[Federal Register Volume 79, Number 104 (Friday, May 30, 2014)]
[Rules and Regulations]
[Pages 31050-31053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12538]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 131030919-4436-02]
RIN 0648-BD73


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Reporting Requirements; Unused Catch Carryover

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

ACTION: Final rule.

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SUMMARY: NMFS is implementing two measures in this rulemaking: A 
requirement for daily Vessel Monitoring System (VMS) catch reporting 
for vessels declared to fish in the Eastern U.S./Canada Area; and the 
de minimis amount of unused fishing year (FY) 2013 sector annual catch 
entitlement (ACE) that may be carried over, beginning in FY 2014, 
without being subject to potential accountability measures. The 
revision to the reporting requirement is necessary to ensure accurate 
and timely Eastern U.S./Canada Area catch reporting for quota 
monitoring purposes. The de minimis carryover amount is necessary to 
complete the carryover process NMFS described for FY 2014 in 
conjunction with the May 2013 rulemaking for Framework Adjustment 50 to 
the Northeast (NE) Multispecies Fishery Management Plan (FMP).

DATES: This rule is effective June 30, 2014. The de minimis carryover 
amount outlined in Table 1 in the preamble is effective June 30, 2014, 
through April 30, 2015.

ADDRESSES: Copies of Framework 50 and its associated documents, 
including the environmental assessment (EA), the Regulatory Impact 
Review (RIR), and the Final Regulatory Flexibility Analysis (FRFA) 
prepared by the Council and NMFS are available from John K. Bullard, 
Regional Administrator, NMFS Northeast Regional Office (NERO), 55 Great 
Republic Drive, Gloucester, MA 01930. The previously listed documents 
are also accessible via the Internet at: http://www.nero.noaa.gov/sfd/sfdmulti.html.

FOR FURTHER INFORMATION CONTACT: For information on the Eastern U.S./
Canada Area reporting requirements in this rule contact Liz Sullivan, 
Fishery Management Specialist, phone: 978-282-8493. For information on 
the unused ACE de minimis carryover amount, contact Mike Ruccio, 
Fishery Policy Analyst, phone: 978-281-9104.

SUPPLEMENTARY INFORMATION:

1. Background

    Eastern U.S./Canada Area Daily VMS Reporting. Prior to FY 2013, the 
regulatory text for the catch monitoring/attribution program for 
Georges Bank (GB) cod and haddock required that all GB cod and haddock 
caught on a trip in which a vessel fished in both the Western and 
Eastern U.S./Canada Areas be attributed to the Eastern Area. In 
practice, we attributed catch of these stocks to areas fished based on 
our understanding that Amendment 16 to the FMP intended this result; 
however, the regulatory text was inadvertently left unchanged from pre-
Amendment 16 measures.
    In commenting on a proposed rule for Amendment 48 to the FMP (78 FR 
18188; March 25, 2013), which included a measure to correct this 
inadvertent language holdover, the New England Fishery Management 
Council (Council) objected to the proposed revision, stating it was 
inconsistent with their intent in Amendment 16. Because the proposed 
change was meant to reflect Council intent regarding Amendment 16, we 
withdrew its proposed revision, leaving the original text in place in 
the final rule (i.e., GB cod and haddock catch would be attributed to 
the Eastern U.S./Canada Area). We noted this change as an interim 
measure, but asked for comments as it varied from the proposed rule. We 
then received a second comment letter from the Council on the interim 
measure, retracting the first statement of intent, and supporting the 
approach we first proposed. The Council also suggested that the 
requirement for daily reporting of catch in the Eastern Area should be 
reinstituted as allowed under Amendment 16 through Regional 
Administrator authority to better ensure timely and accurate reporting 
for quota monitoring purposes.
    Based on the second Council letter, we announced on July 10, 2013, 
that Eastern U.S./Canada Area catch monitoring was being changed from 
the interim method to a system that apportions catch based on area 
fished, consistent with the recommendation of the Council and the 2013 
proposed rule measure. We published the final rule for this monitoring 
method on August 29, 2013 (78 FR 53363). Accounting for all FY 2013 
trips has been retroactively revised from the interim approach to the 
area fished method. Such changes were considered to be within the 
purview of the Regional Administrator (Sec.  648.85(a)(3)(ii)(A)).
    The Amendment 16 final rule (75 FR 18262; April 9, 2010) also 
intended to remove the requirement for sector vessels to submit daily 
VMS catch reports when declared into the U.S./Canada Management Area, 
as well as the two Eastern U.S./Canada Special Access Programs (SAPs; 
the Closed Area II Yellowtail Flounder/Haddock SAP and the Eastern 
U.S./Canada Haddock SAP), because the requirement for a weekly sector 
manager report was determined to be sufficient by the Regional 
Administrator. This intent was captured in the preamble of the proposed 
and final rules for Amendment 16; however, this change was not 
reflected in the regulatory text at Sec.  648.85(a)(3)(v). 
Subsequently, the Council requested that we implement a daily reporting 
requirement for the Eastern U.S./Canada Area to address misreporting 
and ensure more accurate and timely reporting for this area. As part of 
the rulemaking on August 29, 2013 (78 FR 53363), we announced our 
intention to require sector vessels declared to fish in the Eastern 
U.S./Canada Area to submit daily VMS catch

