2014-05819. 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:

Proposed rule; request for comments.

SUMMARY:

NMFS is proposing two actions 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 better ensure accurate and timely Eastern U.S./Canada Area catch reporting for quota monitoring purposes. The proposed 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). The intended effect of these actions is to inform the public and solicit public comment on NMFS's proposed measures.

DATES:

Comments must be received by April 16, 2014.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2013-0179, by any 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-2013-0179, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930.

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 general 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.

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: [phone]. For information on the unused ACE de minimis carryover amount, contact Mike Ruccio, Fishery Policy Analyst, phone: [phone].

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, and that the regulatory text was inadvertently left unchanged from pre-Amendment 16 measures.

In commenting on a proposed rule (78 FR 18188; March 25, 2013) that 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. 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, as well as suggesting that the requirement for daily reporting of catches in the Eastern Area could be reinstituted as allowed under Amendment 16 through Regional Administrator authority.

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 to finalize 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 (§ 648.85(a)(3)(ii)(A)).

The Amendment 16 final rule published on April 9, 2010 (75 FR 18262) 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 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 § 648.85(a)(3)(v). As part of a rulemaking on August 29, 2013 (78 FR 53363), we announced our intention to revert to the original requirement for sector vessels declared to fish in the Eastern U.S./Canada Area to submit daily VMS catch reports. We did not, nor do not, intend to change this requirement for vessels declared only into the Western U.S./Canada Area. Because the daily reporting requirement is already specified in the regulations (§ 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 proposes to modify the reporting requirement of § 648.85(a)(3)(v) such that only sector vessels that have declared into the Eastern U.S./Canada Area would be required to submit daily catch reports. The proposal also will clarify 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 Management Area.

De Minimis Unused Sector ACE Carryover. Sectors are permitted to carry forward up to 10 percent of unused ACE from one FY to the next for many groundfish stocks. The substantial reduction in catch levels from FY 2012 to FY 2013 made clear that the way carryover amounts had been accounted for in previous FYs could, in some situations, result in a potential catch (i.e., available fishery-level annual catch limit (ACL) plus 10-percent carryover from previous year sector sub-ACL) of some stocks that could exceed the established Acceptable Biological Catch (ABC), and possibly the Overfishing Limit (OFL).

To address this possibility, we issued, in conjunction with the rule implementing Framework Adjustment 50 for FY 2013, 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 § 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-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. Prior to the clarification, it was unclear from Amendment 16 whether accountability measures should apply to carried-over catch. NMFS' clarification was designed to make the carryover program more consistent with the National Standard 1 guidelines (§ 600.310(a)). Substantial explanation of the carryover program accounting is provided in Framework 50 and the associated rulemaking documents and is not repeated here.

Given the need to complete other components of the Framework 50 rulemaking for timely implementation at the start of the FY 2013, NMFS was unable to fully develop and analyze an appropriate de minimis level in conjunction with the framework rulemaking. Instead, we established a process wherein we would conduct proposed rulemaking for an appropriate de minimis carryover level. This is that action.

2. Proposed Measures

Eastern U.S./Canada Area Daily VMS Reporting. We propose to require sector vessels declared to fish in the Eastern U.S./Canada Area to submit daily VMS catch reports. The reports would be submitted in 24-hour intervals for each day, and would be 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 § 648.10(k)(3), as instructed by the Regional Administrator.

The regulations at § 648.85(a)(3)(v) currently require sector vessels to submit daily reports if they declare in the Eastern U.S./Canada Area. As discussed in the Background above, the Amendment 16 final rule intended to remove the requirement for daily reporting, pursuant to the authority granted to the NMFS Regional Administrator by the FMP, as it was determined at that time that the weekly sector catch report was sufficient. However, this change was not reflected in the regulatory text, and so the current proposal to revert to the original requirement of daily reporting does not require a substantive change to the regulations for vessels declared into the Eastern U.S./Canada Management Area. However, although the current regulatory text requires daily reporting for vessels declared only into the Western U.S./Canada Area, weekly sector catch reports have been determined to be sufficient, and therefore the regulatory text at § 648.85(a)(3)(v) will be modified to delete the daily reporting requirement for such vessels.

Pursuant to the regulations at § 648.10(k)(2), vessels who 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. As proposed in this rule, by reverting to the daily reporting requirement, a sector vessel on a trip declared into the Eastern U.S./Canada Area and fishing in multiple Broad Stock Areas would be exempt from the requirement to submit a trip-level catch report.

