
understanding of the methods used by dealers to determine species and 
weight compositions so that appropriate standards can be developed and 
implemented in future rulemakings.
    Response: Section 2.2 of the Amendment 14 FEIS notes that, while a 
majority of MSB dealers weigh their landings using scales, there are 
some instances, especially with mackerel, where product may be de-
watered and shipped by truck before it is weighed. The FEIS goes on to 
say that, while in some instances the receiver may report back a 
weight, in other cases weights may be estimated based on the size of 
the shipping container or truck volume. Because the FEIS, and the 
Council's proposed alternative 2g, describe using a volume-to-weight 
conversion, possibly an estimate of a container of fish to generate the 
weight of any container of a similar size, NMFS believes that the 
amendment would have allowed for the practice of visual estimates of 
catch weight, rather than ending it. In Section 7.2, the final EIS 
concludes that dealers are unlikely to change their current operations 
without a requirement to do so, therefore it is unlikely that that this 
measure would have improved the accuracy of weights reported by dealers 
as compared to the status quo. The requirement would not have asked for 
dealers to justify why they must use a volume-to-weight estimation 
methodology, rather than actually weighing fish, and would simply ask 
for dealers to document the approach they use to determine the 
composition of mixed catch. Finally, as noted in this preamble, NMFS 
agrees that collecting information about the methods used by dealers to 
estimate species weight and composition could allow for the development 
of improved standards in future rulemakings. However, if the goal of 
this measure is to simply take a census of current dealer practices, it 
is unnecessarily punitive to tie that information collection to permit 
issuance. Another way to obtain that type of information would be to 
gather it as part of a data collection program that would update 
community profiles for Northeast fisheries.

3. Comments on Adjustments to At-Sea Monitoring

    Comment 8: The Herring Alliance, Wild Oceans, PEW Charitable 
Trusts, and Oceana urged NMFS to approve critical measures in Amendment 
14 designed to better monitor catch and bycatch in the mackerel 
fishery, including the 100-percent coverage requirement on all midwater 
trawl mackerel trips and Tier 1 small-mesh bottom trawl mackerel trips, 
50-percent coverage on Tier 2 small-mesh bottom trawl mackerel trips, 
and 25-percent on Tier 2 small-mesh bottom trawl mackerel trips. They 
point out that the Council approved the increased observer coverage 
requirement with widespread support from commercial and recreational 
fishermen, eco-tourism and coastal businesses, river herring and 
coastal watershed advocates, and other members of the public. They 
believe that increased observer coverage is justified given the fleet's 
harvesting capacity and its demonstrated bycatch, and makes it possible 
to document rare bycatch events. Additionally, they believe the 
increased coverage measures are consistent with the MSA and other 
applicable law and necessary to improve the accuracy and precision of 
data used to make management decisions, and ensure that both target and 
non-target species are effectively administered without regulatory 
loopholes.
    Response: Throughout the development of Amendment 14, NMFS advised 
the Council that Amendment 14 must identify a funding source for 
increased observer coverage for the types of trips referenced by the 
commenter because NMFS's annual appropriations for observer coverage 
are not guaranteed. Budget uncertainties prevent NMFS from being able 
to commit to paying for increased observer coverage in the herring 
fishery. Requiring NMFS to pay for increased observer coverage levels 
would amount to an unfunded mandate, meaning regulations would obligate 
NMFS to implement something it cannot pay for. Because Amendment 14 
does not identify a funding source to cover the costs of increased 
observer coverage, the measure is not sufficiently developed to approve 
at this time. Therefore, NMFS had to disapprove the increased observer 
coverage requirements. With the disapproval of this measure, this 
action maintains the existing SBRM observer coverage levels and Federal 
observer funding for the mackerel fishery. Despite the disapproval of 
the increased observer coverage requirements, there are many other 
measures in the MSB FMP (e.g., annual catch limits (ACLs), 
accountability measures) and implemented in this action (e.g., 
adjustments to the fishery management program and at-sea monitoring, 
measures to address river herring interactions) that meet MSA 
requirements to minimize bycatch and ensure catch accountability.
    In 2013, staff from NMFS and the New England and Mid-Atlantic 
Councils formed a working group to identify a workable, legal mechanism 
to allow for industry-funded observer coverage in the herring and 
mackerel fisheries. To further explore the legal issues surrounding 
industry-funded observer coverage, NMFS formed a separate internal 
working group of Greater Atlantic Regional Fisheries Office, Northeast 
Fisheries Science Center, General Counsel, and Headquarters staff. The 
NMFS working group identified an administrative mechanism to allow for 
industry funding of observer monitoring costs in Northeast fisheries, 
as well as a potential way to help offset funding costs that would be 
borne by the industry, subject to available funding. This 
administrative mechanism would be an option to fund observer coverage 
targets that are higher than SBRM coverage levels. The mechanism to 
allow for industry-funded observer coverage is a potential tool for all 
Northeast FMPs, but it would need to be added to each FMP to make it an 
available tool, should the Council want to use it. Additionally, this 
omnibus amendment could establish the observer coverage targets for 
mackerel vessels using midwater trawl and small-mesh bottom trawl.
    In a September 20, 2013, letter to the Council, NMFS offered to be 
the technical lead on an omnibus amendment to establish the 
administrative mechanism to allow for industry-funded observer coverage 
in New England and Mid-Atlantic FMPs. At its October 2013 meeting, the 
Council considered NMFS's offer and encouraged NMFS to begin 
development of the omnibus amendment. NMFS expects to present a 
preliminary range of alternatives for the

[[Page 10039]]

