[Federal Register Volume 85, Number 119 (Friday, June 19, 2020)]
[Rules and Regulations]
[Pages 37027-37030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13288]



[[Page 37027]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 200615-0159]
RIN 0648-BJ83


Fisheries Off West Coast States; Emergency Action To Temporarily 
Remove Seasonal Processing Limitations for Pacific Whiting Motherships 
and Catcher-Processors

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

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

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SUMMARY: This emergency rule temporarily allows at-sea Pacific whiting 
processing platforms to operate as both a mothership and a catcher-
processor during the 2020 Pacific whiting fishery. This action is 
necessary to ensure catcher vessels in the mothership cooperative 
sector are able to fully harvest sector allocations. Emergency measures 
under this rule will allow catcher-processors to operate as motherships 
later in the year, and replace mothership processing platforms that 
have chosen not to operate in the cooperative in response to high 
economic uncertainty in 2020.

DATES: Effective June 19, 2020, until December 16, 2020. Comments must 
be submitted by July 19, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2020-0088 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-2020-0088, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Barry Thom, c/o Colin Sayre, Sustainable Fisheries 
Division, West Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 
98115-0070.
    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).

Electronic Access

    This emergency rule is accessible via the internet at the Office of 
the Federal Register website at https://www.federalregister.gov. 
Background information and documents are available at the NMFS West 
Coast Region website at: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html and at the Pacific Fishery Management 
Council's website at http://www.pcouncil.org/groundfish/fishery-management-plan/groundfish-amendments-in-development/.

FOR FURTHER INFORMATION CONTACT: Colin Sayre, phone: 206-526-4656, or 
email: [email protected].

SUPPLEMENTARY INFORMATION: On March 31, 2020, a company holding one of 
the mothership (MS) permits in the at-sea Pacific whiting fishery 
announced that because of new, unforeseen health, safety, and economic 
risks, it would not commit a processing platform to the MS sector for 
the 2020 Pacific whiting season, and would instead operate all of its 
eligible processing platforms in the Pacific whiting catcher-processor 
(C/P) sector. The Pacific Coast Groundfish Fishery Management Plan 
(FMP) prohibits processing platforms in the at-sea Pacific whiting 
fishery from operating as both an MS and C/P during the same calendar 
year. Some processing platforms are capable of both harvesting and 
processing catch at-sea, while others are built solely to process catch 
delivered by other vessels. Because of this, some processing platforms 
are able to switch between the C/P and MS sectors, while other 
platforms are not. To help ensure market stability in the separate 
sectors, the current rule does not allow processing platforms to switch 
between the MS and C/P sectors in a single calendar year. Therefore, 
the decision to operate processing platforms as a C/P in response to 
the new and unforeseen risks would prevent them from operating as a MS 
for the remainder of the 2020 fishing year. Without additional 
rulemaking action to allow these processing platforms to switch to the 
MS sector, three catcher vessels would lose their MS because the 
processing platform would be required to commit to operating as a C/P 
for the remainder of the 2020 fishing year. Losing the MS processing 
platform would prevent these catcher vessels from harvesting their 2020 
Pacific whiting allocations, leaving unharvested about 25 percent of 
the MS sector Pacific whiting allocation, worth an estimated $5 
million. The remaining processing companies participating in the MS 
cooperative do not possess the capacity to receive deliveries from the 
displaced catcher vessels for the 2020 Pacific whiting season.
    On April 8, 2020, industry members from the MS cooperative 
submitted a letter to the Pacific Fishery Management Council (Council) 
requesting action to address this issue. On April 10, 2020, the Council 
voted to request that NMFS initiate an emergency action to temporarily 
allow any eligible MS and C/P to operate as both types of processing 
platform during the 2020 Pacific whiting season, instead of opting at 
the beginning of the fishing season to operate as one or the other for 
the year. This emergency action would allow at-sea Pacific whiting 
processing platforms to switch operations for 180 days after 
publication.

Justification for Emergency Action

    Section 305(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) authorizes the Secretary of 
Commerce to implement emergency regulations to address fishery 
emergencies. NMFS policy guidelines for the use of emergency rules 
define criteria for determining whether an emergency exists under 
section 305(c) of the Magnuson-Stevens Act (62 FR 44451; August 21, 
1997). These criteria limit emergency management actions to ``recent 
unforeseen events or recently discovered circumstances'' that present 
serious management problems in the fishery when the benefits of an 
emergency action outweigh the benefits of the normal rulemaking 
process.
    Maintaining the prohibition on processing platforms operating as 
both a C/P and MS in the same calendar year would have serious economic 
impacts within the 2020 Pacific whiting season by limiting catcher 
vessel operations without providing the benefit of long-term 
competitive stability between the MS and C/P sectors. The prohibition 
on processing platforms operating as both an MS and C/P would place 
both sectors at an economic disadvantage by limiting the operational 
flexibility of the at-sea sectors to respond to recent unforeseen 
circumstances. This emergency action would allow a processing platform 
to operate as both an MS or a C/P in the same year, depending on the 
processing needs of the at-sea Pacific whiting sectors. Under these 
emergency

