[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Rules and Regulations]
[Pages 33027-33030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11495]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 200522-0145]
RIN 0648-BJ80


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Extend Portions of the Fishing Year 2019 Scallop Carryover 
Provisions

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

ACTION: Temporary rule; emergency action.

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SUMMARY: This temporary rule implements emergency measures under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act to extend portions of the fishing year 2019 carryover provisions in 
the Atlantic Sea Scallop Fishery Management Plan into the 2020 fishing 
year. This action is necessary to provide the scallop fleet with the 
opportunity to land allocations that otherwise may have gone 
unharvested and reduce economic harm to the scallop industry.

DATES: Effective June 1, 2020, through November 28, 2020. Comments must 
be received by July 1, 2020.

ADDRESSES: For this action, NMFS developed a Supplemental Impact Report 
(SIR) for the Environmental Assessment (EA) for Framework 32 to the 
Atlantic Sea Scallop 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-
2020-0072, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0072, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Email: Submit email comments to [email protected]. 
Include ``Comments on Emergency Rule to Extend Scallop Carryover'' in 
the subject line.
    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: Travis Ford, Fishery Policy Analyst, 
978-281-9233.

SUPPLEMENTARY INFORMATION: 

Background

    On April 1, 2019, NMFS implemented Framework Adjustment 30 to the 
Scallop FMP (84 FR 11436; March 27, 2019), which set specifications for 
fishing year 2019, including carryover provisions for limited access 
general category (LAGC) individual fishing quota (IFQ), sea scallop 
access area trip allocations, and research set-aside (RSA). On April 1, 
2020, NMFS implemented Framework Adjustment 32 to the Scallop FMP (85 
FR 17754; March 31, 2020), which set specifications for the 2020 
fishing year. Typically, a limited access vessel has 60 days (until May 
30) to fish any access area carryover from the previous fishing year. 
An IFQ vessel can carry over up to 15 percent of the vessel's total 
IFQ, which includes the vessel's original IFQ plus the total amount of 
IFQ transferred to such vessel minus the total IFQ transferred from 
such vessel (either temporary or permanent), into the next fishing 
year. RSA projects are generally awarded in the spring, and the 
recipients have until June 30 the following fishing year to land the 
awarded scallops.
    Toward the end of the 2019 fishing year (March 2020), the scallop 
industry began to experience negative impacts due to ongoing health 
mandates and travel restrictions that made it difficult for vessels to 
make trips. These impacts include disruptions in getting supplies and 
the inability for crew to access ports.
    At its April 15, 2020, meeting, the Council requested that NMFS 
implement the following measures through an emergency action:
     All 2019 access area carryover pounds and unharvested RSA 
compensation pounds from fishing year 2019 will be available for 
harvest for 180 days in fishing year 2020.
     The Nantucket Lightship-West Access Area (NLS-West) would 
remain an access area during fishing year 2020 for the extent of this 
emergency action.
     All LAGC IFQ vessels would be able to roll forward all 
fishing year 2019 unharvested quota for 180 days into fishing year 
2020.
    After considering the Council's request, NMFS is extending the 
carryover provisions as requested by the Council with minor changes. 
The Council's emergency action request would have extended these 
carryover provisions through September 28, 2020. The rationale from the 
Council's emergency action request stated that, ``Fishing unharvested 
fishing year 2019 allocations during the fall months could have 
negative impacts on the scallop resource considering these months are 
known to have the lowest meat yields in comparison to the rest of the 
year. Fishing when meat yields are lower means catch rates will be 
reduced, translating to greater fishing mortality, greater area swept, 
and negative impacts to the scallop resource relative to if fishing 
occurred during the spring/summer months.'' On Georges Bank, scallop 
meat yields sharply decline in September. Further, observer data from 
the NLS-West (the area where the bulk of the carryover allocation 
remains, ~3.2 million lb (~1,451 mt) from fishing years 2018 and 2019 
show a spike in discard/kept all rates for flatfish beginning in 
September. For these reasons, this action allows LAGC IFQ vessels to 
carryover all fishing year 2019 unharvested quota into fishing year 
2020, but only extends the access area

