[Federal Register Volume 85, Number 251 (Thursday, December 31, 2020)]
[Rules and Regulations]
[Pages 86849-86853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28898]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 201222-0352]
RIN 0648-BK16
Fisheries of the Northeastern United States; Increase in Sector
Carryover of 2019 Annual Catch Entitlements and Carryover of Unused
Leased-In Days-at-Sea by Common Pool Vessels
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; emergency action.
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SUMMARY: This temporary rule implements emergency measures under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act to revise portions of the fishing year 2019 carryover provisions in
the Northeast Multispecies Fishery Management Plan into fishing year
2020. This action is necessary to address an emergency presenting
conservation and management plans to the fishery. This action is
intended to mitigate economic harm to the Northeast multispecies
fishery participants by providing the opportunity to use sector Annual
Catch Entitlement and unused leased-in Days-at-Sea that would have
otherwise may have gone unused.
DATES: This action is effective December 31, 2020, through June 29,
2021. Comments must be received by February 1, 2021.
ADDRESSES: For this action, NMFS developed a Supplemental Impact Report
(SIR) for the Environmental Assessment (EA) for Framework Adjustment 59
to the Northeast Multispecies Fishery Management Plan (FMP) that
describes the measures in this temporary rule. Copies of the SIR and
the Regulatory Impact Review of this rulemaking are available on the
internet at https://www.fisheries.noaa.gov/region/new-england-mid-atlantic.
You may submit comments on this document, identified by NOAA-NMFS-
2020-0162, by the following method:
[[Page 86850]]
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal.
1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0162
2. Click the ``Comment Now!'' icon, complete the required fields,
and
3. Enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
FOR FURTHER INFORMATION CONTACT: Spencer Talmage, Fishery Management
Specialist, phone: 978-281-9232; email: Spencer.Talmage@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
At the end of fishing year 2019, the Northeast Multispecies fishery
experienced significant unexpected economic harm from the effects of
state health and travel restrictions due to COVID-19, in combination
with disruptions to fishery markets, which resulted in reduced prices
for groundfish and a limitation of fishing opportunity. Because these
impacts occurred at the end of the fishing year, this loss of fishing
opportunity prevented or limited industry participants from
capitalizing on investments in quota and Days-at-Sea (DAS) prior to the
start of the new fishing year on May 1, 2020.
On July 2, 2020, the New England Fishery Management Council sent
NMFS a letter requesting an emergency action to mitigate these
significant adverse economic impacts to the groundfish fishery. The
Council recommended that through an emergency action, NMFS should:
Allow sectors to carry over more than 10 percent of their
unused fishing year 2019 Annual Catch Entitlement (ACE) into fishing
year 2020 for Gulf of Maine (GOM) haddock, Georges Bank (GB) haddock,
American plaice, and witch flounder;
Allow common pool vessels to carryover unused leased-in
DAS from fishing year 2019 to fishing year 2020;
Allow de minimis carryover of fishing year 2019 ACE to be
more than one percent of the fishing year 2020 sector sub-ACL for all
stocks with carryover; and
Reopen the post-year sector ACE trading window for fishing
year 2019.
After considering the Council's request, NMFS is implementing some,
but not all, of the requested emergency action provisions. For the
reasons outlined below as justification for an emergency action, this
action increases maximum carryover of fishing year 2019 sector ACE for
GOM haddock, GB haddock, and American plaice and allows for unused
leased-in DAS to be carried over from fishing year 2019 into fishing
year 2020 by common pool vessels. This action does not increase maximum
carryover of fishing year 2019 sector ACE for witch flounder, increase
de minimis carryover of fishing year 2019 ACE, or reopen the post-year
sector ACE trading window for fishing year 2019.
ACE Carryover
Carryover regulations at 50 CFR 648.87(b)(1)(i)(C) allow each
groundfish sector to carry over an amount of unused ACE equal to 10
percent of the sector's original ACE for each stock (except for GB
yellowtail flounder) that is unused at the end of the fishing year into
the following fishing year. However, the total unused sector ACE being
carried over, plus the overall ACL, cannot exceed the ABC for the
following year. If this were to occur, sector carryover provisions
require us to adjust the maximum ACE carryover down from 10 percent to
an amount that prevents total potential catch from exceeding the ABC.
The final adjustment to the maximum carryover possible for each sector
is based on final fishing year catch for the sectors and each sector's
total unused allocation; and is proportional to the cumulative Percent
Sector Contributions of permits participating in the sector.
This action revises the ACE carryover regulations to increase the
maximum amount of ACE for GOM haddock, GB haddock, and American plaice
that may be carried over by groundfish sectors from fishing year 2019
into fishing year 2020. The maximum amount of unused 2019 sector ACE
for these stocks carried over into fishing year 2020 will not allow
catch to exceed the 2020 ABC for each stock (i.e., the 2020 ABC will be
equal to the overall ACL plus the maximum carryover number). The
revised carryover cap is a percentage of each sector's original ACE for
each stock (Table 1).