[[Page 37028]]

measures, temporarily lifting the restriction on MS and C/P operations 
would increase the likelihood that MS catcher vessels have markets to 
deliver catch to throughout the 2020 fishing year. The operational 
flexibility provided in this emergency action would prevent significant 
direct economic loss to at-sea whiting fishery participants and fishing 
communities. These measures will allow at least three catcher vessels 
impacted by unforeseen circumstances to harvest MS sector Pacific 
whiting allocations and provide catch revenue to the respective vessel 
crews. In the event that additional processing platforms cannot commit 
to taking deliveries from catcher vessels for the remainder of the 2020 
Pacific whiting season (due to changes in business plans or because a 
processing platform is rendered inoperable, for example) this emergency 
rule may provide additional harvesting and processing opportunities for 
at-sea Pacific whiting fishery participants.
    In light of this information, NMFS finds that an emergency exists, 
and regulations are necessary to address the emergency.

Emergency Measures

    This emergency action removes restrictions prohibiting an at-sea 
Pacific whiting processing platform from operating as an MS or C/P in 
the same calendar year, effective June 19, 2020. This action 
temporarily (for 180 days) allows a processing platform to operate as 
both an MS and C/P in the same calendar year, but not on the same trip. 
Owners of processing platforms intended to be switched between C/P and 
MS operations during the 2020 Pacific whiting season must follow this 
procedure:
    (1) Submit a request to register for both processing permits. The 
vessel may be registered under both an MS permit and a C/P endorsed 
permit simultaneously for the duration of the emergency rule. The owner 
of a processing platform currently registered under a C/P endorsed 
permit may also operate as an MS by submitting a request to NMFS 
Permits to register the processing platform under a valid MS permit per 
regulations in 50 CFR 660.25(b). The owner of a processing platform 
currently registered under an MS permit may also operate as a C/P by 
submitting a request to NMFS Permits to register the processing 
platform under a valid C/P endorsed permit per regulations in 50 CFR 
660.25(b).
    (2) Submit a notification of a material change to coop agreement 
within 7 days. To operate in the MS fishery (i.e., receive deliveries 
of catch from MS catcher vessels and process 2020 MS sector allocations 
at-sea) the vessel must be included in the MS coop agreement. To 
operate in the C/P fishery (i.e., catch and process 2020 C/P sector 
allocations at-sea) the vessel must be included in the C/P coop 
agreement. Including a new vessel in either the MS or C/P coop 
agreement constitutes a material change to the coop agreement. Within 7 
calendar days of the new processing platform operating for the first 
time in either the 2020 MS coop fishery or the 2020 C/P coop fishery, 
the respective coop manager must notify NMFS in writing of such change 
to the coop agreement as required in regulations at 50 CFR 660.150 
(d)(1)(iii)(B)(4) and 50 CFR 660.160(d)(1)(iii)(B)(4).
    (3) Submit a revised coop agreement within 30 days of material 
change to the coop agreement. Within 30 days of a new vessel 
participating in a coop fishery, the MS or C/P coop manager must submit 
a revised coop agreement to NMFS that lists all vessels and/or 
processing platforms operating in the respective coop and includes the 
new processing platform, along with a letter describing the change to 
the coop agreement, as required in regulations at 50 CFR 
660.150(d)(1)(iii)(B)(4) and 50 CFR 660.160(d)(1)(iii)(B)(4).
    (4) Change vessel declaration before each fishing trip. For each 
trip, the vessel must update its vessel monitoring system (VMS) 
declaration to reflect its activity for that trip prior to departure as 
specified in existing groundfish regulations at 50 CFR 
660.13(d)(4)(iv)(A). The declaration is binding for the duration of the 
trip and may not be changed until completion of the trip. A processing 
platform must submit one of the following declarations: (a) Limited 
entry midwater trawl, Pacific whiting catcher/processor sector; or (b) 
Limited entry midwater trawl, Pacific whiting mothership sector 
(mothership).