[[Page 33028]]

and RSA carryover provisions to August 31, 2020.
    This action:
     Allows limited access general category individual fishing 
quota vessels to carryover all fishing year 2019 unharvested quota into 
fishing year 2020;
     Allows any access area carryover pounds and unharvested 
research set-aside compensation pounds from fishing year 2019 to be 
available for harvest through August 31, 2020; and
     Extends the time period vessels may utilize their 2019 
access area allocation in the Nantucket Lightship-West Access Area 
(NLS-West) through August 31, 2020, and then close the area on 
September 1, 2020, in order to minimize unwanted bycatch.
    Although the FMP currently provides for some carryover of unused 
2019 fishing allocations, the amount of IFQ carryover is limited to 15 
percent of a vessel's total IFQ, and access area carryover is only 
authorized until May 30, 2020. Extending these carryover provisions 
further into fishing year 2020 gives vessels more flexibility to 
harvest some carryover that would otherwise be lost (~5.2 million lb 
fleet-wide), to land this allocation at the most opportune time, and to 
avoid unnecessary adverse economic impacts. Overall, does not add any 
new allocation, it only extends the time period that carryover can be 
fished. Extending these carryover provisions will not cause any annual 
catch limits to be exceeded in the scallop fishery.
    NMFS's policy guidelines for the use of emergency rules (62 FR 
44421; August 21, 1997) specify the following three criteria that 
define what an emergency situation is, and justification for final 
rulemaking: (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's 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 fishing year 2019 scallop 
carryover provisions meets the three criteria for emergency action for 
the reasons outlined below.
    The emergency results from recent, unforeseen events or recently 
discovered circumstance. On March 13, 2020, a national emergency was 
declared in response to the global spread of a novel coronavirus (SARS-
CoV-2), and the outbreaks of the disease caused by this virus, COVID-
19. Days earlier, state governors across the Greater Atlantic region 
had begun declaring states of emergency in recognition of the growing 
impacts and risks of COVID-19. The scallop industry began to experience 
impacts from the COVID-19 pandemic in March 2020. These impacts were 
unforeseen during the development of Framework 30 and Framework 32 that 
included measures for the 2020 fishing year that began on April 1, 
2020.
    The emergency presents serious conservation or management problems 
in the fishery. As described above, toward the end of fishing year 2019 
(March 2020), it became more difficult for some members of the scallop 
industry to complete fishing trips and fully harvest the available 
quota. This emergency action helps prevent additional economic losses 
to industry participants, shoreside businesses, and fishing communities 
and help offset lost fishing opportunities at the end of the 2019 
fishing year. Ensuring that outstanding fishing year 2019 scallop 
fishery allocations can be harvested when meat yields are high during 
the summer months will also prevent negative impacts to the scallop 
resource and other non-target stocks relative to if they were harvested 
during the early spring or fall. This action also directly addresses 
adverse effects to health of participants in the scallop fishery 
because vessels are afforded flexibility and do not feel obligated to 
inhabit close quarters on a fishing vessel when the risk of exposure to 
COVID-19 remains heightened.
    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. Although the Council has the authority to develop a 
management action to extend the availability of 2019 carryover, an 
emergency action can be developed and implemented by NMFS more swiftly 
than a Council action that is subject to procedural and other 
requirements not applicable to the Secretary. If the normal regulatory 
process is used to revise the carryover provisions, it would take 
substantially longer for the revised provisions to be implemented and 
could prevent vessels from harvesting any lost carryover at an 
opportune time. Harvesting scallops when meat yields are high (i.e., 
June and July) reduces both mortality on scallops and negative impacts 
on other biological resources. It is not possible to implement these 
changes through rulemaking following the normal Council process because 
the Council does not meet again until June. If implemented through 
emergency action, it may be possible for vessels to maintain any 
carryover that would have been lost, land this allocation when meat 
yields are higher, and avoid unnecessary adverse economic impacts.