Table 1--Maximum Sector ACE Carryover From 2019 to 2020
------------------------------------------------------------------------
Total
carryover
available
Stock (percent of
initial 2019
ACE)
------------------------------------------------------------------------
GB haddock.............................................. 12.6
GOM haddock............................................. 13.7
American Plaice......................................... 11.3
------------------------------------------------------------------------
This action does not make any changes to the sector ACE carryover
provisions for witch flounder. Witch flounder is overfished, in a
rebuilding plan, and has an unknown overfishing status and Overfishing
Limit (OFL). The July 2020 National Standard 1 Technical Guidance for
Designing, Evaluating, and Implementing Carry-over and Phase-in
Provisions does not recommend applying carryover or phase-in provisions
for stocks that have an unspecified OFL. Though carryover of ACE for
witch flounder is already permitted by the sector implementing
regulations, increasing the maximum amount of carryover for the stock
above 10 percent would increase risk of overfishing.
Carryover of Unused Leased-In DAS by Common Pool Vessels
DAS carryover regulations at Sec. 648.82(a)(1) allow limited
access vessels that have unused, unleased DAS available at the end of a
fishing year to carry over a maximum of 10 DAS into the following
fishing year. These measures are intended to promote safety by reducing
risk and increasing flexibility while not compromising the conservation
impact of the DAS program. The regulations at Sec. 648.82(a)(1) and
(k)(4)(iii) do not allow us to adjust the maximum DAS carryover, nor do
they authorize us to allow the carryover of unused leased-in DAS.
This action revises the DAS carryover regulations to allow common
pool vessels with unused leased-in DAS at the end of fishing year 2019
to carry those DAS into fishing year 2020, even if doing so would
result in a vessel carrying over more than 10 DAS into the fishing
year. This action does not revise the regulations to allow any
additional carryover of unused allocated DAS.
De Minimis Carryover
Regulations at Sec. 648.87(b)(1)(i)(C)(2) set de minimis carryover
at one percent of the overall sector sub-ACL in the fishing year in
which carryover would be harvested. If the overall ACL for a particular
stock is exceeded, the
[[Page 86851]]
allowed carryover, minus the de minimis amount, would be counted
against the sector's ACE for the purposes of determining an overage
subject to a sector accountability measure that requires payback.
This action does not increase de minimis carryover for sectors
above one percent as requested by the Council because it would not
address a recent, unforeseen event or recently discovered circumstance
as required by the criteria for an emergency action published in the
Federal Register on August 21, 1997, 62 FR 44421, as well as subsequent
guidance. De minimis carryover is only triggered by an overage of the
overall ACL for a stock. No such overage has occurred in fishing year
2020 to trigger de minimis carryover, and we do not currently
anticipate any overages. This action is putting in place measures to
address the opposite problem arising from travel and health
restrictions, the fishing industry's inability to fully utilize
available ACE. Further, there are no immediate benefits from changing
the de minimis carryover provision at this time that would outweigh the
value of advance notice, public comment, and deliberative consideration
of the impacts.
Post-Year Sector ACE Trading Window
In the beginning of each fishing year, there is a 2-week period for
sectors to address any overages from the prior fishing year by
transferring ACE to or from other sectors. This 2-week period generally
takes place in early July, once final catch information is available to
each sector. Sectors are only allowed to transfer ACE to balance an
overage, or transfer out quota to assist another sector in balancing
its overage. The Council requested that we consider reopening the post-
year sector ACE trading window in order to allow sectors to optimize
individual sector carryover amounts for fishing year 2020.
This action does not reopen the post-year sector ACE trading window
for fishing year 2019. Reopening the post-year trading window would
complicate and delay implementation of this emergency action, without
significant benefit to sectors as a whole. It would not result in an
increase in the overall amount of carryover that could occur, and any
ACE carried over from fishing year 2019 to fishing year 2020 can
already be traded without limitation in fishing year 2020, without
requiring a reopening of the fishing year 2019 trading window.
Reopening the 2019 post-fishing year trading window could
potentially result in increases in individual sector carryover amounts,
but this is not guaranteed given that sectors are not obligated to
trade. It would not increase the overall amount of carryover available
to the sectors because we have already calculated the maximum amount of
overall carryover by stock that could be allowed for fishing year 2020
without exceeding a stock's ABC. Further, we have already calculated an
increased percentage per sector that may be carried over from fishing
year 2019 to fishing year 2020.
