AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency rule; request for comments.
SUMMARY: NMFS issues an emergency rule to modify the temporary transfer provision of the Individual Fishing Quota (IFQ) Program for the fixed-gear commercial Pacific halibut and sablefish fisheries for the 2020 IFQ fishing year. This emergency rule is intended to provide flexibility to quota share (QS) holders in 2020 while preserving the long-standing objective of maintaining an owner-operated IFQ fishery in future years. This emergency rule would not modify other provisions of the IFQ Program. This emergency rule is intended to promote the goals and objectives of the IFQ Program, the Magnuson-Stevens Fishery Conservation and Management Act, the Northern Pacific Halibut Act of 1982, and other applicable laws.
DATES: Effective [insert date of publication in the Federal Register] through [insert date 180 days after date of publication in the Federal Register].
ADDRESSES:
Electronic copies of the Regulatory Impact Review (referred to as the “Analysis”) and the Categorical Exclusion prepared for this emergency rule may be obtained from http://www.regulations.gov or from the NMFS Alaska Region website at https://www.fisheries.noaa.gov/region/alaska.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this emergency rule may be submitted to NMFS at the above address; by email to OIRA_Submission@omb.eop.gov; or by fax to (202) 395-5806.
FOR FURTHER INFORMATION CONTACT: Stephanie Warpinski, 907-586-7228.
SUPPLEMENTARY INFORMATION:
The North Pacific Fishery Management Council (Council) developed the IFQ Program for the commercial Pacific halibut (halibut) and sablefish fisheries. The IFQ Program for the sablefish fishery is implemented by the Bering Sea and Aleutian Islands (BSAI) Fishery Management Plan (FMP) and Federal regulations at 50 CFR part 679 under the authority of section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The IFQ Program for the halibut fishery is implemented by Federal regulations at 50 CFR part 679 under the authority of section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act).
The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut through regulations established under the authority of the Halibut Act. The IPHC promulgates regulations governing the halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention). The IPHC's regulations are subject to approval by the Secretary of State with the concurrence of the Secretary of Commerce (Secretary). NMFS publishes the IPHC's regulations as annual management measures pursuant to 50 CFR 300.62.
Section 5 of the Halibut Act, 16 U.S.C. 773c(a) and (b), provides the Secretary with general responsibility to carry out the Convention and the Halibut Act. Section 5(c) of the Halibut Act also provides the Council with authority to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations. Regulations developed by the Council may be implemented by NMFS only after approval by the Secretary.
Background
Government health mandates and travel restrictions during the 2020 IFQ season (March 14, 2020 – November 15, 2020) may limit the ability of some fishery participants to travel to various ports in Alaska, and may constrain fishing operations while these provisions are in place. Existing regulatory limitations on the transfer of IFQ constrains the transfer of allocations to other fishery participants.
On April 7, 2020, NMFS received a request to consider emergency action under section 305(c) of the Magnuson-Stevens Act to revise the IFQ transfer provisions to provide greater flexibility to transfer IFQ to alleviate constraints imposed by ongoing health mandates and travel restrictions. On April 16, 2020, NMFS notified the Council of the request to provide an opportunity for the Council to consider the request. The Council held a special meeting on May 15, 2020, to consider this request, among other matters. The Council recommended that NMFS implement an emergency rule to provide greater flexibility to transfer IFQ.
The following sections describe the IFQ Program, the existing IFQ transfer provisions, and the emergency rule and justification for emergency action.
The IFQ Program for the management of the fixed gear (hook-and-line and pot gear) halibut and sablefish fisheries off Alaska was implemented by NMFS in 1995 (58 FR 59375; November 9, 1993). A central objective of the IFQ Program is to support the social and economic character of the fisheries and the coastal fishing communities where many of these fisheries are based.