[[Page 31051]]

reports. We did not, and do not, intend to change the weekly reporting 
requirement for vessels declared only into the Western U.S./Canada 
Area.
    Because the daily reporting requirement is already specified in the 
regulations (Sec.  648.85(a)(3)(v)) for vessels declared into the 
Eastern U.S./Canada Area, this provision need not change, except to 
clarify that the daily reporting requirement does not apply to vessels 
declared only into the Western U.S./Canada Area. Accordingly, this 
action modifies the reporting requirement of Sec.  648.85(a)(3)(v) to 
clarify that only sector vessels that have declared into the Eastern 
U.S./Canada Area are required to submit daily catch reports, and that, 
for vessels declared only into the Western U.S./Canada Area, sectors 
must continue to submit weekly sector catch reports. The intent of this 
action is to improve the accuracy of reporting of the Eastern U.S./
Canada Area.
    De Minimis Unused Sector ACE Carryover. In conjunction with the 
rule implementing Framework Adjustment 50 for FY 2013, we issued 
rulemaking under section 305(d) of the Magnuson-Stevens Act to clarify 
how accounting for year-to-year unused sector ACE carryover would be 
handled beginning in FY 2014 (78 FR 26172; May 3, 2013). The applicable 
regulations outlining the carryover system, including the revisions 
made in Framework Adjustment 50, can be found in Sec.  
648.87(b)(1)(i)(F)(1)-(5).
    Our clarification specified that sectors would be held accountable 
for any overage of the sector-specific sub-annual catch limit (sub-ACL) 
if the total fishery level ACL were exceeded in any given year, 
consistent with the existing accountability measures regulations. The 
clarification makes explicitly clear that sectors would be accountable 
for carried-over catch used if the total ACL is exceeded, except for a 
nominal de minimis amount to be determined by NMFS. We believe 
providing a nominal amount of carryover is an important safety 
consideration because, by allowing some carryover, vessels could elect 
to forego some portion of, or entire, late-season fishing trips for 
safety reasons, knowing that they could instead harvest the de minimis 
amount in the next fishing year, irrespective of any accountability 
measures. Substantial explanation of the carryover program accounting 
is provided in Framework 50 and the associated rulemaking documents, 
and is not repeated here.
    Recently, the U.S. District Court (District of Columbia) found that 
the FY 2013 carryover catch accounting measures implemented as a 
transition-year approach, before a system that maintained full 
accountability if total ACLs are exceeded, violated the Magnuson-
Stevens Act. We will be developing a separate emergency rulemaking to 
implement a remedy for carryover of FY 2013 catch to 2014.

