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, 86849-86853 [2020-28898]
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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations
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§ 389.15
[Amended]
5. The title of § 389.15 and paragraphs
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■ 6. Revise § 389.21 to read as follows:
■
§ 389.21
Submission of written comments.
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86849
Issued under authority delegated in 49 CFR
1.87.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020–27854 Filed 12–30–20; 8:45 am]
BILLING CODE 4910–EX–P
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 Daysat-Sea by Common Pool Vessels
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; emergency
action.
AGENCY:
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/newengland-mid-atlantic.
You may submit comments on this
document, identified by NOAA–NMFS–
2020–0162, by the following method:
SUMMARY:
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• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal.
1. Go to www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20200162
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:
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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;
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• 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).
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TABLE 1—MAXIMUM SECTOR ACE
CARRYOVER FROM 2019 TO 2020
Stock
GB haddock ..........................
GOM haddock ......................
American Plaice ....................
Total
carryover
available
(percent of
initial 2019
ACE)
12.6
13.7
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
§ 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
§ 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 § 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
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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 postyear sector ACE trading window for
fishing year 2019. Reopening the postyear 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
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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
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86851
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
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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
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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
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
2. In § 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:
■
§ 648.82 Effort-control program for NE
multispecies limited access vessels.
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(a) * * *
(3) End-of-year carryover. With the
exception of vessels that held a
Confirmation of Permit History, as
described in § 648.4(a)(1)(i)(J), for the
entire fishing year preceding the carryover 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
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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.
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(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.
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■ 3. In § 648.87, add paragraph
(b)(1)(i)(C)(1)(iii) to read as follows:
§ 648.87
Sector allocation.
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(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).
E:\FR\FM\31DER1.SGM
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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations
Atmospheric Administration (NOAA),
TABLE 1 TO PARAGRAPH
(b)(1)(i)(C)(1)(iii)—MAXIMUM SEC- Commerce.
TOR ACE CARRYOVER FROM 2019 ACTION: Final rule; correction.
TO 2020
NMFS published a final rule
on December 11, 2020 to establish the
2021–2022 harvest specifications and
Stock
management measures for groundfish
taken in the U.S. exclusive economic
zone off the coasts of Washington,
Oregon, and California. That final rule
GB haddock ..........................
12.6
GOM haddock ......................
13.7 modified the boundaries of the
American Plaice ....................
11.3 commercial non-trawl rockfish
conservation area (RCA) for limited
entry fixed-gear and open-access
*
*
*
*
*
vessels. In implementing these changes,
[FR Doc. 2020–28898 Filed 12–30–20; 8:45 am]
NMFS incorrectly identified the
BILLING CODE 3510–22–P
seaward boundary of the commercial
non-trawl RCA south of 34°27′ N lat. for
DEPARTMENT OF COMMERCE
limited entry fixed-gear vessels. This
correction is necessary so that the
National Oceanic and Atmospheric
implementing regulations are accurate
Administration
and implement the action as intended
by the Pacific Fishery Management
50 CFR Part 660
Council (Council).
SUMMARY:
Total
maximum
carryover
(percent of
initial 2019
ACE)
[Docket No. 201204–0325]
This correction is effective on
January 1, 2021.
DATES:
RIN 0648–BJ74
FOR FURTHER INFORMATION CONTACT:
Magnuson-Stevens Act Provisions;
Fisheries Off West Coast States;
Pacific Coast Groundfish Fishery;
Pacific Coast Groundfish Fishery
Management Plan; Amendment 29;
2021–22 Biennial Specifications and
Management Measures; Correction
Karen Palmigiano at karen.palmigiano@
noaa.gov or 206–526–4491.
National Marine Fisheries
Service (NMFS), National Oceanic and
khammond on DSKJM1Z7X2PROD with RULES
AGENCY:
VerDate Sep<11>2014
17:03 Dec 30, 2020
Jkt 253001
NMFS
published a final rule on December 11,
2020 (853 FR 79880) that established the
2021–2022 harvest specifications and
management measures for groundfish
taken in the U.S. exclusive economic
zone off the coasts of Washington,
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00061
Fmt 4700
Sfmt 4700
86853
Oregon, and California. That final rule
is effective January 1, 2021.
The December 11, 2020 final rule
defined the boundaries of the
commercial non-trawl rockfish
conservation area (RCA) south of 34°27′
north latitude (N lat.) for limited entry
fixed-gear vessels as 100 fathoms (fm) to
125 fm. The same rule defined the
boundaries of the commercial non-trawl
RCA south 34°27′ N lat. for open-access
vessels as 100 fm to 150 fm. The correct
boundaries for the commercial nontrawl RCA south of south of 34°27′ N lat.
for both limited entry fixed-gear and
open-access vessels is 100 fm to 150 fm.
This correction is consistent with the
Council recommendation for the 2021–
2022 groundfish harvest specifications
and is a minor correction to correctly
implement the Council intent in their
final action taken at the June 2020
Council meeting.
Correction
In FR. Doc. 2020–27142 at 85 FR
79880 in the issue of December 11,
2020, on page 79922, in amendatory
instruction 16, Table 2 (South) to part
660, subpart E, is corrected to read as
follows:
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]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: [email protected].
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