Renewal of Emergency Regulations

    The Magnuson-Stevens Act limits NMFS's emergency action authority 
to an initial period of 180 days, with a potential extension up to an 
additional 186 days, if warranted. The public has an opportunity to 
comment on the initial emergency action (see ADDRESSES). After 
considering public comments on this emergency rule, NMFS may renew the 
emergency regulation in December 2020 to provide at-sea Pacific whiting 
vessels the flexibility to switch between operating as an MS or C/P 
through December 31, 2020.

Classification

    The NMFS Assistant Administrator has determined that this emergency 
rule is consistent with the Pacific Coast Groundfish FMP, section 
305(c) and other provisions of the Magnuson-Stevens Act, the 
Administrative Procedure Act (APA), and other applicable law. Pursuant 
to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries finds 
good cause to waive prior notice and opportunity for public comment 
because it would be impracticable and contrary to the public interest. 
This emergency action was recommended by the Council following a letter 
and comments from members of the public representing the at-sea whiting 
industry during the March 2020 Council meeting. Providing prior notice 
through proposed rulemaking and public comment period in the normal 
rulemaking process would be counter to public interest by delaying 
implementation of emergency measures intended to provide relief for a 
time sensitive management problem. The at-sea industry develops 
extensive plans each year for the Pacific whiting season, and 
implementing this action as soon as possible maximizes the time 
available for the at-sea industry to adjust business plans for the 
year. For the reasons outlined above, NMFS finds it impracticable and 
contrary to the public interest to provide prior notice and opportunity 
to comment on these emergency measures.
    Additionally, this rule is exempt from the 30-day delayed 
effectiveness provision of the APA under 5 U.S.C. 553(d)(1) because it 
relieves a restriction that would place mothership dependent catcher-
vessels at an economic disadvantage in the 2020 Pacific whiting 
fishery. Waiving the 30-day delayed effectiveness for this rule is 
necessary to allow the at-sea sectors sufficient time to plan 
operations and maximize flexibility provided by this action. 
Maintaining the prohibition on vessels operating as both an MS and C/P 
in the same calendar year would present immediate serious economic 
impacts without contributing to the economic goals of the Catch Share 
Program, at-sea Mothership cooperative or Catch-Processor cooperative. 
Because this rule alleviates a restriction that would otherwise have 
serious and unnecessary economic harm on non-groundfish trawl vessels, 
it is not subject to the 30-day delayed effectiveness provision of the 
APA.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.

[[Page 37029]]

    This final rule is not an Executive Order 13771 regulatory action 
because it is not significant under Executive Order 12866.
    The Regulatory Flexibility Act does not apply to this emergency 
rule because the rule is issued without prior notice and opportunity 
for public comment.

Recordkeeping and Reporting Requirements

    This emergency action includes record keeping and reporting 
requirements previously approved by the Office of Management and Budget 
(OMB) under OMB Control Number 0648-0573: Expanded Vessel Monitoring 
System Requirement for the Pacific Groundfish Fishery. For each trip, 
prior to leaving port a Pacific whiting processing platform must 
declare whether it will be operating in the MS sector or the C/P sector 
for that trip. However, this action does not change existing 
recordkeeping and reporting requirements. Vessels in fisheries off West 
Coast states must declare through VMS the gear type and sector in which 
they will participate, including the limited entry midwater trawl and 
Pacific whiting MS and C/P sectors, as specified in existing groundfish 
regulations at 50 CFR 660.13(d)(4)(iv)(A). The number of declaration 
reports the vessel operator is required to submit to NMFS would not 
change under this action. Therefore, no entity would be subject new 
reporting requirements under this emergency action.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: June 16, 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 660 is amended 
as follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 
16 U.S.C 7001 et seq.


0
2. In Sec.  660.25, add paragraph (b)(4)(vii)(D) to read as follows:


Sec.  660.25   Permits.

* * * * *
    (b) * * *
    (4) * * *
    (vii) * * *
    (D) Emergency rule creating season flexibility on at-sea processing 
restrictions. Effective June 19, 2020, until December 16, 2020, 
notwithstanding any other section of these regulations, vessels may be 
registered to both a limited entry MS permit and limited entry trawl 
permit with a C/P endorsement during the same calendar year. Vessels 
registered to both an MS permit and a C/P endorsed permit may operate 
in both the at-sea MS sector and C/P sector during the same calendar 
year, but not on the same trip. Prior to leaving port, a vessel 
registered under both an MS permit and a C/P endorsed permit must 
declare through VMS the sector in which it will participate for the 
duration of the trip, as specified at Sec.  660.13(d)(4)(iv)(A).
* * * * *

0
3. In Sec.  660.112, add paragraphs (d)(3)(i) and (ii) and (e)(3)(i) 
and (ii) to read as follows:


Sec.  660.112   Trawl fishery--prohibitions.