Under the IFQ Program, access to the fixed gear sablefish and halibut fisheries is limited to those persons holding quota share (QS). NMFS issued separate QS for sablefish and halibut to qualified applicants based on their historical participation during a set of qualifying years in the sablefish and halibut fisheries. QS is an exclusive, revocable privilege that allows the holder to harvest a specific percentage of either the total allowable catch (TAC) in the sablefish fishery or the annual commercial catch limit in the halibut fishery. In addition to being specific to sablefish or halibut, QS is designated for specific geographic areas of harvest, a specific vessel operation type (catcher vessel (CV) or catcher/processor), and for a specific range of vessel sizes that may be used to harvest the sablefish or halibut (vessel category). There are four vessel categories of halibut QS: Category A shares are designated for catcher/processors, vessels that process their catch at sea (i.e., freezer longline vessels), and do not have a vessel length restriction; Category B shares are designated to be fished on CVs greater than 60 feet length overall (LOA); Category C shares are designated to be fished on CVs greater than 35 feet but less than or equal to 60 feet LOA; and Category D shares are designated to be fished on CVs less than or equal to 35 feet LOA.
NMFS annually issues IFQ permits to each QS holder. An annual IFQ permit authorizes the permit holder to harvest a specified amount of the IFQ species in a regulatory area from a specific operation type and vessel category. IFQ is expressed in pounds and is based on the amount of QS held in relation to the total QS pool for each regulatory area with an assigned catch limit.
Another goal of the IFQ Program is to promote an owner-operator fleet. To meet these goals, the IFQ Program includes restrictions on the ability of QS holders to transfer their annual IFQ. The Council and NMFS recognized that at the time the IFQ Program was implemented, some QS holders had long-standing business arrangements with hired masters who harvested IFQ on behalf of the QS holder. Therefore, the IFQ Program authorizes the use of hired masters in certain instances. Since the implementation of the IFQ Program, the Council has recommended and NMFS has approved further regulatory amendments to limit the ability of QS holders to designate a hired master to discourage absentee ownership and move towards an owner-operated program.
Halibut and sablefish are managed in separate geographic areas of harvest. The sablefish IFQ regulatory areas are defined and shown in Figure 14 to 50 CFR part 679 and in section 3 of the Analysis. The halibut IFQ areas are consistent with the IPHC’s regulatory areas. NMFS's IFQ regulatory areas are described in Figure 15 to 50 CFR part 679. This proposed rule uses the term “Area” to refer to a specific IFQ regulatory area (e.g., Area 2C).
The Council developed transfer restrictions to retain the owner-operator nature of the CV fisheries and limit consolidation of QS. Only persons who were originally issued CV QS (B and C for sablefish; B, C, and D for halibut) or who qualified as crew members are allowed to hold or purchase CV QS. Only individuals and initial recipients are eligible to hold CV QS and they are required to be on the vessel when the IFQ is being fished (with a few exceptions). Since 1998, transfers of CV IFQ has generally been prohibited except under a few specific conditions. Temporary transfers of CV IFQ are allowed under six special circumstances: 1) medical transfers, 2) beneficiary (survivorship) transfers, 3) military transfers, 4) transfers through Community Quota Entities, 5) transfers to Guided Angler Fish program, and 6) transfers to Community Development Quota groups in years of low halibut abundance. IFQ permits, and any associated transfers, are valid for a calendar fishing year.
The IFQ Program includes a temporary medical transfer provision at 50 CFR 679.42(d)(2) that allows a quota holder not otherwise qualified to hire a master to temporarily transfer their annual IFQ to another individual if the quota holder or their immediate family member have a temporary medical condition that prevents them from fishing. The provision is intended to provide a mechanism for QS holders who are experiencing a temporary medical condition that would prevent them from fishing during a season to transfer their annual IFQ to another individual.
An applicant for a temporary medical transfer must document his or her medical condition by submitting an affidavit to NMFS from a healthcare provider that describes the medical condition affecting the applicant and attests to the inability of the applicant to participate in the IFQ fishery for which she or he holds QS. In the case of a family member’s medical emergency, the affidavit must describe the necessity for the quota holder to tend to an immediate family member who suffers from the medical condition. The Council recommended and NMFS has implemented regulations that limit the number of instances that QS holders may use the provision for any medical condition. NMFS will not approve a medical transfer if the QS holder has been granted a medical transfer in any three of the previous seven years for a medical condition (starting in 2020).
