[Federal Register Volume 79, Number 124 (Friday, June 27, 2014)]
[Rules and Regulations]
[Pages 36433-36436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15153]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 140616507-4507-01]
RIN 0648-BE19


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

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

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: NMFS is changing the accounting system and accountability 
measures implemented last year for fishing year 2012 Northeast 
multispecies fishery sector annual catch entitlement carryover used 
during fishing year 2013. This change implements a stock level pound-
for-pound payback accountability measure if a sector uses its 2012 
carryover and both the sector sub-annual catch limit and the overall 
annual catch limit are exceeded. This rule is necessary to comply with 
an April 4, 2014, ruling by the U.S. District Court for the District of 
Columbia that invalidated and vacated the fishing year 2013 carryover 
measures.

DATES: Effective June 27, 2014, except for the amendment to Sec.  
648.87 (b)(1)(i)(C)(2)(i) which is effective June 27, 2014, through 
December 24, 2014. Comments must be received on or before July 28, 
2014.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2014-0070, 
by any of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0070, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
John K. Bullard, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Comments on the Court remedy carryover 
emergency rule.''
     Fax: (978) 281-9135, Attn: Michael Ruccio.
    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). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    A National Environmental Policy Act (NEPA) Supplemental Information 
Report (SIR), including a Regulatory Impact Review, has been prepared 
for this action. Copies of the SIR prepared for this action by NMFS are 
available from John K. Bullard, Regional Administrator, 55 Great 
Republic Drive, Gloucester, MA 01930. The SIR is accessible via the 
Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy 
Analyst, phone: 978-281-9104.

SUPPLEMENTARY INFORMATION: This rule to respond to a recent U.S. 
District Court decision in Conservation Law Foundation v. Pritzker, et 
al. (Case No. 1:13-CV-0821-JEB) provides information in a question in 
response format. The key questions are:

1. What action is being taken by this rule?
2. What are the events and background that led to this rule becoming 
necessary?
3. What is the justification for taking this action?
4. What are the next steps NMFS will take?

    This section includes information on the fishing year (FY) 2013 
remedy and information about carryover accounting for FY 2014 and 
beyond. Additional information on how this rule complies with 
applicable law is provided in the Classification section.

1. What action is being taken by this rule?

    As a result of the Court order and remand in Conservation Law 
Foundation v. Pritzker, et al., we are implementing regulations that 
hold sectors accountable for using carryover of annual catch 
entitlement (ACE) from FY 2012 in FY 2013. The Court invalidated the 
carryover measures implemented in association with Framework Adjustment 
50 (FW 50) to the NE Multispecies Fishery Management Plan (FMP) because 
the measures failed to prevent total potential catches of certain 
stocks (ACEs plus carryovers) from exceeding their annual biological 
catches (ABCs). This action implements revised carryover measures for 
FY 2013 to comply with the Court's findings. The action does not delete 
the specific regulations invalidated by the Court at Sec.  
648.87(b)(1)(i)(C) because they were already removed, inadvertently, 
when FW 51 measures were implemented on May 1, 2014. This action 
requires an accountability measure for a sector that harvests its 
carryover catch from FY 2012 of a stock in FY 2013 if the cumulative 
sub-annual catch limit (ACL) for all sectors, and, the overall ACL of 
such stock is exceeded. The accountability measure is a pound-for-pound 
reduction (or ``payback'') of that sector's FY 2014 ACE for an 
applicable stock equal to the amount of the carryover used after 
deducting a de minimis amount.
    The following stepwise evaluation process provides a detailed 
explanation of when and how the payback accountability measure would be 
triggered and assessed:
    Step 1: Has the total fishery-level ACL for a stock been exceeded?
     No--There is no reduction in FY 2014 ACE for that stock 
required (i.e., no repayment required). Other components of the fishery 
underutilized their available catch limits for that stock sufficient to 
offset any carryover used.
     Yes--Proceed to step 2.
    Step 2: Has the sector sub-ACL (i.e., sum total of all sector ACE) 
been exceeded?
     No--There is no reduction in FY 2014 ACE for that stock 
required (i.e., no repayment required). Even though the total fishery-
level ACL was exceeded, sectors collectively did not exceed their sub-
ACL for that stock. While some sectors may have used carryover for that 
stock, other sectors did not or underutilized available ACE for that 
stock by enough to offset the carryover used, resulting in total catch 
less than the sub-ACL.
     Yes--Proceed to step 3.
    Step 3: After sectors' FY 2013 catch reconciliation with NMFS has 
occurred, determine which sectors used FY 2012 carryover ACE for a 
stock. For each of those sectors, determine the amount of