omnibus amendment to the New England and Mid-Atlantic Councils in early 
2014.
    Comment 9: The Herring Alliance and PEW Environment Group do not 
agree with disapproval of the observer coverage provisions on the 
grounds that the Council failed to identify a funding source for the 
increased observer coverage. They assert that the Council clearly 
identified industry as the funding source.
    Response: NMFS disagrees with the comment that the Council clearly 
identified industry as the funding source. The amendment states that 
the preferred funding option for the increased observer coverage 
requirement is an industry contribution of $325 per sea day. NMFS does 
not believe this description indicates that the industry would be 
responsible for paying the full costs of the Council's proposed 
increased observer coverage requirements, and the analysis of impacts 
in the FEIS fails to examine the effects that paying for observer 
coverage in full would have on vessel owners, operators, and crews. In 
addition, approval and implementation of the Council's preferred 
industry funding option required considerable development that the 
Council deferred to NMFS to be completed, subsequent to Amendment 14 
approval. We communicated the complexities of developing the preferred 
funding option to the Council before the Council's approval, and, given 
the complexities and the incompleteness of the measure, NMFS could not 
approve the amendment in the required timeline.
    There are two types of costs associated with observer coverage: 
Observer monitoring costs, such as observer salary and travel costs, 
and NMFS support and infrastructure costs, such as observer training 
and data processing. Monitoring costs can either be paid by industry or 
paid by NMFS, but they cannot be shared. NMFS support and 
infrastructure costs can only be paid by NMFS. The monitoring costs 
associated with an observer in the mackerel fishery are higher than 
$325 per day. The FEIS for Amendment 14 analyzed the industry paying 
$325 per day, but it did not analyze a range of that would approximate 
the total monitoring costs.
    The amendment does not describe or analyze the industry being 
responsible for paying all observer monitoring costs. Therefore, 
Amendment 14 does not identify a funding source to cover the costs of 
increased observer coverage, and that measure was not sufficiently 
developed to be approved.
    Comment 10: The Herring Alliance and PEW Environment Group disagree 
with NMFS's statement in the proposed rule that there is no legal 
mechanism to allow timely implementation of the Council's preferred 
funding options and point to successful precedents set on the West 
Coast for cost-sharing between NMFS and the industry. The Herring 
Alliance also suggested that NMFS could simply fund the full number of 
observer days the budget can accommodate, and require industry to 
contract with observer service providers to pay in full for the rest.
    Response: In Amendment 14, the increased observer requirements are 
coupled with an industry contribution of $325 per day. The monitoring 
costs associated with an observer in the mackerel fishery are higher 
than $325 per day. The cost-sharing of observer monitoring costs 
between NMFS and the industry violates the Anti-Deficiency Act and the 
Miscellaneous Receipts Act. NMFS may pay all the observer monitoring 
costs (e.g., NEFOP observers) or the industry may pay all the observer 
monitoring costs directly to a third party (e.g., like in the Atlantic 
scallop fishery). However, NMFS and the industry cannot both pay 
towards the same observer monitoring costs. For example, if observer 
monitoring costs are $700 per sea day, NMFS and industry cannot split 
the costs 50/50, or by any other proportion, nor can NMFS accept 
contributions directly from industry to fund observer monitoring costs. 
Therefore, there is no current legal mechanism to allow cost-sharing of 
monitoring costs between NMFS and the industry.
    In the Pacific Groundfish Trawl Program, the industry is required 
to pay all observer monitoring costs directly to a third party. 
However, as a way to transition the industry to paying all observer 
monitoring costs, NMFS is reimbursing the observer service providers a 
percentage of the observer monitoring costs through a time-limited 
grant with Pacific States Marine Fisheries Commission. The level of 
reimbursement is contingent on available NMFS funding, is expected to 
decrease over time, and will end such that eventually the industry will 
be paying all observer monitoring costs. Subject to NMFS funding, this 
grant mechanism may also be a temporary option to reimburse the 
mackerel industry for observer monitoring costs. But this funding 
mechanism is very different than the measure proposed in Amendment 14, 
and NMFS cannot modify the proposed measure to make it consistent with 
the Anti-deficiency Act.
    As described previously, NMFS has offered to be the technical lead 
on an omnibus amendment to establish the administrative mechanism to 
allow for industry-funded observer coverage in New England and Mid-
Atlantic FMPs, and expects to present a preliminary range of 
alternatives for the omnibus amendment to the New England and Mid-
Atlantic Councils in early 2014.
    Comment 11: The Herring Alliance and PEW Environment Group 
expressed their view that, consistent with other government programs, 
vessels should not be allowed to fish if an observer cannot be deployed 
on a trip due to insufficient funding (either industry or NMFS, or 
both).
    Response: Preventing vessels from fishing would be a new policy 
that was clearly not the intent of the Council in the observer measures 
in Amendment 14. Implementing such a provision would have required a 
Council decision and analysis in Amendment 14, or would require future 
Council action.
    Comment 12: Several commenters urged NMFS to approve measures 
prohibiting slippage, requiring a released catch affidavit, and 
slippage caps to improve catch monitoring and reduce wasteful 
discarding. They believe slippage caps, and the subsequent trip 
termination provisions, are critical to the effectiveness of catch 
monitoring and bycatch estimation in the mackerel fishery, are 
consistent with the MSA and other applicable law, and necessary to meet 
requirements to end overfishing, minimize bycatch, and ensure 
accountability. They believe the proposed cap on the number of slippage 
events (i.e., 10 non-exempted slippage events fleetwide) is a carefully 
designed expansion of the regulations in place for Closed Area I for 
herring vessels or the requirement to stop fishing in an area when the 
sub-ACL has been harvested, and that the cap amounts are based on 
existing data and set at levels high enough that allow the fleet to 
avoid trip termination while preventing unlimited slippage.
    Response: NMFS approved measures prohibiting slippage on observed 
mackerel and longfin squid trips and requiring a released catch 
affidavit for slippage events on such trips. NMFS expects that 
prohibiting slippage will help reduce slippage events in the mackerel 
and longfin squid fisheries. NMFS believes this will improve the 
quality of observer catch data, especially data on bycatch species 
encountered in both fisheries. NMFS also expects the released catch 
affidavit to help provide insight into when and why slippage occurs. 
Additionally, NMFS expects that the slippage prohibition will help

[[Page 10040]]

minimize bycatch, and bycatch mortality, to the extent practicable in 
the mackerel and longfin squid fisheries.
    NMFS disapproved the proposed slippage cap on the mackerel fishery, 
and the associated trip termination requirement, because of concerns 
about the details of the slippage cap. Under the proposed measure, once 
a slippage cap had been met, vessels that slip catch would have been 
required to return to port. Vessels could continue fishing following 
slippage events 1 through 10, but would have been required to return to 
port following the 11th slippage event, regardless of the vessel's role 
in the first 10 slippage events. Conversely, vessels responsible for 
slippage events 1 through 10, could have continued fishing after the 
11th slippage event provided they did not slip catch again. NMFS 
believes this aspect of the measure is arbitrary.
    The measures to minimize slippage are based on the sampling 
requirements for midwater trawl vessels fishing in Groundfish Closed 
Area I. However, there are important differences between these 
measures. Under the Closed Area I requirements, midwater trawl vessels 
are allowed to continue fishing if they slip catch, but they must leave 
Closed Area I for the remainder of that trip. The requirement to leave 
Closed Area I is less punitive than the Amendment 14 proposed 
requirement to return to port. Additionally, because the consequences 
of slipping catch apply uniformly to all vessels under the Closed Area 
I requirements, or when a closure becomes effective when the ACL has 
been harvested, inequitable application to the fleet is not an issue 
for the Closed Area I requirements or closure measures, like NMFS 
believes it is for the Amendment 14 proposed slippage caps.
    Even though NMFS disapproved the slippage caps, the prohibition on 
slippage in the mackerel and longfin squid fisheries, the released 
catch affidavit, and the ongoing data collection by NEFOP still provide 
improved monitoring in the mackerel and longfin squid fisheries, 
increased information regarding discards, and an incentive to minimize 
discards of unsampled catch.
    Comment 13: NMFS received comments from the Herring Alliance, PEW 
Environment Group, and Wild Oceans that the analysis in the FEIS 
provides a reasonable basis for capping slippage events at 10 fleet-
wide slippage events. The commenters also disagreed with NMFS's 
statements in the proposed rule that the slippage caps may be punitive 
or unfair. Wild Oceans suggested that, if the controversy is around the 
number of allowed slippage events (i.e., 10 allowed non-exempted 
slippage events before triggering the cap) as opposed to the need to 
minimize slippage, then the trip termination penalty should apply after 
all slippage events.
    Response: The Amendment 14 FEIS notes that, from 2006-2010, 
approximately 26 percent (73 of 277, or 15 per year) of hauls on 
observed mackerel trips (trips that caught 50 percent or more mackerel 
or at least 100,000 lb (45.34 mt) of mackerel) had some unobserved 
catch. Hauls may be unobserved for a variety of reasons--for example, 
transfer of catch to another vessel without an observer, observers not 
being on deck to sample a given haul, or hauls released from the net 
while still in the water. The FEIS discusses that, while documented 
slippage events are relatively infrequent, increases above the 
estimated 15 unobserved hauls per year could compromise observer data 
because ``high-volume fisheries . . . can catch large quantities of 
fish in a single tow.'' NMFS agrees that unobserved hauls can 
compromise observer data, and that limiting the total number of 
slippage events to 10 does reduce slippage events from the recent 
average of 15 unobserved hauls on mackerel trips. However, NMFS does 
not believe the FEIS provides analysis for why it is operationally 
justified to allow the fleet 10 un-exempted slippage events prior to 
triggering the trip termination requirement, as opposed to the 
selection of any other value.
    NMFS disapproved the proposed slippage caps, and the associated 
trip termination requirement, because of concerns with the legality of 
the slippage cap. Once the slippage cap has been met, vessels that slip 
catch would be required to return to port. Vessels may continue fishing 
following slippage events 1 through 10 but must return to port 
following the 11th slippage event, regardless of the vessel's role in 
the first 10 slippage events. Conversely, vessels responsible for 
slippage events 1 through 10, may continue fishing after the 11th 
slippage event provided they do not slip catch again. NMFS believes 
this aspect of the measure is inequitable.
    Throughout the development of Amendment 14, NMFS identified 
potential concerns with the rationale supporting, and legality of, the 
slippage caps. NMFS highlighted its concerns with these aspects of the 
slippage cap in the proposed rule. As described in the response to the 
previous comment, NMFS believes the arbitrary nature of the slippage 
cap, and the potential for inequitable application to the fleet as a 
result of the slippage cap, render the proposed slippage cap 
inconsistent with the MSA and other applicable law. For these reasons, 
NMFS disapproved the proposed slippage cap.
    NMFS agrees with Wild Ocean's recommendation to make the 
consequences of the slippage cap apply after every non-exempted 
slippage event and offered this suggestion to the Council in our 
November 7, 2013, partial approval letter.
    Comment 14: The Herring Alliance and PEW Environment Group assert 
that NMFS stated in the proposed rule that existing procedures in the 
mackerel fishery are adequate to address slippage. They assert that, 
though the NEFOP high-volume fishery procedures have been in place for 
several years, these protocols do not prevent slippage and still allow 
for significant amounts of catch to be discarded prior to sampling by 
NEFOP observers. Wild Oceans asserts that NMFS should clarify, through 
the regulations, the Council's position that slippage is a detrimental 
practice that should be discouraged, and that simply collecting 
information on slippage does not convey this message and does not deter 
its occurrence.
    Response: NMFS did not characterize the high-volume fishery 
procedures as a means to prevent slippage. Rather, NMFS noted that, in 
contrast to the information that would be collected in the proposed 
released catch affidavits, the discard logs documented as part of the 
high-volume fishery observation protocol provide more detailed, 
comprehensive information on discards. However, NMFS notes that there 
is a compliance benefit to requiring a released catch affidavit because 
it would provide information regarding the operator's decisions and may 
help NMFS understand why slippage occurs. NMFS agrees that the high-
volume fishery observation protocol does not prevent slippage, and that 
it only collects information about slippage events. NMFS reflected the 
Council's intent that slippage is a detrimental practice that must be 
discouraged by implementing the slippage prohibitions in the mackerel 
and longfin squid fisheries. NMFS believes that the slippage 
prohibition and the associated released catch affidavit requirement 
should provide a strong incentive to minimize the discarding of 
unsampled catch and provide increased information regarding discards.
    Comment 15: The Herring Alliance and PEW Environment Group assert 
that NMFS documented slippage as a problem that directly affects the 
administration of the butterfish

