[Federal Register Volume 85, Number 251 (Thursday, December 31, 2020)]
[Rules and Regulations]
[Pages 86849-86853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28898]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 201222-0352]
RIN 0648-BK16


Fisheries of the Northeastern United States; Increase in Sector 
Carryover of 2019 Annual Catch Entitlements and Carryover of Unused 
Leased-In Days-at-Sea by Common Pool Vessels

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

ACTION: Temporary rule; emergency action.

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SUMMARY: This temporary rule implements emergency measures under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act to revise portions of the fishing year 2019 carryover provisions in 
the Northeast Multispecies Fishery Management Plan into fishing year 
2020. This action is necessary to address an emergency presenting 
conservation and management plans to the fishery. This action is 
intended to mitigate economic harm to the Northeast multispecies 
fishery participants by providing the opportunity to use sector Annual 
Catch Entitlement and unused leased-in Days-at-Sea that would have 
otherwise may have gone unused.

DATES: This action is effective December 31, 2020, through June 29, 
2021. Comments must be received by February 1, 2021.

ADDRESSES: For this action, NMFS developed a Supplemental Impact Report 
(SIR) for the Environmental Assessment (EA) for Framework Adjustment 59 
to the Northeast Multispecies Fishery Management Plan (FMP) that 
describes the measures in this temporary rule. Copies of the SIR and 
the Regulatory Impact Review of this rulemaking are available on the 
internet at https://www.fisheries.noaa.gov/region/new-england-mid-atlantic.
    You may submit comments on this document, identified by NOAA-NMFS-
2020-0162, by the following method:

[[Page 86850]]

     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0162
    2. Click the ``Comment Now!'' icon, complete the required fields, 
and
    3. Enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Spencer Talmage, Fishery Management 
Specialist, phone: 978-281-9232; email: [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