[[Page 36434]]

carryover used that must be deducted from that sector's FY 2014 ACE as 
follows:
     Step 3a: Subtract the de minimis carryover amount for that 
stock from the carryover amount used by the sector. The de minimis 
amount was recently determined to be 1 percent of the FY 2013 sector 
sub-ACL subdivided to the sectors according to their percent sector 
contribution per stock.
     Step 3b: Reduce the sector's FY 2014 ACE for that stock by 
the amount calculated in Step 3a. This is the equivalent to a pound-
for-pound payback of FY 2012 carryover used minus the de minimis 
allowance.

2. What are the events and background that led to this rule becoming 
necessary?

    We took action in May 2013 to clarify how unused multispecies 
sector ACE carried over from FY 2012 for use in FY 2013 would function. 
The clarification was made using Magnuson-Stevens Act section 305(d) 
authority and was put in place as part of the rulemaking for FW 50 to 
the FMP. The clarification described how carryover catch would be 
counted in evaluating if accountability measures were triggered because 
ACLs had been exceeded. In the FW 50 rulemaking, we also clarified how 
carryover accounting and accountability would function for FY 2014 and 
beyond. The FW 50 interim final rule published on May 3, 2013 (78 FR 
26172), and the final rule published on August 29, 2013 (78 FR 53363).
    Regulations implementing FW 50 measures stated that FY 2013 was the 
last year for which carried over catch, if used by sectors, would not 
be counted against ACLs to determine accountability, should overages 
occur. This had been the accounting practice since the establishment of 
the expanded sector program in 2010 (Amendment 16 to the FMP).
    In developing FY 2013 measures, we recognized that the maximum 
carryover (10 percent of FY 2012 sector ACE), if used in conjunction 
with the much lower catch limits being put in place, could cause 
overages of the ACL, ABC and, for one stock, the overfishing limit 
(OFL). We explained these concerns in the FW 50 rulemaking. We put in 
place measures to maintain the previously described system in which 
carryover catch was not involved in the accountability measures 
evaluation. This was intended to be a transition year designed to help 
mitigate the negative impacts of much lower catch limits being 
implemented for FY 2013. Our general rationale in continuing this 
carryover approach for one more year was to avoid potential negative 
impacts on safe at-sea operations at the end of the fishing year and on 
sectors involving carryover use, leases, or trades that would result 
from a sudden, late-season change in carryover accounting practices. We 
also took emergency action to reduce the amount of Gulf of Maine cod 
carryover so that OFL would not be exceeded if available carryover and 
the ACL were fully utilized.
    Our clarifying action in FW 50 also specified new carryover 
accountability measures for FY 2014 and beyond. We put in place 
measures that specified carryover catch, except for a nominal (``de 
minimis'') amount would be considered in determining accountability for 
catch limit overages under certain conditions. Specifically, carryover 
used would be subject to a pound-for-pound reduction in the next year's 
ACE for that stock when the total ACL is exceeded for a stock. A de 
minimis amount of used carried over catch would be exempt from 
reduction if the accountability measure was triggered. We exempted this 
small amount of carryover from the accountability measure so fishermen 
could plan for safe end-of-year fishing.
    The FY 2013 carryover and other measures implemented by us in the 
FW 50 rules were challenged by the Conservation Law Foundation in U.S. 
District Court (District of Columbia).\1\ On April 4, 2014, the U.S. 
District Court for the District of Columbia found that the FY 2013 
carryover provisions violated the Magnuson-Stevens Act because the 
measures allowed for potential total catch levels (allocated sector 
ACEs plus 2012 carryover) to exceed the ABC. The Court vacated FY 2012 
carryover provisions and remanded the issue to us to implement measures 
to prevent catches due to carryover from exceeding ABCs for each stock 
and to account for any overages of FY 2013 catch limits. The Court 
acknowledged that it was unlikely we could implement regulations to 
prevent catches from exceeding ABC before April 30, 2014, the end of FY 
2013. The FY 2013 ABCs are available in the Framework Adjustment 50 
interim final rule (May 3, 2013; 78 FR 26172). The Court noted that we 
could still implement measures to account and make-up for any overages 
of catch limits through a payback that would reduce 2014 sector 
allocations. The Court required us to notify the sectors and others as 
quickly as possible about the Court Order and our need to implement 
remedial measures to address the Order. The Court also expressed 
concern about minimizing disruption to the fishing industry in light of 
its ruling being issued with only weeks remaining in FY 2013.
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    \1\ Conservation Law Foundation v. Pritzker, et al. (Case No. 
1:13-CV-0821-JEB)
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    We initially notified sector managers of the Court's decision on 
the day it was issued, April 4, 2014. An information bulletin was 
distributed to the industry and public on April 16, 2014, outlining 
details of the Court's decision and providing information on our 
initial plan to address the remand. This bulletin explained our intent 
to apply the FW 50 approach for FY 2014 and beyond as the FY 2013 
carryover response. Under this approach, sectors using carryover could 
be held accountable for FY 2012 carryover used if the total catch 
exceeded the total stock-level FY 2013 ACL.
    After substantial input from sectors, the New England Fishery 
Management Council, and others, a subsequent bulletin was issued on May 
6, 2014, that modified the initial information. We outlined the 
modified approach for responding to the Court remand based on a two-
tiered accountability evaluation that is being implemented by this 
rule. That is, sectors that used FY 2012 carryover ACE in FY 2013 for a 
particular groundfish stock will be held accountable to pay back the 
carryover used, except for a de minimis amount, from their FY 2014 ACE 
only if both the total ACL and sector sub-ACL are exceeded.