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 for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(b)(B) that it is contrary to the public interest and 
impracticable to provide for prior notice and opportunity for the 
public to comment. As more fully explained above, the reasons 
justifying promulgation of this rule on an emergency basis make 
solicitation of public comment contrary to the public interest.
    Fishing year 2019 access area carryover would expire on May 30, 
2020, and RSA carryover would expire on June 30, 2020. If this action 
is delayed beyond May 30, 2020, limited access vessels would 
temporarily lose their carryover allocation. Not taking immediate 
action would lead to conservation and management problems in the 
fishery. The start of the fishing year aligns closely with seasonal 
trends of increasing meat yield, which peak between the spring and mid-
summer months depending on the area. Fishing during this time of year 
is beneficial because scallop meats are larger than in the fall and 
winter months. Focusing effort during this time of year reduces impacts 
to the scallop resource as overall fishing mortality is reduced. 
Further, taking immediate action allows the fleet to catch this 
carryover in June and July, when meat weight are highest. This would 
reduce the dredge hours necessary to harvest the allocation

[[Page 33029]]

compared to harvesting the scallops only in April and May. Reducing 
dredge hours has benefits for non-target species, protected resources, 
and essential fish habitat. This action could not have been put into 
place sooner to allow for a 30-day delayed effectiveness because this 
event was unforeseen and did not provide enough time for NMFS to 
publish this temporary rule by May 30, 2020, the end of the access area 
carryover period. Delaying the implementation of this action for 30 
days would reduce positive economic benefits to the scallop fleet that 
this rule is intended to provide.
    Although this action is being implementing without notice and 
comment, NMFS is seeking public comment on this rule for purposes of 
assessing the need to extend the rule if other measures are not 
implemented before the expiration of this rule.
    For these same reasons stated above, pursuant to 5 U.S.C. 
553(d)(3), the Assistant Administrator finds good cause to waive the 
full 30-day delay in effectiveness for this rule. This action is 
undertaken at the request of the Council. The Council urged that NMFS 
implement this action quickly in order to minimize any economic impacts 
on the scallop fleet as a result of ongoing health mandates and travel 
restrictions and to help offset lost fishing opportunities at the end 
of the 2019 fishing year. Moreover, it would be contrary to the public 
interest if this rule does not become effective immediately because 
allowing carryover allocations to expire and then reinstating them 
would cause confusing for the fleet and enforcement and create 
additional regulatory and administrative burden. For these reasons, 
there is good cause to waive the requirement for delayed effectiveness.
    This action is being taken pursuant to the emergency provision of 
MSA and is exempt from review under Executive Order 12866.
    Because notice and opportunity for comment are not required 
pursuant to 5 U.S.C. 553 or any other law, the analytical requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are 
inapplicable. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.
    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 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: May 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.

Subpart D--Management Measures for the Atlantic Sea Scallop Fishery

0
2. In Sec.  648.53, suspend paragraph (h)(2)(v)(A) and add paragraph 
(h)(2)(v)(B) to read as follows:


Sec.  648.53  Overfishing limit (OFL), acceptable biological catch 
(ABC), annual catch limits (ACL), annual catch targets (ACT), annual 
projected landings (APL), DAS allocations, and individual fishing 
quotas (IFQ).

* * * * *
    (h) * * *
    (2) * * *
    (v) * * *
    (B) With the exception of vessels that held a Confirmation of 
Permit History as described in Sec.  648.4(a)(2)(ii)(L) for the 
entirety of fishing year 2019, LAGC IFQ vessels that have unused IFQ on 
the last day of March of fishing year 2019 may carry 100 percent of the 
vessel's unharvested IFQ into fishing year 2020.
* * * * *

0
3. In Sec.  648.56, suspend paragraph (f) and add paragraph (i) to read 
as follows:


Sec.  648.56  Scallop research.