[[Page 10041]]

mortality cap on the longfin squid fishery, where longfin squid hauls 
have been slipped due to the presence of butterfish.
    Response: NMFS reiterates that the slippage prohibition and 
released catch affidavit are also a requirement for longfin squid 
permit holders, which can help address any issues with the 
administration of the butterfish mortality cap that may have resulted 
from past slippage events.
    Comment 16: Wild Oceans notes that the proposed regulatory 
definition of slippage (Sec.  648.2) does not reflect the description 
of slippage in Amendment 14, which describes transferring of fish to 
another vessel that is not carrying a NMFS-approved observer as a 
slippage event.
    Response: While the fish transfer issue is not described in the 
definition of slippage, it is described in the measures to address 
slippage at at Sec.  648.11(n)(3)(i).
    Comment 17: Commenters support proposed measures requiring limited 
access mackerel and longfin squid vessels to provide observers with: 
(1) Safe sampling stations; (2) reasonable assistance; and (3) 
notification of haulback or pumping.
    Response: NMFS recognizes the commenters support for these measures 
and believes these measures will help improve monitoring in the 
mackerel and longfin squid fisheries. These measures were approved.
    Comment 18: Wild Oceans believes that Amendment 14 should add 
regulatory text to require both vessels involved in pair trawl fishing 
to carry observers.
    Response: NEFOP randomly assigns observers to mackerel vessels 
consistent with SBRM coverage requirements to optimize sampling of the 
mackerel fishery. Because NMFS considered this requirement a directive 
to NEFOP, rather than as a requirement for pair trawl vessels, it is 
unnecessary for NMFS to codify the requirement in the regulations. If 
NEFOP desires to place observers on both vessels in a pair trawl 
operation, it can do so. The Council will be considering increased 
observer coverage requirement for the mackerel fishery in the observer-
funding omnibus amendment. Until then, NEFOP will continue to assign 
observers to mackerel vessels in order to best meet SBRM requirements.

4. Comments on Measures To Address River Herring Interactions

    Comment 19: Several comments express support for establishing catch 
caps for a river herring and shad catch cap on the Atlantic mackerel 
fishery as quickly as possible, and assert that the catch cap is the 
only measure in Amendment 14 that addresses the National Standard 9 
obligation to minimize bycatch to the extent practical. Commenters also 
stated that, while catch caps and occasional closures can be effective 
conservation tools for river herring and shad, without increased 
observer coverage and improved catch monitoring, the caps cannot be 
effectively administered.
    Response: NMFS supports the Council in its efforts to establish the 
river herring and shad catch cap on the mackerel fishery, and is 
currently reviewing the Council's proposed catch cap allocation in 2014 
Specifications and Management Measures for the MSB Fisheries.
    Based on the ASMFC's recent river herring and shad assessments, 
data are not robust enough to determine a biologically-based river 
herring and shad catch cap and/or the potential effects on river 
herring and shad populations of such a catch cap on a coast-wide scale. 
However, both the Council and NMFS believe catch caps would provide a 
strong incentive for the Atlantic mackerel industry to continue 
avoiding river herring and shad and reduce river herring and shad catch 
to the extent practicable.
    NMFS disagrees that the river herring/shad catch caps are the only 
measure in Amendment 14 that will satisfy the MSA's requirement to 
minimize bycatch to the extent practicable. Rather, Amendment 14 
implements several measures to address bycatch in the mackerel and 
longfin squid fisheries: (1) Prohibiting catch from being discarded 
prior to sampling by an at-sea observer (known as slippage), with 
exceptions for safety concerns, mechanical failure, and spiny dogfish 
preventing catch from being pumped aboard the vessel, and requiring a 
released catch affidavit to be completed for each slippage event; (2) 
evaluating the ongoing bycatch avoidance program investigation of 
providing real-time, cost-effective information on river herring 
distribution and fishery encounters; and (3) expanding and adding 
reporting and sampling requirements designed to improve data collection 
methods, data sources, and applications of data to better determine the 
amount, type, disposition of bycatch. NMFS believes these measures 
provide incentives for bycatch avoidance and gather more information 
that may provide a basis for future bycatch avoidance or bycatch 
mortality reduction measures. These measures are supported by 
sufficient analysis and consideration of the best available scientific 
information and the MSA National Standards and represent the most 
practicable bycatch measures for the MSB FMP based on this information 
at this time.
    Finally, while increases to observer coverage may improve the 
quality of data used to determine the rate of river herring and shad 
bycatch in the mackerel fishery, NMFS disagrees that the river herring 
and shad catch cap cannot be administered without the three measures 
disapproved in Amendment 14. The pre-trip notification requirement for 
the mackerel fishery that will be implemented through this action will 
help with the identification of directed mackerel trips and the 
placement of observers on those trips. The expansion of sampling 
requirements and the slippage prohibition should help improve data 
collection on observed trips. Last, as noted in the preamble, we are 
considering ways for industry-funded observer coverage to help reach 
the Council's desired coverage increases.
    Comment 20: The Herring Alliance, PEW Environment Group, Wild 
Oceans, Oceana, and the NRDC urged disapproval of the voluntary program 
investigating river herring distribution and fishery encounters because 
they believe as a voluntary program it has no place in a regulatory 
action and will not satisfy the MSA's requirement to minimize bycatch 
to the extent practicable. They assert that this program should not be 
a substitute for a meaningful catch cap.
    Response: While the voluntary program for river herring monitoring 
and avoidance does not include regulatory requirements, we believe the 
program, along with the Council's formal evaluation of the program, has 
the potential to help vessels avoid river herring during the fishing 
season and gather information that may help predict and prevent future 
interactions. The regulations approved in Amendment 14 allow the 
Council to complete a framework adjustment to codify certain aspects of 
this important research to help reduce river herring and shad 
interactions in the mackerel fishery. This could involve adjustments to 
fleet tracking mechanisms, the use of test tows to determine the extent 
of incidental catch, thresholds of river herring and shad catch that 
would require a vessel to move out of a given fishing area, and lengths 
of time that vessels would need to move out of the area to allow river 
herring and shad aggregations to migrate. Allowing for the future 
consideration of this program is not a substitute for the river herring 
and shad catch cap in the mackerel fishery.