3. What is the justification for taking this action?

    Section 305(c) of the Magnuson-Stevens Act authorizes NMFS, through 
delegation from the Secretary of Commerce, to take emergency action 
outside the Council process if the Secretary finds that an emergency 
involving a fishery exists. See, 16 U.S.C. 1855(c)(1) and (2). We 
previously issued guidance defining when ``an emergency'' involving a 
fishery exists. 62 FR 44421; August 21, 1997. This guidance defines an 
emergency as a situation that (1) arose from recent, unforeseen events, 
(2) presents a serious conservation problem in the fishery, and (3) can 
be addressed through interim emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and the deliberative consideration of the impacts on 
participants to the same extent as would be expected under the formal 
rulemaking process. This action satisfies these criteria.
    The April 4, 2014, decision from the U.S. District Court for the 
District of Columbia was both recent and unforeseen. The decision and 
order

[[Page 36435]]

requires immediate action on our part to address what the Court found 
was a serious conservation problem. The FY 2013 carryover system 
provided a possibility that sectors could harvest fish in excess of the 
ABC.
    The need to quickly provide regulatory information on the FY 2012 
to FY 2013 carryover catch without the opportunity for prior public 
comment, as more fully discussed below in the CLASSIFICATION section, 
outweighs the value of the benefits that would be provided by standard 
Administrative Procedure Act notice-and-comment rulemaking. We have 
little discretion in complying with the Court's vacatur and remand. The 
Court decision stated that we violated the Magnuson-Stevens Act by 
allowing the carryover approach for FY 2013 as outlined in FW 50 
because of the potential of harvesting fish stocks in excess of their 
ABCs. The scope of options that could be developed by us to address the 
remand were limited to accountability changes given the after-the-fact 
nature (i.e., rulemaking after the fishing year ended) and the need to 
ensure consistency with the FMP, National Standard 1 guidelines, and 
the Court's decision. The Court clearly articulated the need to 
expedite explanations of the impact to carryover resulting from the 
vacatur decision and for rulemaking to be completed in a timely manner 
for adequate accountability measures and to minimize disruptions to the 
fishing industry. Based on communications with sector managers and 
plaintiff Conservation Law Foundation following the April 16 bulletin, 
we revised the initial remand approach by providing some additional 
flexibility in the two-tiered approach (i.e., triggering accountability 
if both the total ACL and sector sub-ACL are exceeded). This approach 
maintains accountability at the ACL level, consistent with both the FMP 
and National Standard 1 guidelines. We believe that this approach also 
satisfies the Court's remand. Given the unforeseen circumstances, the 
limited scope of options available to address the remand, and the need 
to expeditiously implement regulations to address legal and 
conservation concerns, the use of Magnuson-Stevens Act section 305(c) 
rulemaking is necessary and justified.
    We are also relying on the authority of section 305(d) of the 
Magnusson-Stevens Act to implement this action because that was the 
authority used to implement the 2013 carryover measures. It is 
appropriate to make these changes under the same authority. 16 U.S.C. 
1855(d). Section 305(d) allows us to issue regulations to carry out a 
fishery management plan in accordance with the Magnuson-Stevens Act. In 
this case, carryover accounting must be changed to respond to the 
Court's order finding the FY 2013 approach violated the Magnuson-
Stevens Act.