2. Approved Measures

    Eastern U.S./Canada Area Daily VMS Reporting. NMFS approves the 
requirement for sector vessels declared to fish in the Eastern U.S./
Canada Area to submit daily VMS catch reports. The reports must be 
submitted in 24-hour intervals for each day, and are required to 
include at least the following information:
    1. VTR serial number or other universal ID specified by the 
Regional Administrator;
    2. Date fish were caught and statistical area in which the fish 
were caught; and
    3. Total pounds of cod, haddock, yellowtail flounder, winter 
flounder, witch flounder, pollock, American plaice, redfish, Atlantic 
halibut, ocean pout, Atlantic wolffish, and white hake kept (in pounds, 
live weight) in each broad stock area, specified in Sec.  648.10(k)(3), 
as instructed by the Regional Administrator.
    The regulations at Sec.  648.85(a)(3)(v) currently require sector 
vessels to submit daily reports if they declare into a U.S./Canada 
Area. This rule does not require a substantive change to the 
regulations for vessels declared into the Eastern U.S./Canada Area, 
because daily reporting is needed in the Eastern U.S./Canada Area to 
ensure accurate catch reporting. However, although the previous 
regulatory text required daily reporting for vessels declared into the 
Western U.S./Canada Area, weekly sector catch reports have been 
determined to be sufficient for that area. Therefore, the regulatory 
text at Sec.  648.85(a)(3)(v) is modified to delete the daily reporting 
requirement for such vessels.
    Pursuant to the regulations at Sec.  648.10(k)(2), vessels that 
have declared their intent to fish within multiple Broad Stock Areas 
must submit a trip-level hail report via VMS. This report must include 
the landed weight of regulated species and total retained catch, unless 
the vessel is fishing in a special management program such as the 
Eastern U.S./Canada Area, and is required to submit daily reports via 
VMS. With this rule, a sector vessel on a trip declared into the 
Eastern U.S./Canada Area and fishing in multiple Broad Stock Areas is 
exempt from the requirement to submit a trip-level catch report.
    A sector vessel using an annually approved sector exemption from 
the requirement to declare intent to fish in either the Closed Area II 
Yellowtail Flounder/Haddock SAP or the Eastern U.S./Canada Haddock SAP 
from the dock (known as flexing) will be required to submit a report to 
indicate their catch for the trip up until the time they declare into 
the Eastern U.S./Canada SAP. Once declared into either of these SAPs, 
the sector vessel must submit daily reports for the remainder of the 
trip.
    De Minimis Unused Sector ACE Carryover. NMFS approves the measure 
to provide 1 percent of the annual sector sub-annual catch limit (sub-
ACL) as the de minimis carryover amount, starting in FY 2014. This de 
minimis amount of carryover, if used, will not be specifically counted 
against the sector ACE or ACL for accountability purposes. The full 
sub-ACL is still allocated to sectors as ACE (i.e., not reduced by 1 
percent). The existing carryover provision that allows up to 10 percent 
of unused sector ACE to be carried over remains in effect; however, any 
carried over catch in excess of the de minimis amount will be counted 
against the sector ACE and overall ACL for accountability purposes if 
the total fishery-level ACL is exceeded.
    By using a nominal amount of the sector-specific sub-ACL in the 
derivation process, the resulting 1-percent de minimis carryover falls 
within the management uncertainty buffer established for sectors. This 
approach ensures that the de minimis value is in line with catch limits 
established for the FY in which carryover may be taken. For FY 2015 and 
beyond, NMFS approves this approach of using 1 percent of the sector 
sub-ACL for the year in which carryover would be harvested as the 
default de minimis amount. The actual value may vary year-to-year based 
on the sub-ACLs specified for the year. NMFS will publish the actual de 
minimis amount in conjunction with either Council initiated frameworks 
implementing ACLs or in sector ACE adjustment rules.