* * * * *
    (i) If all fishing year 2019 RSA pounds awarded to a project cannot 
be harvested during the 2019 fishing year, RSA TAC awarded to that 
project may be harvested through August 31, 2020.

0
4. In Sec.  648.59, suspend paragraphs (b)(3)(i)(B)(1)(ii), 
(b)(3)(i)(B)(2)(ii), and (c) revise paragraph (b)(3)(i)(B)(1)(iii), and 
add paragraphs (b)(3)(i)(B)(2)(iv), and (h) to read as follows:


Sec.  648.59  Sea Scallop Rotational Area Management Program and Access 
Area Program requirements.

* * * * *
    (b) * * *
    (3) * * *
    (i) * * *
    (B) * * *
    (1) * * *
    (iii) For the 2019 fishing year and through August 31 of the 2020 
fishing year, a full-time limited access vessel may choose to land up 
to 18,000 lb (8,165 kg) of any unharvested 2019 Closed Area I Access 
Area allocation from any access area made available in the 2019 fishing 
year as described in the Sec.  648.60. For example, a vessel could take 
a trip in the Closed Area I Access Area and land 10,000 lb (4,536 kg) 
from that area, leaving the vessel with 8,000 lb (3,629 kg) of the 
Closed Area I flex allocation available, which could be landed from any 
other available access area as described in this section, provided the 
18,000-lb (8,165-kg) possession limit is not exceeded on any one trip.
* * * * *
    (2) * * *
    (iv) For the 2019 fishing year and the first through August 31 of 
the 2020 fishing year, a part-time limited access vessel may choose to 
land up to 17,000 lb (7,711 kg) of its fishing year 2019 Closed Area I 
Access Area allocation from any access area made available in the 2019 
fishing year as described in the Sec.  648.60(a), (c), and (f). For 
example, a vessel could take a trip in the Closed Area I Access Area 
and land 10,000 lb (4,536 kg) from that area, leaving the vessel with 
7,000 lb (3,175 kg) of the Closed Area I flex allocation available, 
which could be landed from any other available access area as described 
in this section, provided the possession limit is not exceeded on any 
one trip.
* * * * *
    (h) Fishing year 2019 Scallop Access Area scallop allocation 
carryover. For fishing year 2019 Access Area scallop allocation 
carryover, with the exception of vessels that held a Confirmation of 
Permit History as described in Sec.  648.4(a)(2)(i)(J) for the entire 
fishing year preceding the carry-over year, a limited access scallop 
vessel operator may fish any unharvested Scallop Access Area allocation 
from fishing year 2019 through August 31, 2020, unless otherwise 
specified in this section. However, the vessel may not exceed the 
Scallop Rotational Area trip possession limit.
* * * * *

[[Page 33030]]


0
5. In Sec.  648.60, suspend paragraph (f) and add paragraph (i) to read 
as follows:


Sec.  648.60  Sea Scallop Rotational Areas.

    (i) Nantucket Lightship West Scallop Rotational Area. The Nantucket 
Lightship West Scallop Rotational Area is defined by straight lines 
connecting the following points in the order stated (copies of a chart 
depicting this area are available from the Regional Administrator upon 
request):

                        Table 9 to Paragraph (i)
------------------------------------------------------------------------
                  Point                     N latitude      W longitude
------------------------------------------------------------------------
NLSW1...................................      40[deg]20'      70[deg]00'
NLSW2...................................   40[deg]43.44'      70[deg]00'
NLSW3...................................   40[deg]43.44'      69[deg]30'
NLSW4...................................      40[deg]20'      69[deg]30'
NLSW1...................................      40[deg]20'      70[deg]00'
------------------------------------------------------------------------

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[FR Doc. 2020-11495 Filed 5-28-20; 4:15 pm]
 BILLING CODE 3510-22-P