[[Page 10042]]

Instead, NMFS hopes for the avoidance program and the catch cap to work 
in concert. The overall catch cap on river herring and shad should 
offer incentive for industry to engage in avoiding the incidental 
catch.

Changes From the Proposed Rule

    The proposed rule for Amendment 14 contained all the measures in 
the amendment that were adopted by the Council in June 2012. As 
described previously, the proposed rule highlighted NMFS's utility and 
legal concerns about three measures adopted by the Council. Because the 
increased observer coverage measure, coupled with a $325 per day 
industry contribution, slippage cap, and dealer reporting requirements, 
were ultimately disapproved by NMFS, the regulatory requirements 
associated with those three measures are not included in this final 
rule. Specifically, the following proposed regulations are not being 
implemented: Sec.  648.7(a)(1)(iv), Sec.  648.11(h), Sec.  
648.11(i)(3)(ii), Sec.  648.11(m)(4), Sec.  648.14(g)(2)(viii), Sec.  
648.22(b)(4)(ii), Sec.  648.22(b)(4)(iv), and Sec.  648.24(b)(7). 
Sections 648.10 and 648.22 differ slightly in structure, but not 
content, from the regulations in the proposed rule.

Classification

    The Administrator, Greater Atlantic Regional Fisheries Office, 
NMFS, determined that the approved measures in Amendment 14 to the MSB 
FMP are necessary for the conservation and management of the MSB 
fisheries and that they are consistent with the MSA and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared a FEIS for Amendment 14. A notice of 
availability for the FEIS was published on August 16, 2013 (78 FR 
50054). The FEIS describes the impacts of the proposed measures on the 
environment. Revisions to fishery management program measures, 
including vessel reporting requirements and trip notification, are 
expected to improve catch monitoring in the MSB fisheries, with 
positive biological impacts to the MSB fisheries and minimal negative 
economic impacts on human communities. Measures to improve at-sea 
sampling by observers, and measures to minimize discarding of catch 
before it has been sampled by observers are also expected to improve 
catch monitoring and have positive biological impacts on the MSB 
fisheries. The economic impacts of these proposed measures on human 
communities are varied, but negative economic impacts may be 
substantial compared to the status quo. Measures to address bycatch are 
expected to have positive biological impacts and moderate negative 
economic impacts on fishery participants. Lastly, all measures are 
expected to have positive biological impacts on non-target species and 
neutral impacts on habitat. In partially approving Amendment 14 on 
November 7, 2013, NMFS issued a record of decision (ROD) identifying 
the selected alternatives. A copy of the ROD is available from NMFS 
(see ADDRESSES).
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by public comments in response 
to the IRFA, NMFS's responses to those comments, and a summary of the 
analyses to support this action. A copy of this analysis is available 
from the Council or NMFS (see ADDRESSES) or via the Internet at http://www.nero.noaa.gov.

Statement of Need

    This action helps improve monitoring of the MSB fisheries with a 
focus on better evaluation of the incidental catch of river herring and 
shad, and addresses river herring and shad bycatch issues in the 
mackerel fishery. A description of the action, why it was considered, 
and the legal authority for the action is contained elsewhere in this 
preamble and is not repeated here.

A 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 15 comment letters during the comment periods on the 
NOA and proposed rule. Those comments, and NMFS's responses, are 
contained elsewhere in this preamble and are not repeated here. None of 
the comments are relevant to the analysis of economic impacts on 
regulated entities.

Description and Estimate of Number of Small Entities to Which the 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. NMFS has reviewed the analyses prepared for 
this action in light of the new size standards. Under the former, lower 
size standards, all entities subject to this action were considered 
small entities; thus, they all would continue to be considered small 
under the new standards. NMFS has determined that the new size 
standards do not affect the analyses prepared for this action.
    The Office of Advocacy at the SBA suggests two criteria to consider 
in determining the significance of regulatory impacts: 
Disproportionality and profitability. The disproportionality criterion 
compares the effects of the regulatory action on small versus large 
entities (using the SBA-approved size definition of ``small entity''), 
not the difference between segments of small entities. The changes in 
profits, costs, and net revenues due to Amendment 14 are not expected 
to be disproportional for small versus large entities, as the proposed 
action will affect all entities, large and small, in a similar manner. 
Therefore, this action is not expected to have disproportionate impacts 
or place a substantial number of small entities at a competitive 
disadvantage relative to large entities.
    The measures in Amendment 14 could affect any vessel holding an 
active Federal permit to fish for Atlantic mackerel, longfin squid, 
Illex squid, or butterfish. All of the potentially affected businesses 
are considered small entities under the standards described in NMFS 
guidelines, because they have gross receipts that do not exceed $19 
million annually. In 2012, 1,835 commercial vessels possessed Atlantic 
mackerel permits (132 limited access permits and 1,703 open access 
permits), 329 vessels possessed longfin squid/butterfish moratorium 
permits, 72 vessels possessed Illex permits, 1,578 vessels possessed 
incidental squid/butterfish permits, and 705 vessels possessed squid/
mackerel/butterfish party/charter permits. Many vessels participate in 
more than one of these fisheries; therefore, permit numbers are not 
additive.
    Available data indicate that no single fishing entity earned more 
than $19 million annually. Having different size standards for 
different types of marine fishing activities creates difficulties in 
categorizing businesses that participate in more than one of these 
activities. For now, the short-term approach is to classify a business 
entity into the SBA-defined categories based on which activity produced 
the highest gross revenue. In this case, Atlantic mackerel is the only 
species with significant recreational fishing, and in 2012, the 
charterboat industry harvested only 10,000 lb (4.54 mt). Based on these

[[Page 10043]]

assumptions, the finfish size standard would apply and the business is 
considered large, only if revenues are greater than $19 million. No MSB 
vessels total $19 million in revenues from MSB fishing, but some do 
have income from other fishing activity. However, it is unlikely that 
the value exceeds that threshold. Although there are likely to be 
entities that, based on rules of affiliation, would qualify as large 
business entities, due to lack of reliable ownership affiliation data 
NMFS cannot apply the business size standard at this time. NMFS is 
currently compiling data on vessel ownership that should permit a more 
refined assessment and determination of the number of large and small 
entities for future actions. For this action, since available data are 
not adequate to identify affiliated vessels, each operating unit is 
considered a small entity for purposes of the RFA, and, therefore, 
there is no differential impact between small and large entities. 
Therefore, there are no disproportionate economic impacts on small 
entities. Section 6.7 in Amendment 14 describes the vessels, key ports, 
and revenue information for the MSB fisheries; therefore, that 
information is not repeated here.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements Minimizing Significant Economic Impacts on Small Entities

