[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