[[Page 31052]]



 Table 1--Potential FY 2014 Catch Limit Information, De Minimis Carryover Amounts, Total Potential Catch, and Impact of Realizing Total Potential Catch
                                                              [All weights in metric tons]
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                                                        2014 Potential catch limit information                 De minimis amount and evaluation
                                                 -------------------------------------------------------------------------------------------------------
                                                                                                       De minimis     Total
                Stock of species                                                           FY 2014      Value--1    potential
                                                  FY 2014 OFL  FY 2014 ABC    FY 2014    Sector sub-   Percent of   catch (de    Percent of   Percent of
                                                                             Total ACL       ACL      Sector sub-   minimis +    total ACL       ABC
                                                                                                          ACL       total ACL)
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Georges Bank (GB) Atlantic cod..................        3,570        2,506        1,867        1,776           18        1,885        101.0         75.2
Gulf of Maine (GOM) Atlantic cod................        1,917        1,550        1,470          812            8        1,478        100.6         95.4
GB Haddock......................................       46,268       35,699       18,312       17,116          171       18,483        100.9         51.8
GOM Haddock.....................................          440          341          323          218            2          325        100.7         95.4
S. New England (SNE) yellowtail flounder........        1,042          700          665          469            5          670        100.7         95.7
Cape Cod/GOM yellowtail flounder................          936          548          523          466            5          528        100.9         96.3
American Plaice.................................        1,981        1,515        1,442        1,357           14        1,456        100.9         96.1
Witch Flounder..................................        1,512          783          751          599            6          757        100.8         96.7
GB Winter Flounder..............................        4,626        3,598        3,493        3,364           34        3,527        101.0         98.0
GOM Winter Flounder.............................        1,458        1,078        1,040          688            7        1,047        100.7         97.1
SNE/Mid-Atlantic Winter Flounder................        3,372        1,676        1,612        1,074           11        1,623        100.7         96.8
Acadian Redfish.................................       16,130       11,465       10,909       10,523          105       11,014        101.0         96.1
White Hake......................................        6,237        4,713        4,417        4,247           42        4,459        101.0         94.6
Pollock.........................................       20,554       16,000       15,304       13,131          131       15,435        100.9        96.5
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All stocks are expected to continue use of a 5 percent uncertainty buffer between ABC and ACL in FY 2014 except for GB winter flounder (3 percent).

Corrections to the Code of Federal Regulations

    NMFS modifies the text at Sec.  648.14(k)(11)(iv)(A) to clarify the 
reporting requirements by removing the word ``landings'' from the 
paragraph.
    NMFS modifies the text at Sec.  648.85(a)(3)(v) in order to clarify 
that the authority granted to the NMFS Regional Administrator to remove 
the daily reporting requirements for special management programs is 
separate and distinct from the regulatory requirement. This 
modification moves the language explaining the Regional Administrator's 
authority to a new subsection (Sec.  648.85(a)(3)(v)(B)) with a further 
clarification that the Regional Administrator's authority also includes 
modification of reporting requirements.

Summary of Comments Received on the Proposed Rule

    On March 17, 2014, we proposed this rule and requested public 
comments (79 FR 14635). We received two comments, one relating to the 
Eastern U.S./Canada Area daily catch reporting, and the other relating 
to the de minimis carryover.
    Comment 1: The Cape Cod Commercial Fishermen's Alliance (CCCFA) 
expressed continued concern for the potential for misreporting of GB 
cod caught in the Eastern Area as Western Area GB cod. CCCFA stated 
that, although daily reporting for trips declared into the Eastern Area 
will help, it is insufficient to prevent the misreporting on unobserved 
trips catching cod.
    Response: The intent of this rule is to increase accuracy of 
reporting, and is based on a recommendation made by the Council. We 
agree with the Council that daily reporting should increase the 
accuracy and timeliness of Eastern U.S./Canada area catch reporting for 
quota monitoring. However, NMFS agrees that misreporting still has the 
potential to occur, and welcomes suggestions that would further reduce 
the potential for misreporting.
    Comment 2: The Council disagreed that it was within our authority 
under MSA section 305(d) to clarify the existing Amendment 16 carryover 
program. Similar comments were submitted by the Council in conjunction 
with Framework 50 rulemaking where we implemented carryover accounting 
clarification and introduced the de minimis concept.
    Response: NMFS clarified in Framework 50 how carryover will be 
accounted for purposes of accountability measures, in order to ensure 
that NMFS can discharge its responsibility to implement the carryover 
provisions in a manner consistent with the Magnuson-Stevens Act, 
particularly provisions requiring the prevention of overfishing. Such 
clarification is well within the agency's authority and is wholly 
consistent with the intent of section 305(d) of the Magnuson-Stevenson 
Act. None of the pre-existing carryover regulations implemented by 
Amendment 16 were changed by this clarification: Sectors may continue 
to carryover up to 10 percent of unused ACE from the previous fishing 
year.
    However, the 2014 approach allows fishermen to rely on some 
guarantee of a de minimis amount of carryover without consequences to 
promote safety at sea and management predictability.