    This final rule contains collection-of-information requirements 
subject to the PRA and that have been approved by Office of Management 
and Budget (OMB) under control number 0648-0679. The new requirements, 
which are described in detail elsewhere in this preamble, were approved 
as a new collection.
    Amendment 14 increases VTR reporting submission frequency for all 
MSB permit holders from monthly to weekly. MSB permit holders currently 
submit 12 VTRs per year, so the additional cost of submitting VTRs on a 
weekly basis is $18. This cost was calculated by multiplying 40 (52 
weeks in a year minus 12 (number of monthly reports)) by $0.46 to equal 
$18. The VTR is estimated to take 5 min to complete. Therefore the 
total annual burden estimate of weekly VTRs is $18, and 3 hr and 20 
min.
    This action requires limited access mackerel and longfin squid/
butterfish moratorium permit holders purchase and maintain a VMS. 
Because other Northeast permits require vessels to maintain a VMS, it 
is estimated that only 80 vessels do not already have a VMS. The 
average cost of purchasing and installing a VMS is $3,400, the VMS 
certification form takes an estimated 5 min to complete and costs $0.46 
to mail, and the call to confirm a VMS unit takes an estimated 5 min to 
complete and costs $1. The average cost of maintaining a VMS is $600 
per year. Northeast fisheries regulations require VMS activity 
declarations and automated polling of VMS units to collect position 
data. Each activity declaration takes an estimated 5 min to complete 
and costs $0.50 to transmit. If a longfin squid/butterfish moratorium 
permit holder takes 22 trips per year, the burden estimate for activity 
declarations would be 1 hr and 50 min, and $11. If a limited access 
mackerel permit holder takes 8 trips per year, the burden estimate for 
activity declarations would be 40 min and $4. Each automated polling 
transmission costs $0.06, and a vessel is polled once per hour every 
day of the year. The annual estimated cost associated with polling is 
$526. Vessels may request a power-down exemption to stop position 
transmission under certain provisions, as described elsewhere in this 
preamble. The form to request a power-down exemption letter takes 5 min 
to complete, and costs $0.46 to mail. If each vessel submits a power-
down exemption request 2 times a year, the total estimated burden is 10 
min and $1. In summary, the total annual burden estimate for a vessel 
to purchase and maintain a VMS would be 2 hr 10 min and $4,540 for a 
longfin squid/butterfish moratorium permit holder, and 1 hr and $4,533 
for a limited access mackerel permit holder.
    Amendment 14 requires that limited access mackerel and longfin 
squid/butterfish moratorium permit holders submit daily VMS reports. 
The cost of transmitting a catch report via VMS is $0.60 per 
transmission, and it is estimated to take 5 min to complete. If a 
longfin squid/butterfish moratorium permit holder takes 22 trips per 
year, and each trip lasts an average of 2 days, the burden estimate for 
activity declarations would be 1 hr and 50 min, and $14. If a limited 
access mackerel permit holder takes 8 trips per year, and each trip 
lasts an average of 3 days, the burden estimate for activity 
declarations would be 40 min, and $5.
    This action requires limited access mackerel vessels to submit a 
pre-landing notification to NMFS OLE via VMS 6 hr prior to landing. 
Each VMS pre-landing notification is estimated to take 5 min to 
complete and cost $1. Limited access mackerel permit holders are 
estimated to take 8 trips per year, so the total annual burden estimate 
is 40 min, and $8.
    Amendment 14 increases the reporting burden for measures designed 
to improve at-sea sampling by NMFS-approved observers. Limited access 
mackerel vessels would be required to notify NMFS to request an 
observer at least 48 hr prior to beginning a trip where they intend to 
land over 20,000 lb (9.07 mt) of mackerel. The phone call is estimated 
to take 5 min to complete and is free. If a vessel has already 
contacted NMFS to request an observer and then decides to cancel that 
fishing trip, Amendment 14 would require that vessel to notify NMFS of 
the trip cancellation. The call to notify NMFS of a cancelled trip is 
estimated to take 1 min and is free. If a vessel takes an estimated 8 
trips per year, the total annual reporting burden associated with pre-
trip observer notification would be 40 min.
    Amendment 14 requires a released catch affidavit for limited access 
mackerel and longfin squid/butterfish moratorium permit holders that 
discard catch before it had been made available to an observer for 
sampling (slipped catch). The reporting burden for completion of the 
released catch affidavit is estimated to average 5 min. The cost 
associated with the affidavit is the postage to mail the form to NMFS 
($0.46). The affidavit requirement would affect an estimated 312 
longfin squid/butterfish moratorium permit holders, and 132 limited 
access mackerel permit holders. If the longfin squid/butterfish 
moratorium permit holders slipped catch once per trip with an observer 
aboard, and took an estimated 22 trips per year, the total annual 
reporting burden for the released catch affidavit would be 1 hr 50 min, 
and $10. If the limited access mackerel permit holders slipped catch 
once per trip with an observer aboard, and took an estimated 8 trips 
per year, the total annual reporting burden for the released catch 
affidavit would be 40 min, and $4.
    Public comment is sought regarding: Whether this collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection of information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to the Regional Administrator (see 
ADDRESSES), and email to OIRA_Submission@omb.eop.gov or fax to 202-
395-7285.

[[Page 10044]]

    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

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

1. Adjustments to the Fishery Management Program
    Amendment 14 revises several existing fishery management 
provisions, including VTR and VMS requirements, to better administer 
the MSB fisheries. Amendment 14 requires all MSB permit holders to 
submit VTRs on a weekly basis (Alternative 1c in the FEIS). The no 
action (alternative 1a) would have maintained monthly reporting 
requirements for all MSB permit holders, and two additional 
alternatives would have instituted weekly reporting for just mackerel 
permit holders (alternative 1bMack) or longfin squid/butterfish permit 
holders (alternative 1bLong). Weekly VTRs would cost an additional $18 
per year compared to status quo, but many permit holders already submit 
weekly VTRs related to other Northeast permits. Compared to the non-
selected alternatives, which would have maintained the monthly VTR 
reporting requirement, or only extended the weekly reporting 
requirement to some of the permit categories in this FMP, extending the 
requirement for weekly VTR reporting to all MSB permit holders improves 
data for quota monitoring, and brings VTR requirements in line with 
those for other Northeast permits.
    This action requires VMS for limited access mackerel and longfin 
squid/butterfish moratorium permit holders (alternatives 1eMack and 
1eLong), requires trip declarations and daily VMS catch reports for 
these permit holders (alternatives 1fMack and 1fLong), and requires a 
pre-landing notifications via VMS in order to land more than 20,000 lb 
(9.07 mt) of mackerel (alternative 1gMack). The no action alternative 
(alternative 1a) would not impose VMS requirements for these permit 
holders, and was rejected because the Council intends to use VMS as a 
compliance and enforcement tool for area-based management measures 
currently under consideration. As with the VTR requirements, many 
limited access mackerel and longfin squid/butterfish moratorium permit 
holders already have VMS related to other Northeast permits. For permit 
holders obtaining a new VMS, the new VMS requirements would cost 
roughly $4,500 for the first year of operation. The FEIS for Amendment 
14 discussed that the economic impacts of these reporting requirements 
is mixed compared to status quo. While short-term operating costs for 
these fishing vessels is increased compared to status quo, these 
measures may have long-term positive impacts if they result in less 
uncertainty and, ultimately, additional harvest being made available to 
MSB fishery participants. Economic impacts on small entities resulting 
from the purchase costs of new VMS units have been minimized through a 
VMS reimbursement program (May 6, 2008; 73 FR 24955) that made grant 
funds available for vessel owners and/or operators who have purchased a 
VMS unit for the purpose of complying with fishery regulations. 
Reimbursement for VMS units is available on a first come, first serve, 
basis until funds are depleted. More information on the VMS 
reimbursement program is available from the Pacific States Marine 
Fisheries Commission (see ADDRESSES) and from the NMFS VMS Support 
Center, which can be reached at 888-219-9228.
    Amendment 14 proposed requiring that MSB dealers weigh all landings 
related to mackerel transactions over 20,000 lb (9.07 mt) (alternative 
2d), and all longfin squid transactions over 2,500 lb (1.13 mt) 
(alternative 2f), and if these transactions were not sorted by species, 
would be required to document, with each transaction, how they 
estimated the relative composition of catch. Dealers would be permitted 
to use volume-to-weight conversions if they were not able to weigh 
landings (alternative 2g). However, NMFS disapproved the proposed 
measure, so this action maintains the no action alternative. Dealers 
currently report the weight of fish, obtained by scale weights and/or 
volumetric estimates. Because the proposed action does not specify how 
fish are to be weighed, the proposed action is not anticipated to 
change dealer behavior, and, therefore, is expected to have neutral 
impacts in comparison to the no action alternative. Amendment 14 
considered four alternatives to the proposed action: The no action 
alternative; and alternatives 2b, 2c and 2e. Alternative 2b would 
require that a vessel confirm MSB dealer reports for mackerel landings 
over 20,000 lb (9.07 mt), Illex squid landings over 10,000 lb (4.53 
mt), and longfin squid landings over 2,500 lb (1.13 mt). Alternatives 
2c and 2e are similar to the proposed alternative in that they would 
require dealers to weigh all landings related to mackerel transactions 
over 20,000 lb (9.07 mt) (alternative 2c), and all longfin squid 
transactions over 2,500 lb (1.13 mt) (alternative 2e), but would have 
required that relative species composition be documented annually 
instead of at each transaction. Overall, relative to the no action 
alternative, the proposed action and Alternatives 2c and 2e may have 
low negative impacts on dealers due to the regulatory burden of 
documenting how species composition is estimated. In comparison, 
Alternative 2b may have a low positive impact on fishery participants, 
despite an increased regulatory burden, if it minimizes any lost 
revenue due to data errors in the dealer reports and/or the tracking of 
MSB catch.
2. Adjustments to the At-Sea Catch Monitoring
    Amendment 14 requires a 48-hr pre-trip notification for all vessels 
intending to retain, possess or transfer 20,000 lb (9.07 mt) or more of 
Atlantic mackerel in order to facilitate observer placement 
(alternative 1d48). In addition to the no action alternative 
(alternative 1a), Amendment 14 also considered requiring a 72-hr pre-
trip notification requirement (alternative 1d72). Compared to the no 
action alternative, both action alternatives may mean that fishermen 
are not able to embark on fishing trips on short notice, especially if 
they are selected to take an observer. The selected alternative would, 
however, improve observer placement compared to the no action 
alternative; the no action alternative was rejected for this reason. 
The 72-hr pre-trip notification requirement (alternative 1d72), is 
inconsistent in timing with 48-hr pre-trip notification requirements 
for other fisheries in the Northeast. In addition, the 72-hr 
requirement is even more likely than the selected 48-hr requirement to 
prevent vessels from departing quickly to target fleeting aggregations 
of mackerel.
    Amendment 14 proposed increases in the observer coverage in the 
mackerel fishery, specifically 100-percent observer coverage on all 
(Tiers 1, 2, and 3) midwater mackerel trawl vessels (alternative 5b4) 
and Tier 1 small-mesh bottom trawl mackerel vessels, 50-percent 
coverage on Tier 2 small-mesh