4. What are the next steps NMFS will take?

Determining Whether the 2013 Carryover Accountability Measures Is 
Triggered

    Currently, catch information for FY 2013 is incomplete and it is 
not possible to fully determine if carryover-related accountability 
triggers have been or will be met in FY 2013. Final FY 2013 catch 
accounting for all fishery components, including information on state 
water and other fishery sub-component catch, will be available in 
September. In addition to modifications already implemented for the 
Weekly Sector ACE Comparison Reports that show catch, carryover, and 
the de minimis amount, per stock by sector, we will provide specific 
details if any accountability triggers are met, which would result in 
sectors having to pay back overages from FY 2014 ACE. We will enact the 
payback reduction of FY 2014 ACE, if necessary, through rulemaking. 
Further information on this process will be conveyed in Greater 
Atlantic Region Information Bulletins, as needed.
    Based on catch information available through June 11, 2014, none of 
the ABCs for any of the stocks allocated to sectors have been exceeded 
due to recreational catch, except for Gulf of Maine haddock. The sector 
catch for most stocks remains below the sector sub-ACL meaning that the 
second criterion has not been met (i.e., exceeding sector sub-ACL) and 
no carryover-related accountability measure will be triggered even if 
the final total catch is above the total ACL. It is noteworthy that 
there are accountability measures that may still be enacted if the 
total catch does exceed ACL. Three stocks: Gulf of Maine haddock, 
American plaice, and witch flounder, all had varying levels of 
carryover use in FY 2013. Although the overall ACL for Gulf of Maine 
haddock has been exceeded, the sector sub-ACL has not. Thus, the 
carryover-repayment accountability measure is not triggered. American 
plaice total sector catch is also slightly below the sub-ACL even 
though some sectors made use of carryover. The sector sub-ACL for witch 
flounder has been exceeded but the overall ACL has not. Based on 
currently available information through June 11, 2014, the 
accountability triggers have not been met for any stock and no payback 
reduction of FY 2014 ACE for a stock has been determined to be 
necessary. It is possible that 6 sectors may be required to repay 
approximately 60,000 lb (27,216 kg) of carryover used if the total ACL 
is determined to have been exceeded when final catch data are available 
later this fall. We intend to update this information frequently as 
additional data become available.
    Carryover Accounting for FY 2014 and Beyond. The Court decision was 
clear that we could not permit the total potential catch (i.e., the 
total of the ACL plus available carryover) to exceed the ABC for any 
given stock. The current FY 2014 carryover system was developed before 
the decision does not take into account the court's findings.
    We will be providing guidance to the Council on what may be 
necessary to address the inconsistency between current carryover 
provisions and the Court's decision. This guidance may include advice 
that the Council take action to modify the FMP so carryover is 
consistent with the Court's decision. In the meantime, we may have to 
take action to ensure that potential catch does not exceed ABC for any 
particular stock in FY 2014.

Classification

    The Assistant Administrator Fisheries, NOAA, finds that it is 
impracticable, unnecessary, and contrary to the public interest to 
provide for prior notice and an opportunity for public comment. The 
opportunity for public comment, pursuant to authority set forth at 5 
U.S.C. 553(b)(B), would be unnecessary, impracticable, and contrary to 
the public interest because NMFS has no discretion in implementing the 
measures of this rule. The changes implemented by this rule are 
necessary to respond immediately to a court-ordered remand. As such, 
the scope of options is very narrow and additional public comment is 
largely unnecessary given the lack of discretion available to develop 
alternative approaches that would satisfy the remand. Furthermore, the 
Court expressly stated that public notification and rulemaking should 
occur quickly as the remand was rendered with less than a month of the 
fishing year remaining. It would be unreasonable to delay rulemaking 
unnecessarily as sectors need to understand the implications of the 
Court decision and NMFS' approach to resolving the remand. For a 
limited time in the beginning of FY 2014, sectors have an opportunity 
to reconcile overages by trading or leasing ACE among themselves. It is 
important that sectors quickly understand how catch accounting is 
changed by this rule so they may pursue reconciliation options.