Justification for Emergency Action
NMFS' policy guidelines for the use of emergency rules (62 FR
44421; August 21, 1997) specify the following three criteria for
emergency actions: (1) The emergency results from recent, unforeseen
events or recently discovered circumstances; (2) the emergency presents
serious conservation or management problems in the fishery; and (3) the
emergency can be addressed through emergency regulations for which the
immediate benefits outweigh the value of advance notice, public
comment, and deliberative consideration of the impacts on participants
to the same extent as would be expected under the normal rulemaking
process. NMFS' policy guidelines further provide that emergency action
is justified for certain situations where emergency action would
prevent significant direct economic loss, or to preserve a significant
economic opportunity that otherwise might be foregone. NMFS has
determined that extending portions of the carryover provisions in the
Northeast Multispecies Fishery Management Plan meets the criteria for
emergency action for the reasons outlined below.
The emergency results from recent, unforeseen events or recently
discovered circumstances. Towards the end of the 2019 fishing year
(March 2020), state health mandates and travel restrictions were
implemented in response to the COVID-19 pandemic. These restrictions
and mandates contributed to market and supply chain disruptions while
also making it difficult for vessels to make fishing trips. This
reduced or prevented fishing opportunities. Further, market prices
dropped substantially. These impacts were unforeseen during the
development of Framework Adjustment 59 that included measures for the
2020 fishing year that began on May 1, 2020.
The emergency presents serious conservation or management problems
in the fishery. As described above, unforeseen health mandates and
travel restrictions during the last months of fishing year 2019
disrupted vessel business plans, fishing practices and markets. This
caused revenues for the groundfish fishery to decline due to abnormally
low ex-vessel prices that fell below production costs and lost
investment in quota that could not be landed by the end of the 2019
fishing year. Health mandates and travel restrictions additionally
prevented or limited common pool vessels from using leased-in DAS,
which resulted in lost revenue when the vessels were unable to carry
them over into fishing year 2020. Increasing ACE carryover of certain
stocks into fishing year 2020 and allowing common pool vessels to
carryover unused leased-in DAS will help mitigate negative impacts to
the industry, prevent additional economic loss to industry
participants, shoreside businesses, and fishing communities, and help
offset lost fishing opportunities at the end of fishing year 2019.
The emergency can be addressed through emergency regulations for
which the immediate benefits outweigh the value of advanced notice,
public comment, and deliberative consideration of the impacts on
participants to the same extent as would be expected under the normal
rulemaking process. The Council has the authority to develop a
management action to increase the maximum of 2019 carryover and allow
carryover of unused leased-in DAS. However, an emergency action can be
developed and implemented by NMFS more swiftly than a Council action
through the public meeting and rulemaking procedures. If the normal
Council Framework Adjustment and regulatory process is used to revise
the carryover provisions, it would take not be possible for the revised
provisions to be implemented prior to the end of the fishing year.
Implementing these measures well in advance of the end of this
fishing year will allow vessels more operational flexibility. Timely
availability of additional ACE carryover or DAS should provide
fishermen with operational flexibility to increase fishing effort
within seasonal demands and variations, or to lease out available ACE
or DAS to others who may effectively use it. Fully capitalizing on this
carryover requires time to plan and adapt to current market and
seasonal conditions. Any delay of this action reduces the length of
time during which industry could choose to use additional ACE or DAS
that have been carried over from fishing year 2019 into fishing year
2020. If the action is not implemented in a timely way well before the
end of fishing year 2020, industry participants
[[Page 86852]]
would be likely unable or less able to effectively use the increased
carryover.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this rule is necessary to respond to an emergency situation and is
consistent with the national standards and other provisions of the
Magnuson-Stevens Act and other applicable laws. The rule may be
extended for a period of not more than 186 days as provided under
section 305(c)(3)(B) of the Magnuson-Stevens Act.
The Assistant Administrator Fisheries, NOAA, finds that it would be
impracticable and contrary to the public interest to provide for prior
notice and an opportunity for public comment. This action is intended
to mitigate the impact of lost investment in quota and DAS due to
health mandates and major disruptions to markets at the end of fishing
year 2019. The action increases maximum ACE carryover for some stocks
and allows carryover of unused leased-in DAS by the common pool,
allowing industry to use the carried over quota and DAS in fishing year
2020 at a time of their choosing. Any delay of this action reduces the
length of time during which industry could benefit from increased ACE
or DAS that have been carried over. If the action is not implemented in
a timely way well before the end of fishing year 2020, industry
participants would be unable to use the increased carryover. Given
this, a delay in the implementation of this action could result in
additional negative impacts to industry participants and fishing
communities. As a result, prior notice and the opportunity for public
comment, pursuant to authority set forth at U.S.C. 553(b)(B), would be
impracticable and contrary to the public interest. Data supporting the
additional ACE carryover were available only recently in October. This
action could not be implemented prior to the availability of that data,
even though the Council request for an emergency action was received in
July.