Initial recipients (excluding Areas 2C for halibut or SE for sablefish – these Areas correspond to Southeast Alaska) of CV QS may be absent from the vessel conducting IFQ fishing of his or her QS, provided the QS holder can demonstrate ownership of the vessel that harvests the IFQ halibut or sablefish (a minimum of at least 20 percent ownership interest in the vessel harvesting the IFQ for the 12 months prior to submitting the hired master application) and representation of the QS holder on the vessel by a hired master. This exception allows fishermen who traditionally operated their fishing businesses using hired masters prior to the IFQ Program implementation to continue to hire a master. By limiting the hired master provision to initial recipients, the use of this owner-on-board exception will decline and eventually cease with the transfer of all QS from initial recipients to new entrants (“second generation”).
The use of a hired master is not classified as a transfer of IFQ since the QS holder does not submit a transfer application and is responsible for the hired master staying within the harvest limits. While not technically a transfer, use of a hired master provides the flexibility of a transfer in that it allows an individual’s IFQ to be harvested by another person without requiring the QS holder to directly participate in the fisheries.
Under existing regulations, individuals who can hire a master to fish their IFQ are not eligible to use the medical transfer provision. Those who can typically hire a master include initial recipients in all areas except for Southeast Alaska. Both initial recipients of Southeast Alaska halibut and sablefish QS and second generation QS holders are eligible to use the medical transfer provision. QS holders who own QS in multiple areas would make landings in different parts of the State to fish their QS. Many QS holders live outside of Alaska and travel into the State of Alaska to fish their IFQ.
This emergency rule implements temporary IFQ transfer provisions for the 2020 IFQ fishing year by revising regulations in two places. First, this emergency rule revises regulations at § 679.41(h)(2) to modify the conditions under which IFQ may be transferred by referring to a new regulatory paragraph at § 679.41(p). Second, the emergency rule adds a new regulatory paragraph at § 679.41(p) which describes the process for obtaining a temporary IFQ transfer for the 2020 IFQ fishing year.
The temporary IFQ transfer process described at § 679.41(p) is separate and distinct from the process that may be used to transfer IFQ under the hired master and medical transfer provisions previously described, or any other IFQ transfer provisions in existing regulations. Any temporary IFQ transfer under § 679.41(p) would be applicable only during the 2020 IFQ fishing year. This action allows all QS holders to transfer their IFQ for the remainder of the 2020 fishing year.
QS holders wishing to transfer their IFQ under this emergency rule need to complete an Application for Temporary Transfer of Halibut/Sablefish Individual Fishing Quota found on https://www.fisheries.noaa.gov/region/alaska. A temporary IFQ transfer, like this emergency action, is valid only for the calendar year in which it is approved. All individual QS holders who hold CV IFQ would be eligible to use this temporary provision.
Although the temporary IFQ transfer provision described in § 679.41(p) is distinct from other IFQ transfer provisions in regulation, the process for QS holders to apply for a transfer, the NMFS review and approval process, are similar to those used for other IFQ transfer procedures in § 679.41.
Section 305(c) of the Magnuson-Stevens Act provides authority for rulemaking to address an emergency. Under that section, a Council may recommend emergency rulemaking if it finds an emergency exists as described below. NMFS's Policy Guidelines for the Use of Emergency Rules require that an emergency must exist and that NMFS have an administrative record justifying emergency regulatory action and demonstrating compliance with the Magnuson-Stevens Act and the National Standards (see NMFS Instruction 01-101-07 (March 31, 2008) and 62 FR 44421-01; August 21, 1997). Emergency rulemaking is intended for circumstances that are “extremely urgent,” where “substantial harm to or disruption of the . . . fishery . . . would be caused in the time it would take to follow standard rulemaking procedures (62 FR 44421-01).”