* * * * *
    (d) * * *
    (3) * * *
    (i) Effective June 19, 2020, until December 16, 2020, 
notwithstanding any other section of these regulations, a vessel that 
was used to fish in the C/P fishery may be used to receive and process 
catch as mothership in the same calendar year, but not on the same 
fishing trip.
    (ii) [Reserved]
* * * * *
    (e) * * *
    (3) * * *
    (i) Effective June 19, 2020, until December 16, 2020, 
notwithstanding any other section of these regulations, catcher-
processor vessels and motherships are exempt from this prohibition.
    (ii) [Reserved]
* * * * *

0
4. In Sec.  660.150, add paragraphs (b)(1)(i)(D), (b)(2)(ii)(B)(1) and 
(2), (f)(1)(iii), and (f)(2)(i)(A) and (B) to read as follows:


Sec.  660.150   Mothership (MS) Coop Program.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (D) Under emergency measures effective June 19, 2020, until 
December 16, 2020, notwithstanding any other section of these 
regulations, a vessel may operate as both a mothership and a C/P during 
the 2020 Pacific whiting primary season, but not on the same fishing 
trip.
* * * * *
    (2) * * *
    (ii) * * *
    (B) * * *
    (1) Under emergency measures effective June 19, 2020, until 
December 16, 2020, notwithstanding any other section of these 
regulations, a vessel may operate as both a mothership and C/P during 
the 2020 Pacific whiting primary season, but not on the same fishing 
trip. A vessel registered in the same calendar year to operate under 
both a limited entry MS permit and limited entry permit with a C/P 
endorsement must declare prior to leaving port the sector in which it 
will participate for the duration of the trip, as per declaration 
requirements specified at Sec.  660.13(d)(4)(iv)(A).
    (2) [Reserved]
* * * * *
    (f) * * *
    (1) * * *
    (iii) Emergency rule creating seasonal flexibility on at-sea 
processor restrictions. Effective June 19, 2020, until December 16, 
2020, notwithstanding any other section of these regulations, vessels 
may operate as both a mothership and a C/P during the 2020 Pacific 
whiting primary season, but not on the same fishing trip.
    (2) * * *
    (i) * * *
    (A) Emergency rule creating seasonal flexibility on at-sea 
processing restrictions. Effective June 19, 2020, until December 16, 
2020, a vessel registered to an MS permit is exempt from this 
declaration and may also operate as a catcher-processor during the 2020 
Pacific whiting primary season, even if the permit owner previously 
declared to operate solely as a mothership.
    (B) [Reserved]
* * * * *

0
 5. In Sec.  660.160, add paragraphs (b)(1)(i)(D), (b)(1)(ii)(A)(1) and 
(2), (e)(1)(iii)(A) and (B), and (e)(2)(i)(A) and (B) to read as 
follows:


Sec.  660.160   Catcher/processor (C/P) Coop Program.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (D) Effective June 19, 2020, until December 16, 2020, 
notwithstanding any other section of these regulations, a vessel may 
operate as both a mothership and a C/P during the 2020 Pacific whiting 
primary fishing season, but not on the same fishing trip.
* * * * *
    (ii) * * *
    (A) * * *

[[Page 37030]]

    (1) Under emergency measures effective June 19, 2020, until 
December 16, 2020, a vessel may operate as both a mothership and C/P 
during the 2020 Pacific whiting primary season, but not on the same 
fishing trip. A vessel registered in the same calendar year to operate 
under both a limited entry MS permit and limited entry permit with a C/
P endorsement must declare prior to leaving port the sector in which it 
will participate for the duration of the trip, as per declaration 
requirements specified at Sec.  660.13(d)(4)(iv)(A).
    (2) [Reserved]
* * * * *
    (e) * * *
    (1) * * *
    (iii) * * *
    (A) Emergency rule creating seasonal flexibility on at-sea 
processor restrictions. Effective June 19, 2020, until December 16, 
2020, notwithstanding any other section of these regulations, vessels 
may operate as both a mothership and a C/P during the 2020 Pacific 
whiting primary season, but not on the same fishing trip.
    (B) [Reserved]
* * * * *
    (2) * * *
    (i) * * *
    (A) Emergency rule creating seasonal flexibility on at-sea 
processing restrictions. Effective June 19, 2020, until December 16, 
2020, a vessel registered to a C/P endorsed permit is exempt from this 
declaration and may also operate as a mothership during the 2020 
Pacific whiting primary season, even if the permit owner previously 
declared to operate solely as a C/P.
    (B) [Reserved]
* * * * *
[FR Doc. 2020-13288 Filed 6-18-20; 8:45 am]
BILLING CODE 3510-22-P