Similarly, the need to implement these measures in a timely manner
for the above reasons constitutes good cause under authority contained
in 5 U.S.C. 553(d)(3), to make the rule effective immediately upon
publication in the Federal Register.
This action is being taken pursuant to the emergency provision of
MSA and is exempt from OMB review.
This rule is an Executive Order 13771 deregulatory action.
This temporary rule for an emergency action is exempt from the
procedures of the Regulatory Flexibility Act because the rule is issued
without opportunity for prior notice and opportunity for public
comment.
This temporary rule for an emergency action contains no information
collection requirements under the Paperwork Reduction Act of 1995.
In the interest of receiving public input on this action, the SIR
analyzing this action will be made available to the public and this
temporary final rule solicits public comment.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: December 22, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
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. 648.82, suspend paragraphs (a)(1) and (2) and (k)(4)(iii)
and add paragraphs (a)(3) and (4) and (k)(4)(xii) to read as follows:
Sec. 648.82 Effort-control program for NE multispecies limited access
vessels.
* * * * *
(a) * * *
(3) End-of-year carryover. With the exception of vessels that held
a Confirmation of Permit History, as described in Sec.
648.4(a)(1)(i)(J), for the entire fishing year preceding the carry-over
year, limited access vessels that have unused DAS on the last day of
April of any year may carry over a maximum of 10 DAS into the next
year. Unused leased DAS may not be carried over, except as specified in
paragraph (a)(3)(i) of this section. Vessels that have been sanctioned
through enforcement proceedings will be credited with unused DAS based
on their DAS allocation minus any total DAS that have been sanctioned
through enforcement proceedings. For the 2004 fishing year only, DAS
carried over from the 2003 fishing year will be classified as Regular B
DAS, as specified under paragraph (d)(2) of this section. Beginning
with the 2005 fishing year, for vessels with a balance of both unused
Category A DAS and unused Category B DAS at the end of the previous
fishing year (e.g., for the 2005 fishing year, carry-over DAS from the
2004 fishing year), Category A DAS will be carried over first, than
Regular B DAS, than Reserve B DAS. Category C DAS cannot be carried
over.
(i) Leased DAS that remain unused at the end of fishing year 2019
may be carried over to fishing year 2020 by the Lessee vessel, provided
that the vessel fished in the common pool in fishing year 2019 and
continues to do so in fishing year 2020. Carried over leased DAS from
fishing year 2019 do not count towards the maximum number of DAS that
can be carried over to fishing year 2020, as described in paragraph
(a)(3) of this section.
(ii) [Reserved]
(4) Vessels carrying passengers for hire. Notwithstanding any other
provision of this part, any vessel issued a NE multispecies limited
access permit may not call into the DAS program and fish under a DAS,
fish on a sector trip, or fish under the provisions of a limited access
Small Vessel Category or Handgear A permits pursuant to paragraphs
(b)(5) and (6) of this section, respectively, if such vessel carries
passengers for hire for any portion of a fishing trip.
* * * * *
(k) * * *
(4) * * *
(xii) Carry-over of leased DAS. Leased DAS that remain unused at
the end of the fishing year may not be carried over to the subsequent
fishing year by the Lessor or Lessee vessel, except as specified in
paragraph (a)(3)(i) of this section.
* * * * *
0
3. In Sec. 648.87, add paragraph (b)(1)(i)(C)(1)(iii) to read as
follows:
Sec. 648.87 Sector allocation.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(C) * * *
(1) * * *
(iii) Fishing year 2019 carryover. A sector that has over 10
percent of its original ACE for GB haddock, GOM haddock, or American
plaice unused at the end of fishing year 2019 may carry over more than
10 percent of that ACE to fishing year 2020. The total unused fishing
year 2019 ACE for a particular stock that is carried over to fishing
year 2020, plus the overall ACL for fishing year 2020, may not exceed
the ABC for that stock for fishing year 2020. The total maximum
carryover of fishing year 2019 ACE for GB haddock, GOM haddock, and
American plaice for each sector is specified in Table 1 to this
paragraph (b)(1)(i)(C)(1)(iii).
[[Page 86853]]
Table 1 to Paragraph (b)(1)(i)(C)(1)(iii)--Maximum Sector ACE Carryover
From 2019 to 2020
------------------------------------------------------------------------
Total maximum
carryover
Stock (percent of
initial 2019
ACE)
------------------------------------------------------------------------
GB haddock.............................................. 12.6
GOM haddock............................................. 13.7
American Plaice......................................... 11.3
------------------------------------------------------------------------
* * * * *
[FR Doc. 2020-28898 Filed 12-30-20; 8:45 am]
BILLING CODE 3510-22-P