Under NMFS' Policy Guidelines for the Use of Emergency Rules, the phrase “an emergency exists involving any fishery” is defined as a situation that meets the following three criteria:
(1) Results from recent, unforeseen events or recently discovered circumstances;
(2) Presents serious conservation or management problems in the fishery; and
(3) 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 rule making process.
The following sections describe why the Council and NMFS determined that allowing transfer flexibility to all IFQ Program participants for the remainder of the 2020 IFQ fishing year meets these criteria.
Government health mandates and travel restrictions during the 2020 IFQ fishing year (March 14, 2020 – November 15, 2020) may limit the ability of some fishery participants to travel to various ports in Alaska, and may constrain fishing operations while these provisions are in place. Fishery participants have stated that these measures have increased costs to QS holders who live outside of Alaska because meeting these requirements could result in up to 30-40 days of additional time needed to harvest IFQ. In addition to increased costs, reports of ex-vessel prices for halibut and sablefish have decreased substantially in many Alaskan ports due to recent and unforeseen market conditions (see Section 3 of the Analysis). State health mandates and travel restrictions have limited the ability to access fishing ports in a timely and cost-efficient manner and these restrictions were recent and unforeseen during the 2020 IFQ fishing year.
It is not known if health mandates and travel restrictions currently in place by the State of Alaska, municipalities, or other states will remain in effect throughout the duration of the 2020 IFQ fishing year. Even if these health mandates and travel restrictions are relieved, fishery participants may not be able to conduct fishing operations due to limited air travel to many Alaskan ports. Alternatively, health mandates and travel restrictions could be strengthened during the 2020 IFQ fishing year.
As noted earlier, existing hired master and medical transfer provisions are only available under specific conditions (i.e., an individual may not be able to receive a medical transfer unless a health care provider attests that their medical condition precludes their participating in IFQ fisheries). Due to these limitations, and the recent and unforeseen limitations on the IFQ fisheries, an emergency action is required to provide all IFQ holders with the ability to transfer IFQ. Sections 3.2 and 3.3 of the Analysis provides additional detail on the hired master and medical transfer provisions.
Ongoing health mandates and travel restrictions present serious management problems in the IFQ fisheries. If there is not additional flexibility to transfer IFQ, some fishery participants may forego harvesting catch due to the additional costs and logistical challenges to comply with existing health mandates and travel restrictions.
If harvesters forego catch, this could result in the under-harvest of IFQ accounts. Under existing IFQ regulations, harvesters may “roll over” up to 10 percent of an IFQ permit’s remaining balance to the following year (§ 679.40 (c)). However, anyone unable to harvest at least 90 percent of their allocation of IFQ would be at risk of foregoing harvests. Based on the harvest information in Section 3 of the Analysis, it is clear that halibut and sablefish are being harvested at substantially lower rates than in previous years. For example, during the first two months of the IFQ season (March 14 – May 7), 54 percent less halibut was harvested, and 11 percent less sablefish was harvested than over the same period in 2019.
Given current harvest rates, ongoing health mandates, travel restrictions and other related logistical challenges facing the IFQ fisheries, additional flexibility in IFQ transfer provisions would increase the ability for harvesters to harvest, and processors to process a larger proportion of the overall TACs. This would directly address a serious management concern, the under harvest of allocations due to recent, unforeseen, and recently discovered events.
NMFS notes that this emergency action would not cause conservation concern by increasing the risk of overharvest of IFQ. The requested emergency action would not increase the halibut catch limits or the sablefish TACs. The total amount of IFQ issued would not increase. This emergency rule would not modify existing requirements on the types of vessels and gear that could be used, monitoring requirements, record keeping regulations, or other aspects of the IFQ Program.