[[Page 10045]]

bottom trawl mackerel vessels, and 25-percent on Tier 3 small-mesh 
bottom trawl mackerel vessels (alternative 5c4), with an industry 
contribution of $325 per day (alternative 5f). However, the proposed 
measure was disapproved, so this action maintains the no action 
alternative. Amendment 14 considered four alternatives to the proposed 
coverage level recommendations: The no action alternative (alternative 
5a); 25-percent (alternative 5b1), 50-percent (alternative 5b2), and 
75-percent (alternative 5b3) coverage levels for all (Tiers 1, 2 and 3) 
mid-water trawl mackerel vessels; 25-percent (alternative 5c1), 50-
percent (alternative 5c2), and 75-percent (alternative 5c3) coverage 
levels for all (Tiers 1, 2 and 3) small-mesh bottom trawl mackerel 
vessels; and coverage levels necessary to achieve target coefficients 
of variation for river herring bycatch using midwater trawl gear 
(alternatives 5e1 and 5e2) and small-mesh bottom trawl gear (5e3 and 
5e4). Additionally, Amendment 14 considered a phased-in industry 
funding option (5g) that would shift the cost of the at-sea portion of 
observer coverage from NMFS to the industry over a 4-yr period. The 
specific coverage levels under the no action alternative and the 5e 
alternatives are unknown at this time, because they would depend on an 
analysis of fishery data from previous years, but coverage levels under 
these alternatives are expected to be less than 100 percent. Compared 
to the no action alternative, the proposed $325 contribution per day 
would increase daily trip costs by 9 percent for single midwater trawl 
mackerel vessels, 12 percent for paired midwater trawl mackerel 
vessels, and 20 percent for small-mesh bottom trawl vessels. In 
general, higher coverage levels, which would result in higher increases 
in daily costs for fishery participants, would have a negative economic 
impact on fishery participants, potentially resulting in less effort 
and lower catch. In the long-term, increased monitoring and improved 
data collections for the mackerel fishery may translate to improved 
management of the mackerel fishery that would benefit fishery-related 
businesses and communities.
    Amendment 14 requires limited access mackerel and longfin squid/
butterfish moratorium permit holders to bring all catch aboard the 
vessel and make it available for sampling by an observer (alternative 
3j). If catch was slipped before it was sampled by an observer, it 
would count against a slippage cap and require a released catch 
affidavit to be completed. Amendment 14 proposed that, if the slippage 
cap was reached, a vessel would be required to return to port 
immediately following any additional slippage events (alternative 3l). 
However, the proposed slippage cap was disapproved and, instead, this 
action only implements the slippage prohibition and released catch 
affidavit. Amendment 14 considered the no action alternative, and nine 
other alternatives to the proposed action. The no action alternative 
would not establish slippage prohibitions, released catch affidavit 
requirements, the slippage cap, or trip termination requirements, and 
was rejected because it was not expected to improve information on 
catch in the mackerel or longfin squid fisheries or reduce the 
discarding of catch in these fisheries before it has been sampled. The 
other non-selected alternatives include various elements of the 
proposed action. The requirement for mackerel and longfin squid permit 
holders to complete a released catch affidavit (alternative 3e), a 
requirement to prohibit mackerel (alternative 3f) and longfin squid 
(alternative 3g) permit holders from releasing discards before they are 
bought aboard for sampling were rejected because these requirements 
were already included in the selected alternative (alternative 3j). 
Alternatives that included trip termination, including trip 
terminations requirements after 1 (alternative 3h), 2 (alternative 3i), 
5 (alternative 3k), or 10 (alternative 3n) fleet-wide slipped hauls on 
mackerel or longfin squid vessels carrying observers, individual 
slippage caps resulting in trip termination (alternative 3p), and a 
requirement that vessels that terminate a trip would have to take 
observers on the immediate subsequent trip (alternative 3o), are 
structures similarly to the proposed trip termination requirement that 
was disapproved.
    Negative impacts associated with all of these alternatives include 
increased time spent pumping fish aboard the vessel to be sampled by an 
observer, potential decrease in vessel safety during poor operating 
conditions, and the administrative burden of completing a released 
catch affidavit. The penalties associated with slippage vary slightly 
across the alternatives. The overall impacts of the options that 
propose trip termination (proposed action) are negative in comparison 
to the no action alternative. Costs associated with mackerel and 
longfin squid fishing trips are high, particularly with the current 
cost of fuel. Trips terminated prematurely could result in unprofitable 
trips, leaving not only the owners with debt, but crewmembers without 
income, and negative impacts on fishery-related businesses and 
communities. Alternatives 3e and 3j may improve information on catch in 
the mackerel and longfin squid fisheries by requiring vessels operators 
to document when and why slippage occurs. Alternatives 3f, 3g, and 3j 
may improve information by prohibiting catch from being discarded 
before it was sampled by an observer.
3. Measures To Address River Herring Interactions
    Amendment 14 establishes catch caps for river herring (alternative 
6b) and shad (alternative 6c) in the mackerel fishery. Two 
alternatives, the proposed action and the no action, were considered. 
Compared to the no action alternative, the action alternatives have the 
possibility of resulting in a closure of the directed mackerel fishery 
before the mackerel quota is reached. This could result in revenue 
losses as high as $15 million based on 2010 ex-vessel prices, depending 
on how early the fishery is closed. While there is no direct linkage 
between river herring and shad catch and stock status, a closure that 
results from a catch cap in the mackerel fishery could limit the 
fisheries mortality on these stocks, and was the reason why the no 
action alternative was rejected.
    The selected action also includes support for the existing river 
herring bycatch avoidance program involving SFC, MA DMF, and SMAST. 
This voluntary program seeks to reduce river herring bycatch with real-
time information on river herring distribution and mackerel fishery 
encounters. This aspect of the selected action has the potential to 
mitigate some of the negative impacts of the proposed action by 
developing river herring bycatch avoidance measures in cooperation with 
the fishing industry.