De Minimis Unused Sector ACE Carryover. We propose 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 amount of carryover, if used, will not be specifically counted against the sector sub-ACL for accountability purposes. The full sub-ACL would still be 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 would be counted against the sub-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 amount provided as the de minimis carryover falls within the management uncertainty buffer established for sectors. This approach better 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, we propose this approach of using 1 percent of the sector sub-ACL for the year in which carryover would be harvested would be the default de minimis amount. The actual value may vary year-to-year based on the sub-ACLs specified for the year. We propose to publish the actual de minimis amount in conjunction with either Council initiated frameworks implementing ACLs or in sector ACE adjustment rules.

As an example:

• If the FY 2014 sector sub-ACL for species X is 100 mt, the de minimis amount would be 1 mt.
• If the FY 2013 sector sub-ACL species X is 200 mt, up to 20 mt (10 percent of the FY 2013 sub-ACL) could be carried over from FY 2013 to 2014.
• Of this 20 mt, sectors would not be required to repay 1 mt (i.e., the de minimis amount) if the accountability repayment were triggered. Sectors would be required to repay up to 19 mt (i.e., the remaining carryover balance that is not considered de minimis) if the total ACL and sector sub-ACL were exceeded.

The 1-percent de minimis amount would ensure that overfishing will not occur, because the value would only be a minor portion of the Council's management uncertainty buffer that offsets the ABC and sub-ACLs. The Council has identified several unquantified management uncertainties as part of a 3 to 5-percent management uncertainty buffer. Currently, the Council uses a management uncertainty buffer of 5 percent for all but one stock. NMFS considers the 1-percent amount to be de minimis because, when it is combined with the full harvest of a corresponding stock-level ACL, it does not cause the fishery ABC to be exceeded. It would cause an ACL overage in this circumstance, but only if the full de minimis carryover amounts are harvested and all of the sector sub-ACL is harvested. Even in the unlikely event that this occurs, a 1-percent de minimis overage would still be well below the 3 to 5-percent management uncertainty buffer used by the Council when it determines the ACL. Because the 1-percent de minimis amount is a minor portion of the management uncertainty buffer, NMFS would not invoke the overage payback accountability measure.

The Council is still in the process of finalizing for recommendation to NMFS the FY 2014 ABCs and ACLs for many groundfish stocks. These values will likely be finalized in late spring 2014, for use in FY 2014, which begins May 1, 2014. If the de minimis approach outlined here is adopted, NMFS will publish final de minimis values in conjunction with rules for FY 2014. In the interim, the current FY 2014 ABC and ACL values either already put in place by Framework 50 or under discussion by the Council for inclusion in Framework 51 are provided in Table 1 to show the derivation of the potential de minimis value that would result.

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

Stock or species	2014 Potential Catch Limit Information				de minimus amount and evaluation
	FY 2014 OFL	FY 2014 ABC	FY 2014 Total ACL	FY 2014 Sector sub-ACL	De Minimis Value-1 Percent of Sector sub-ACL	Total potential catch (de minimis + total ACL)	Percent of Total ACL	Percent of ABC
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
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).

To assist the public in providing effective comment on the de minimis proposal, NMFS is asking the following questions:

1. Is the concept of a de minimis carryover amount clear? Is the process we intend to use to track and account for unused ACE carryover in FY 2014 clear, including when sectors may be subject to accountability measures if carried-over catch has been harvested? If not, what needs to be clarified in the final rule?

2. Is the de minimis amount an appropriate balance between making available some amount of carryover that may be used without payback implications and providing sufficient protection to stocks so that management uncertainty offsets are maintained and overfishing does not occur?

3. Are there alternate de minimis values or derivation approaches NMFS should consider?

In responding to these questions we remind the public that full-scale revision of the Amendment 16 carryover program would require a further Council-initiated action.

We considered higher amounts as the de minimis level (e.g., 2 percent or more of the sector sub-ACL), but were concerned that a higher amount could raise the likelihood that ACLs could be exceeded. Further, a higher amount would constitute a significant portion of the management uncertainty buffer and would potentially degrade its ability to prevent overfishing. To maintain the protection of this buffer, additional carryover catch above the de minimis amount would be subject to the overage payback accountability measure. Sectors could continue to use up to the full 10 percent available as carryover, but its use would be subject to accountability measures if the fishery level ACL is exceeded.

Corrections

NMFS proposes to modify the text at § 648.14(k)(11)(iv) to clarify the reporting requirements by removing the word “landings” from the paragraph.

NMFS proposes to modify the text at § 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 would move the language explaining the Regional Administrator's authority to a new subsection (§ 648.85(a)(3)(v)(B)) with a further clarification that the Regional Administrator's authority also includes modification of reporting requirements.