NMFS and the Council have determined that the emergency situation created by ongoing health mandates, travel restrictions, and other related logistical challenges faced by the IFQ fisheries can be addressed by emergency regulations. As explained earlier, not all QS holders are able to use existing regulatory provisions to transfer IFQ. Providing for a temporary transfer of IFQ for all CV QS holders for the 2020 IFQ fishing year would not create conservation or management concerns and is consistent with the overall goals of the IFQ Program – namely, to provide for the complete and efficient harvest of the halibut and sablefish resource (see Section 5 of the Analysis for additional detail).
To address the emergency, NMFS must implement an emergency rule that waives the notice-and-comment rulemaking period. The benefits of waiving notice-and-comment rulemaking will serve the industry and public by allowing for additional harvest of halibut and sablefish by IFQ participants. Any delay that results in implementing rulemaking will reduce opportunities to harvest halibut and sablefish. Section 4.2 of the Analysis describes the potential additional harvest opportunities for the IFQ participants in greater detail.
Without the waiver of notice-and-comment rulemaking, the IFQ Program participants will not have sufficient time and ability to prosecute these fisheries as intended. The halibut and sablefish IFQ fisheries are harvested from numerous ports from hundreds of vessels that must be coordinated with other harvesting and processing activities. Increasing the flexibility for harvesters to transfer IFQ expeditiously will provide additional opportunity for halibut and sablefish to be harvested before the end of the IFQ fishing year. Otherwise, fishing time for some harvesters would be extremely limited or unavailable for the duration of the 2020 IFQ fishing year. For example, absent the waiver, harvesters with IFQ may not be able to travel to fishing ports under current or future health mandates, travel restrictions, or limited air travel with sufficient time to coordinate with other harvesters and processors. Vessel owners need time to secure crew, which may shift into other groundfish fisheries, non-groundfish fisheries or other activities if they are unable to secure adequate IFQ to support their fishing operations. In addition, vessel owners need sufficient lead time to revise fishing plans, restock vessels, change gear, and have the vessel travel to and from the fishing grounds to prosecute the IFQ fisheries.
This emergency action would not impose additional restrictions on the IFQ halibut and sablefish fisheries, but would alleviate limitations thereon. This emergency rule would not increase the amount of available harvests, increase any risk of overharvest, or otherwise modify conservation measures. This emergency rule is needed to allow for the complete and efficient harvest of the IFQ fisheries and to temporarily alleviate unforeseen economic and social consequences due to the recent and unforeseen limitations on the IFQ fisheries detailed in this preamble.
The emergency action considerations discussed herein also warrant instituting these IFQ transfer measures in the halibut fisheries under the Halibut Act. The Halibut Act authorizes the Council to develop limited access program regulations for the halibut fisheries that, in another step, must then be approved by the Secretary. As discussed further below, emergency-based halibut fishery regulations that waive prior notice and comment and a 30-day delay in effectiveness period must be consistent with the Administrative Procedure Act (APA).
The Assistant Administrator for Fisheries, NOAA, has determined that this emergency rule is consistent with the National Standards, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, the Halibut Act, and other applicable laws.
The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) of the APA to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. This emergency rule would provide flexibility for QS holders to temporarily transfer their IFQ to an eligible individual to harvest their IFQ during the remainder of the 2020 IFQ fishing year. This emergency rule would apply only to CV QS that is held by individuals. This emergency rule would not modify any additional restrictions on IFQ transfers. This rule is in response to recent and unforeseen circumstances that have prompted increased restrictions in travel and health mandates. These restrictions present serious problems in managing the IFQ Program. Without the increased flexibility to temporarily transfer IFQ, it is likely that a significant portion of the harvest will be forgone. The associated loss in harvesting and processing revenues would likely impact the harvesters, crew, and communities that are active in the IFQ Program.
As explained earlier, after receiving a letter from industry participants on April 7, 2020, the Council and NMFS became aware of how restrictions may impact IFQ participants for the remainder of the 2020 IFQ fishing year. The Council and NMFS had no way of foreseeing the impact on fishery operations.