Changes From the Proposed Rule

    NMFS makes one change from the proposed rule in this action, in 
that it clarifies the manner in which a sector vessel using an annually 
approved sector exemption to flex into either the Closed Area II 
Yellowtail Flounder/Haddock SAP or the Eastern U.S./Canada Haddock SAP 
from the dock will submit a trip and daily reports indicating their 
catch.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that the management 
measures in this final rule are consistent with the NE Multispecies 
FMP, other provisions of the Magnuson-Stevens Act, and other applicable 
law.
    Pursuant to the procedures established to implement section 6 of 
Executive Order (E.O.) 12866, the Office of Management and Budget has 
determined that this final rule is not significant.
    This final rule does not contain policies with federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. We received no comments on that certification. As a result, a 
regulatory flexibility analysis is not required, and was not prepared.

[[Page 31053]]

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: May 22, 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.  648.14, revise paragraph (k)(11)(iv)(A) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (11) * * *
    (iv) * * * (A) If fishing under a NE multispecies DAS or on a 
sector trip in the Western U.S./Canada Area or Eastern U.S./Canada Area 
specified in Sec.  648.85(a)(1), fail to report in accordance with 
Sec.  648.85(a)(3)(v).
* * * * *

0
3. In Sec.  648.85, revise paragraph (a)(3)(v) to read as follows:


Sec.  648.85  Special management programs.

    (a) * * *
    (3) * * *
    (v) Reporting. (A) The owner or operator of a common pool vessel 
must submit reports via VMS, in accordance with instructions provided 
by the Regional Administrator, for each day of the fishing trip when 
declared into either of the U.S./Canada Management Areas. The owner or 
operator of a sector vessel must submit daily reports via VMS, in 
accordance with instructions provided by the Regional Administrator, 
for each day of the fishing trip when declared into the Eastern U.S./
Canada Area. Vessels subject to the daily reporting requirement must 
report daily for the entire fishing trip, regardless of what areas are 
fished. The reports must be submitted in 24-hr intervals for each day, 
beginning at 0000 hr and ending at 2359 hr, and must be submitted by 
0900 hr of the following day, or as instructed by the Regional 
Administrator. The reports must include at least the following 
information:
    (1) VTR serial number or other universal ID specified by the 
Regional Administrator;
    (2) Date fish were caught and statistical area in which fish were 
caught; and
    (3) Total pounds of cod, haddock, yellowtail flounder, winter 
flounder, witch flounder, pollock, American plaice, redfish, Atlantic 
halibut, ocean pout, Atlantic wolffish, and white hake kept (in pounds, 
live weight) in each broad stock area, specified in Sec.  648.10(k)(3), 
as instructed by the Regional Administrator.
    (B) The Regional Administrator may remove or modify the reporting 
requirement for sector vessels in Sec.  648.85(a)(3)(v) in a manner 
consistent with the Administrative Procedure Act.
* * * * *

[FR Doc. 2014-12538 Filed 5-29-14; 8:45 am]
BILLING CODE 3510-22-P