[[Page 36436]]

While this information was previously provided to sectors, it is 
necessary to finalize the regulations that put in place the process 
NMFS outlined to the Court, sectors, and the public. It is also 
important that NMFS provide information on how the remaining accounting 
process will occur, which is also provided in this rule. To the extent 
that flexibility in the measures could be provided, NMFS has done so. 
While formal public comment was not sought through rulemaking, NMFS did 
consider feedback on potential approaches to satisfy the remand, 
provided by the plaintiffs Conservation Law Foundation, sector 
managers, the Council, and the public.
    Similarly, the need to implement these measures in a timely manner 
to respond to the Court constitutes good cause under authority 
contained in 5 U.S.C. 553(d)(3), to make this rule effective upon 
publication in the Federal Register. Given the need to respond to the 
Court remand and to inform the public of the measures NMFS intended to 
implement through this rule so that they may plan for the changes, the 
provisions of this rule have already been conveyed to the public. 
Additional delay in making this rule's measures effective would be 
contrary to the public interest. Additionally, the public has already 
been notified in advance of the rule's publication what measures would 
be put in place. This is highly unusual, but was necessary given the 
timing of the Court's decision relative to the end of the fishing year.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    This emergency rule 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. Accordingly, no 
Regulatory Flexibility Analysis is required and none has been prepared.

 List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 23, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons stated 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.  648.87, effective June 27, 2014, remove paragraph 
(b)(1)(i)(C), and add paragraphs (b)(1)(i)(C) heading, (b)(1)(i)(C)(1) 
introductory text, (b)(1)(i)(C)(1)(i) through (ii), and (b)(1)(i)(C)(2) 
to read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (C) Carryover. (1) With the exception of GB yellowtail flounder, a 
sector may carryover an amount of ACE equal to 10 percent of its 
original ACE for each stock that is unused at the end of one fishing 
year into the following fishing year.
    (i) Eastern GB Stocks Carryover. Any unused ACE allocated for 
Eastern GB stocks in accordance with paragraph (b)(1)(i)(B) of this 
section will contribute to the 10 percent carryover allowance for each 
stock, as specified in this paragraph ((b)(1)(i)(C)(1)), but will not 
increase in individual sectors allocation of Eastern GB stocks during 
the following year.
    (ii) This carryover ACE remains effective during the subsequent 
fishing year even if vessels that contributed to the sector allocation 
during the previous fishing year are no longer participating in the 
same sector for the subsequent fishing year.
    (2) Carryover accounting. (i) [Reserved]
    (ii) Beginning in FY 2014, carryover of a particular stock 
attributed to a sector, other than the NMFS-specified de minimis 
amount, shall be counted against the sector's ACE for purposes of 
determining an overage subject to the AM in paragraph (b)(4)(iii) of 
this section if the overall stock-level ACL has been exceeded.
    (iii) NMFS shall determine and announce the de minimis amount for 
FY 2014 and may modify each subsequent year. De minimis determinations 
shall be made consistent with the APA.
    (iv) The Council may request, on an annual basis, for NMFS to 
reduce the amount of the available eligible carryover amount to ensure 
the total potential catch, the stock-level ACL plus the carryover 
amount, does not exceed the stock overfishing limit. Any such reduction 
of carryover amount shall be done consistent with the APA.
* * * * *

0
3. In Sec.  648.87, effective June 27, 2014, through December 24, 2014, 
add paragraph (b)(1)(i)(C)(2)(i) to read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (C) * * *
    (2) * * * (i) For FY 2013, carryover of a particular stock from FY 
2012 attributed to a sector, other than the NMFS-specified de minimis 
amount, shall be counted against the sector's ACE for purposes of 
determining an overage subject to the AM in paragraph (b)(4)(iii) of 
this section if both the overall stock-level ACL and sector sub-ACL for 
a particular stock have been exceeded.
* * * * *
[FR Doc. 2014-15153 Filed 6-26-14; 8:45 am]
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