Finally, the time required for notice-and-comment rulemaking would not provide relief from the forgone harvests because it would not provide sufficient time before the end of the 2020 IFQ fishing year. The Magnuson-Stevens Act amendment process sets forth certain requirements that must be followed, and because the IFQ season closes in November, there is not enough time to follow the standard rulemaking process prescribed by the Magnuson-Stevens Ac and required by the APA. NMFS has no other way than this emergency rule to amend these IFQ transfer provisions in time to restore forgone fishing opportunities for 2020. Allowing for access to the remaining halibut and sablefish IFQ for the rest of 2020 will provide immediate economic benefits that outweigh the value of the deliberative notice-and-comment rulemaking process.
Similarly, for the reasons above that support the need to implement this emergency rule in a timely manner, the Assistant Administrator for Fisheries finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness provision of the APA and make the emergency rule effective immediately upon publication in the Federal Register. As stated above, NMFS anticipates that this emergency rule will allow for harvest of the remaining IFQ and should prevent prolonged economic losses from the potential forgone harvests.
This action is being taken pursuant to the emergency provision of the Magnuson-Stevens Act and is exempt from Office of Management and Budget (OMB) review. The Analysis prepared for this emergency rule is available from NMFS (see ADDRESSES).
This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is not subject to the requirement to provide prior notice and opportunity for public comment pursuant to 5 U.S.C. 553 or any other law. Accordingly, no regulatory flexibility analysis is required and none has been prepared.
This emergency rule contains a collection-of-information requirement subject to review and approval by the OMB under the Paperwork Reduction Act (PRA). NMFS has submitted an emergency information request for this requirement to OMB for approval under a new control number. Due to the need to begin collecting this information immediately, NMFS is unable to allow for the time periods normally required for clearance under the PRA. This new collection will be discontinued after the 2020 IFQ fishing season, which ends November 15, 2020.
This information collection adds a checkbox to the Application for Temporary Transfer of Halibut/Sablefish Individual Fishing Quota (IFQ), which is approved under OMB Control Number 0648-0272. The checkbox will indicate the application is being submitted for a temporary transfer for the 2020 fishing year only. The public reporting burden for this form will remain at two hours, which includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
NMFS estimates up to 40 percent of the QS holders may request this temporary transfer. The new collection will cover the additional QS holders that NMFS estimates may use this form to request this temporary transfer. This will result in an estimated 1,100 respondents, 550 total responses, 1,110 total burden hours, and $ 12,100 total recordkeeping and reporting costs to the public for the new collection.
Send comments on these or any other aspects of the collection of information to NMFS Alaska Region (see ADDRESSES) and to OIRA by email to OIRA_Submission@omb.eop.gov or by fax to (202) 395-5806.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: https://www.reginfo.gov/public/do/PRASearch#.
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated:
________________________
For the reasons set out in the preamble, 50 CFR part 679 is amended as follows:
1. The authority citation for 50 CFR part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447; Pub. L. 111-281.
2. In 679.41, revise paragraph (h)(2) and add paragraph (p) to read as follows:
§ 679.41 Transfer of quota shares and IFQ.
* * * * *
(h) * * *
(2) IFQ resulting from categories B, C, or D QS may not be transferred separately from its originating QS, except as provided in paragraph (d), paragraph (f), paragraph (k), paragraph (l), paragraph (m), paragraph (o), or paragraph (p) of this section.
* * * * *
(p) Temporary IFQ transfer for 2020. During the 2020 IFQ fishing year only, the Regional Administrator may approve a temporary transfer for IFQ derived from categories B, C, or D QS.
(1) A QS holder may apply for a temporary transfer by submitting an Application for Temporary Transfer of Halibut/Sablefish Individual Fishing Quota to the Alaska Region, NMFS. NMFS will transfer, upon approval of the application, the applicable IFQ from the applicant (transferor) to the recipient (transferee). The application is available at http://alaskafisheries.noaa.gov or by calling 1-800-304-4846.
(2) [Reserved].
| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| Author | Keeley.Kent |
| File Modified | 0000-00-00 |
| File Created | 2021-01-13 |