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 proposed rule are consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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 proposed rule is not significant.

This proposed 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 that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed rule contains two actions: A requirement for daily VMS catch reporting for vessels declared to fish in the Eastern U.S./Canada Area; and the de minimis amount of unused FY 2013 sector 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 better ensure accurate and timely Eastern U.S./Canada Area catch reporting for quota monitoring purposes. The proposed 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 NE Multispecies FMP.

The Regulatory Flexibility Act (RFA) requires Federal agencies to consider disproportionality and profitability to determine the significance of regulatory impacts. There are no disproportionate impacts as a result of the two actions being proposed. Analyses being prepared for an upcoming multispecies action indicate 822 unique entities in the fishery, 806 of which are considered small business entities under Small Business Administration criteria and 16 that are considered large entities. These 16 large entities have ownership interest in finfish businesses, but obtain the majority of their gross sales from shellfish-related businesses. All businesses obtaining the majority of their gross sales from finfish are considered small businesses.

The change in VMS reporting frequency for vessels participating in the Eastern U.S./Canada Area will require catch data to be transmitted to NMFS once daily. Vessels participating in the overarching multispecies fishery already have onboard VMS units and submit various types of reports and declarations to participate in the fishery. The proposed change in reporting frequency implements the daily report structure contemplated in conjunction with Amendment 16 to the FMP. Previous analysis for Paperwork Reduction Act (PRA) collection Office of Management and Budged Control No. 0648-0202 estimated the cost of daily reporting as up to $1.00 per day. Vessels that have not previously submitted daily reports or that have not participated in the area will now be required to report more frequently, thereby increasing VMS operating costs. The reporting requirement would be imposed on all vessels choosing to fish in the area; fishing in the mandatory reporting area is voluntary. Moreover, as noted below, the charge is small enough and affects all vessels equally. Therefore, this rule will not result in disproportionate impacts on small entities.

In FY 2012, 62 sector vessels fished in the Eastern Area, taking a total of 398 sector trips, with an assumed length of 4 fishing days, based on the assumed trip length information used in the PRA analysis. The expected cost of sending a daily report on a per vessel basis is approximately $25.68 annually and $4.00 per trip. This cost is not expected to affect profitability for either small or large entities. Information compiled for FY 2011 in the final report on the performance of the NE multispecies fishery published by the Northeast Fisheries Science Center indicates the lowest nominal revenue from groundfish-specific landings was $730 per trip (vessels category of 30 feet (9.1m) in length overall). Thus, the cost of daily reporting will be less than 0.5 percent of the lowest average nominal revenue in the fishery. Given that larger vessels or entities whose business involves multiple vessels of varying sizes would realize even lower potential operating cost, the impacts from daily reporting relative to nominal revenue are miniscule. Vessels may also land non-groundfish species in conjunction with fishing effort in the area, further reducing the potential impact of daily reporting costs on nominal revenue. Based on this, NMFS asserts the profitability criterion is not met.

Similarly, the de minimis carryover amount does not have disproportionate impacts on small entities. Adequate revenue information is available to NMFS to ascertain the impact of de minimis carryover on regulated entities.

Prior rulemaking for Amendment 16 allowed sectors to carry over up to 10 percent of their overall allocation if, for any reason, they were unable to utilize that allocation in one FY. This allowance is designed to allow flexibility so that vessels do not fish during unsafe conditions to utilize their last units of catch allocations. The ability to carry over allocation is simultaneously constrained by a fishery-wide ACL that cannot be exceeded. Prior rulemaking created a provision for a de minimis carryover amount in excess of the ACL. This proposed rule establishes that amount at 1 percent of the upcoming FY ACL. The additional allocation, in excess of the ACL, will allow sectors and sector-enrolled entities to increase their gross sales slightly relative to being restricted to the ACL level, creating positive economic impacts for those enrolled in sectors. These benefits are not disproportionate, as the de minimis carryover amount is available to all sector-enrolled fishery participants.

For these reasons, the proposed rule, if implemented, will not have a significant economic impact on a substantial number of small entities. Accordingly, an initial regulatory flexibility analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

Dated: March 11, 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 proposed to be amended as follows:

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

2. In § 648.14, revise paragraph (k)(11)(iv) to read as follows:

§ 648.14

Prohibitions.

* * * * *

(k) * * *

(11) * * *

(iv) Reporting requirements for all persons. (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 § 648.85(a)(1), fail to report in accordance with § 648.85(a)(3)(v).

* * * * *

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

§ 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 § 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 § 648.85(a)(3)(v) in a manner consistent with the Administrative Procedure Act.

* * * * *