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

[[Page 10046]]

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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: February 18, 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

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.  648.2, the definition of ``Slippage in the Atlantic 
mackerel and longfin squid fisheries'' is added in alphabetical order 
to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Slippage in the Atlantic mackerel and longfin squid fisheries means 
catch that is discarded prior to being brought aboard a vessel issued 
an Atlantic mackerel or longfin squid permit and/or prior to making the 
catch available for sampling and inspection by a NMFS-approved 
observer. Slippage includes catch released from a codend or seine prior 
to the completion of pumping catch aboard and catch released from a 
codend or seine while the codend or seine is in the water. Fish that 
cannot be pumped and that remain in the net at the end of pumping 
operations are not considered slippage. Discards that occur at sea 
after the catch is brought on board and sorted are also not considered 
slippage.
* * * * *

0
3. In Sec.  648.7, paragraphs (b)(3)(ii) and (b)(3)(iii) are added, and 
paragraph (f)(2)(i) is revised to read as follows:


Sec.  648.7  Recordkeeping and reporting requirements.

* * * * *
    (b) * * *
    (3) * * *
    (ii) Atlantic mackerel owners or operators. The owner or operator 
of a vessel issued a limited access mackerel permit must report catch 
(retained and discarded) of mackerel daily via VMS, unless exempted by 
the Regional Administrator. The report must include at least the 
following information, and any other information required by the 
Regional Administrator: Fishing Vessel Trip Report serial number; 
month, day, and year mackerel was caught; total pounds of mackerel 
retained and total pounds of all fish retained. Daily mackerel VMS 
catch reports must be submitted in 24-hr intervals for each day and 
must be submitted by 0900 hr on the following day. Reports are required 
even if mackerel caught that day have not yet been landed. This report 
does not exempt the owner or operator from other applicable reporting 
requirements of this section.
    (iii) Longfin squid/butterfish moratorium permit owners or 
operators. The owner or operator of a vessel issued a longfin squid/
butterfish moratorium permit must report catch (retained and discarded) 
of longfin squid daily via VMS, unless exempted by the Regional 
Administrator. The report must include at least the following 
information, and any other information required by the Regional 
Administrator: Fishing Vessel Trip Report serial number; month, day, 
and year longfin squid was caught; total pounds longfin squid retained 
and total pounds of all fish retained. Daily longfin squid VMS catch 
reports must be submitted in 24-hr intervals for each day and must be 
submitted by 0900 hr on the following day. Reports are required even if 
longfin squid caught that day have not yet been landed. This report 
does not exempt the owner or operator from other applicable reporting 
requirements of this section.
* * * * *
    (f) * * *
    (2) * * *
    (i) For any vessel not issued a NE multispecies; Atlantic herring 
permit; or any Atlantic mackerel, longfin squid, Illex squid, or 
butterfish permit; fishing vessel log reports, required by paragraph 
(b)(1)(i) of this section, must be postmarked or received by NMFS 
within 15 days after the end of the reporting month. If such a vessel 
makes no fishing trip during a particular month, a report stating so 
must be submitted, as instructed by the Regional Administrator. For any 
vessel issued a NE multispecies permit; Atlantic herring permit; or any 
Atlantic mackerel, longfin squid, Illex squid, or butterfish permit; 
fishing vessel log reports must be postmarked or received by midnight 
of the first Tuesday following the end of the reporting week. If such a 
vessel makes no fishing trip during a reporting week, a report stating 
so must be submitted and received by NMFS by midnight of the first 
Tuesday following the end of the reporting week, as instructed by the 
Regional Administrator. For the purposes of this paragraph (f)(2)(i), 
the date when fish are offloaded will establish the reporting week or 
month the VTR must be submitted to NMFS, as appropriate. Any fishing 
activity during a particular reporting week (i.e., starting a trip, 
landing, or offloading catch) will constitute fishing during that 
reporting week and will eliminate the need to submit a negative fishing 
report to NMFS for that reporting week. For example, if a vessel issued 
a NE multispecies permit; Atlantic herring permit; or Atlantic 
mackerel, longfin squid, Illex squid or butterfish permit; begins a 
fishing trip on Wednesday, but returns to port and offloads its catch 
on the following Thursday (i.e., after a trip lasting 8 days), the VTR 
for the fishing trip would need to be submitted by midnight Tuesday of 
the third week, but a negative report (i.e., a ``did not fish'' report) 
would not be required for either earlier week.
* * * * *

0
4. In Sec.  648.10, paragraphs (b)(9), (b)(10), (n), and (o) are added 
to read as follows:


Sec.  648.10  VMS and DAS requirements for vessel owners/operators.

* * * * *
    (b) * * *
    (9) Vessels issued a Tier 1, Tier 2, or Tier 3 limited access 
Atlantic mackerel permit; or
    (10) Vessels issued a longfin squid/butterfish moratorium permit.
* * * * *
    (n) Limited access Atlantic mackerel VMS notification requirements. 
(1) A vessel issued a limited access Atlantic mackerel permit intending 
to declare into the mackerel fishery must notify NMFS by declaring a 
mackerel trip prior to leaving port at the start of each trip in order 
to harvest, possess, or land mackerel on that trip.
    (2) A vessel issued a limited access Atlantic mackerel permit 
intending to land more than 20,000 lb (9.07 mt) of mackerel must notify 
NMFS of the time and place of offloading at least 6 hr prior prior to 
arrival, or, if fishing ends less than 6 hours before arrival, 
immediately upon leaving the fishing grounds. The Regional 
Administrator may adjust the prior notification minimum time through 
publication in the Federal Register consistent with the Administrative 
Procedure Act.
    (o) Longfin squid/butterfish VMS notification requirements. A 
vessel issued a longfin squid/butterfish moratorium permit intending to 
declare into the longfin squid fishery must notify NMFS by declaring a 
longfin

[[Page 10047]]

squid trip prior to leaving port at the start of each trip in order to 
harvest, possess, or land longfin squid on that trip.

0
5. In Sec.  648.11, paragraph (n) is added to read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (n) Atlantic mackerel, squid, and butterfish observer coverage--(1) 
Pre-trip notification. (i) A vessel issued a limited access Atlantic 
mackerel permit or longfin squid/butterfish moratorium permit, as 
specified at Sec.  648.4(a)(5)(i), must, for the purposes of observer 
deployment, have a representative provide notice to NMFS of the vessel 
name, vessel permit number, contact name for coordination of observer 
deployment, telephone number or email address for contact; and the 
date, time, port of departure, gear type (for mackerel trips), and 
approximate trip duration, at least 48 hr, but no more than 10 days, 
prior to beginning any fishing trip, unless it complies with the 
possession restrictions in paragraph (n)(1)(iii) of this section.
    (ii) A vessel that has a representative provide notification to 
NMFS as described in paragraph (i) of this section may only embark on a 
mackerel or longfin squid trip without an observer if a vessel 
representative has been notified by NMFS that the vessel has received a 
waiver of the observer requirement for that trip. NMFS shall notify a 
vessel representative whether the vessel must carry an observer, or if 
a waiver has been granted, for the specified mackerel or longfin squid 
trip, within 24 hr of the vessel representative's notification of the 
prospective mackerel or longfin squid trip, as specified in paragraph 
(i) of this section. Any request to carry an observer may be waived by 
NMFS. A vessel that fishes with an observer waiver confirmation number 
that does not match the mackerel or longfin squid trip plan that was 
called in to NMFS is prohibited from fishing for, possessing, 
harvesting, or landing mackerel or longfin squid except as specified in 
paragraph (iii) of this section. Confirmation numbers for trip 
notification calls are only valid for 48 hr from the intended sail 
date.
    (iii) Trip limits. (A) A vessel issued a longfin squid and 
butterfish moratorium permit, as specified in Sec.  648.4(a)(5)(i), 
that does not have a representative provide the trip notification 
required in paragraph (a) of this section is prohibited from fishing 
for, possessing, harvesting, or landing more than 2,500 lb (1.13 mt) of 
longfin squid per trip at any time, and may only land longfin squid 
once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours.
    (B) A vessel issued a limited access mackerel permit, as specified 
in Sec.  648.4(a)(5)(i), that does not have a representative provide 
the trip notification required in paragraph (i) of this section is 
prohibited from fishing for, possessing, harvesting, or landing more 
than 20,000 lb (9.07 mt) of mackerel per trip at any time, and may only 
land mackerel once on any calendar day, which is defined as the 24-hr 
period beginning at 0001 hours and ending at 2400 hours.
    (iv) If a vessel issued a longfin squid and butterfish moratorium 
permit, as specified in Sec.  648.4(a)(5)(i), intends to possess, 
harvest, or land more than 2,500 lb (1.13 mt) of longfin squid per trip 
or per calendar day, or a vessel issued a limited access Atlantic 
mackerel permit, as specified in Sec.  648.4(a)(5)(i), intends to 
possess, harvest, or land more than 20,000 lb (9.07 mt) of mackerel per 
trip or per calendar day, and has a representative notify NMFS of an 
upcoming trip, is selected by NMFS to carry an observer, and then 
cancels that trip, the representative is required to provide notice to 
NMFS of the vessel name, vessel permit number, contact name for 
coordination of observer deployment, and telephone number or email 
address for contact, and the intended date, time, and port of departure 
for the cancelled trip prior to the planned departure time. In 
addition, if a trip selected for observer coverage is cancelled, then 
that vessel is required to carry an observer, provided an observer is 
available, on its next trip.
    (2) Sampling requirements for limited access Atlantic mackerel and 
longfin squid/butterfish moratorium permit holders. In addition to the 
requirements in paragraphs (d)(1) through (7) of this section, an owner 
or operator of a vessel issued a limited access Atlantic mackerel or 
longfin squid/butterfish moratorium permit on which a NMFS-approved 
observer is embarked must provide observers:
    (i) A safe sampling station adjacent to the fish deck, including: A 
safety harness, if footing is compromised and grating systems are high 
above the deck; a safe method to obtain samples; and a storage space 
for baskets and sampling gear.
    (ii) Reasonable assistance to enable observers to carry out their 
duties, including but not limited to assistance with: Obtaining and 
sorting samples; measuring decks, codends, and holding bins; collecting 
bycatch when requested by the observers; and collecting and carrying 
baskets of fish when requested by the observers.
    (iii) Advance notice when pumping will be starting; when sampling 
of the catch may begin; and when pumping is coming to an end.
    (3) Measures to address slippage. (i) No vessel issued a limited 
access Atlantic mackerel permit or a longfin squid/butterfish 
moratorium permit and carrying a NMFS-approved observer may release 
fish from the net, transfer fish to another vessel that is not carrying 
a NMFS-approved observer, or otherwise discard fish at sea, unless the 
fish has first been brought on board the vessel and made available for 
sampling and inspection by the observer, except in the following 
circumstances:
    (A) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (B) A mechanical failure precludes bringing some or all of the 
catch on board the vessel for sampling and inspection; or
    (C) The vessel operator determines that pumping becomes impossible 
as a result of spiny dogfish clogging the pump intake. The vessel 
operator shall take reasonable measures, such as strapping and 
splitting the net, to remove all fish that can be pumped from the net 
prior to release.
    (ii) If fish are released prior to being brought on board the 
vessel, including catch released due to any of the exceptions in 
paragraphs (n)(3)(i)(A)-(C) of this section, the vessel operator must 
complete and sign a Released Catch Affidavit detailing the vessel name 
and permit number; the VTR serial number; where, when, and for what 
reason the catch was released; the estimated weight of each species 
brought on board (if only part of the tow was released) or released on 
that tow. A completed affidavit must be submitted to NMFS within 48 hr 
of the end of the trip.

0
6. In Sec.  648.14, paragraphs (g)(2)(v) through (vii) are added to 
read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (g) * * *
    (2) * * *
    (v) Reporting requirements in the limited access Atlantic mackerel 
and longfin squid/butterfish moratorium fisheries. (A) Fail to declare 
via VMS into the mackerel or longfin squid/butterfish fisheries by 
entering the fishery code prior to leaving port at the start of each 
trip to harvest, possess, or land Atlantic mackerel or longfin squid, 
if a vessel has been issued a Limited Access Atlantic mackerel permit 
or

[[Page 10048]]

longfin squid/butterfish moratorium permit, pursuant to Sec.  648.10.
    (B) Fail to notify NMFS Office of Law Enforcement through VMS of 
the time and place of offloading at least 6 hr prior to arrival, or, if 
fishing ends less than 6 hours before arrival, immediately upon leaving 
the fishing grounds, if a vessel has been issued a Limited Access 
Atlantic mackerel permit, pursuant to Sec.  648.10.
    (vi) Release fish from the codend of the net, transfer fish to 
another vessel that is not carrying a NMFS-approved observer, or 
otherwise discard fish at sea before bringing the fish aboard and 
making it available to the observer for sampling, unless subject to one 
of the exemptions defined at Sec.  648.11(n)(3) if issued a Limited 
Access Atlantic mackerel permit, or a longfin squid/butterfish 
moratorium permit.
    (vii) Fail to complete, sign, and submit an affidavit if fish are 
released pursuant to the requirements at Sec.  648.11(n)(3).
* * * * *

0
7. In Sec.  648.22, paragraphs (b)(2)(vi) and (b)(4) are added to read 
as follows:


Sec.  648.22  Atlantic mackerel, squid, and butterfish specifications.

* * * * *
    (b) * * *
    (2) * * *
    (vi) River herring and shad catch cap. The Monitoring Committee 
shall provide recommendations regarding a cap on the catch of river 
herring (alewife and blueback) and shad (American and hickory) in the 
Atlantic mackerel fishery based on best available scientific 
information, as well as measures (seasonal or regional quotas, closure 
thresholds) necessary for implementation.
* * * * *
    (4) Additional measures. The Monitoring Committee may also provide 
recommendations on the following items, if necessary:
    (i) Observer provisions to maximize sampling at Sec.  648.11(n)(2);
    (ii) Exceptions for the requirement to pump/haul aboard all fish 
from net for inspection by at-sea observers in Sec.  648.11(n)(3);
* * * * *

0
8. In Sec.  648.25, paragraph (a)(1) is revised to read as follows:


Sec.  648.25  Atlantic mackerel, squid and butterfish framework 
adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The MAFMC shall develop and analyze 
appropriate management actions over the span of at least two MAFMC 
meetings. The MAFMC must provide the public with advance notice of the 
availability of the recommendation(s), appropriate justification(s) and 
economic and biological analyses, and the opportunity to comment on the 
proposed adjustment(s) at the first meeting and prior to and at the 
second MAFMC meeting. The MAFMC's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Adjustments within existing ABC control rule 
levels; adjustments to the existing MAFMC risk policy; introduction of 
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear 
restrictions; gear requirements or prohibitions; permitting 
restrictions, recreational possession limit; recreational seasons; 
closed areas; commercial seasons; commercial trip limits; commercial 
quota system, including commercial quota allocation procedure and 
possible quota set-asides to mitigate bycatch; recreational harvest 
limit; annual specification quota setting process; FMP Monitoring 
Committee composition and process; description and identification of 
EFH (and fishing gear management measures that impact EFH); description 
and identification of habitat areas of particular concern; overfishing 
definition and related thresholds and targets; regional gear 
restrictions; regional season restrictions (including option to split 
seasons); restrictions on vessel size (LOA and GRT) or shaft 
horsepower; any other management measures currently included in the 
FMP, set aside quota for scientific research, regional management; 
process for inseason adjustment to the annual specification; mortality 
caps for river herring and shad species; time/area management for river 
herring and shad species; and provisions for river herring and shad 
incidental catch avoidance program, including adjustments to the 
mechanism and process for tracking fleet activity, reporting incidental 
catch events, compiling data, and notifying the fleet of changes to the 
area(s); the definition/duration of `test tows,' if test tows would be 
utilized to determine the extent of river herring incidental catch in a 
particular area(s); the threshold for river herring incidental catch 
that would trigger the need for vessels to be alerted and move out of 
the area(s); the distance that vessels would be required to move from 
the area(s); and the time that vessels would be required to remain out 
of the area(s). Measures contained within this list that require 
significant departures from previously contemplated measures or that 
are otherwise introducing new concepts may require amendment of the FMP 
instead of a framework adjustment.
* * * * *

0
9. Remove Sec.  648.27.


Sec.  648.27  [Removed]

[FR Doc. 2014-03906 Filed 2-21-14; 8:45 am]
BILLING CODE 3510-22-P