[Federal Register Volume 86, Number 52 (Friday, March 19, 2021)]
[Rules and Regulations]
[Pages 14851-14855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05685]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 210315-0057]
RIN 0648-BK38


Fisheries of the Exclusive Economic Zone Off Alaska; Central Gulf 
of Alaska Rockfish Program; Modify Season Start Date

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

ACTION: Temporary rule; emergency action.

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SUMMARY: NMFS issues an emergency rule to modify the fishing season 
start date for fishing vessels participating in a rockfish cooperative 
as part of the Central Gulf of Alaska Rockfish Program (Rockfish 
Program) for the 2021 fishing year. This emergency rule is intended to 
provide flexibility to Rockfish Program participants by moving the 
fishing season start date from May 1, 2021 to April 1, 2021. This 
emergency rule does not modify other provisions of the Rockfish 
Program. This emergency rule is intended to promote the goals and 
objectives of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), the Fishery Management Plan for Groundfish 
of the Gulf of Alaska Management Area (GOA FMP) and other applicable 
laws.

DATES: Effective March 19, 2021 through September 15, 2021.

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 
identified by Docket ID NOAA-NMFS-2021-0021 or from the NMFS Alaska 
Region website at https://www.fisheries.noaa.gov/region/alaska.

FOR FURTHER INFORMATION CONTACT: Jennifer Watson, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Authority for Action

    NMFS manages U.S. groundfish fisheries of the GOA under the GOA

[[Page 14852]]

FMP. The North Pacific Fishery Management Council (Council) prepared, 
and the Secretary of Commerce (Secretary) approved, the GOA FMP under 
the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. 
Regulations governing U.S. fisheries and implementing the GOA FMP 
appear at 50 CFR parts 600 and 679. The Rockfish Program is implemented 
by the GOA FMP and regulations at 50 CFR parts 600 and 679.

Background

    On January 29, 2021, the Council received a request from Rockfish 
Program participants to consider emergency action under section 305(c) 
of the Magnuson-Stevens Act to modify the fishing season start date for 
the Rockfish Program in 2021. On February 10, 2021, the Council 
recommended that NMFS implement an emergency rule to modify the fishing 
season start date for fishing vessels participating in a rockfish 
cooperative as part of the Rockfish Program from May 1, 2021 to April 
1, 2021 to address the negative economic and social impacts on 
harvesters and processors participating in the Rockfish Program and the 
community of Kodiak, Alaska due to the Coronavirus (COVID-19) pandemic.
    The following sections describe the Rockfish Program, the existing 
dates of the fishing season, the emergency rule, and justification for 
emergency action.

The Rockfish Program

    This section provides a brief overview of the Rockfish Program and 
additional detail is available in Section 2 of the Analysis (see 
ADDRESSES).
    The Rockfish Program is a limited access privilege program (LAPP) 
developed to enhance resource conservation and improve economic 
efficiency in the Central Gulf of Alaska (CGOA) rockfish fisheries. The 
Rockfish Program was implemented by Amendment 88 to the GOA FMP (76 FR 
81247, December 27, 2011), and reauthorized under Amendment 111 to the 
GOA FMP on March 31, 2020 (86 FR 11895, March 1, 2021). For more 
information about the background and history of this program, see the 
preamble to the final rule for Amendment 111 (86 FR 11895, March 1, 
2021).
    Generally, the Rockfish Program (1) assigns quota share (QS) and 
cooperative quota (CQ) to participants for primary and secondary 
species, (2) allows a participant holding an license limitation program 
(LLP) license with rockfish QS to form a rockfish cooperative with 
other persons, (3) allows holders of catcher/processor LLP licenses to 
opt-out of rockfish cooperatives for a given year, (4) establishes a 
limited access fishery for participants who do not participate in a 
fishery cooperative for a given year, (5) includes an entry level 
longline fishery for persons who do not hold rockfish QS, (6) 
establishes constraints, commonly known as sideboard limits, for other 
non-Rockfish Program fisheries that apply to vessels and LLP licenses 
eligible to participate in the Rockfish Program, and (7) includes 
monitoring and enforcement provisions.
    As summarized in Sections 2 and 4.2 of the Analysis (see 
ADDRESSES), one of the overall goals of the Rockfish Program is to 
provide greater security to harvesters through the formation of 
rockfish cooperatives. Fishing under cooperative management resulted in 
a slower-paced fishery that allows a harvester to choose when to fish. 
The Rockfish Program also provided greater stability for processors by 
spreading out production over a longer period. Overall, the Rockfish 
Program provides greater benefits to shoreside processors, catcher/
processors, CGOA fishermen, and communities than were realized under 
the previous LLP management scheme.
    Amendment 111 to the FMP and the implementing final rule (86 FR 
11895, March 1, 2021) reauthorized the Rockfish Program, removed the 
Rockfish Program sunset date of December 31, 2021 and addressed a 
variety of administrative and management issues associated with the 
existing Rockfish Program. For more detail on the changes made by 
Amendment 111 to the FMP, see the preambles to the proposed rule (85 FR 
55243, September 4, 2020) and final rule (86 FR 11895, March 1, 2021).

Rockfish Program Fishing Season Dates

    Fishing by cooperative participants, specifically fishing vessels, 
under the Rockfish Program is currently authorized from 1200 hours, 
A.l.t., May 1 through 1200 hours, A.l.t., November 15 each year. With 
implementation of the Rockfish Program, the Central GOA rockfish 
fishery has changed from an approximate 3-week race to fish starting at 
the beginning of July, to a fishery that primarily occurs in May and 
June, with smaller harvest amounts occurring until November. Prior to 
the implementation of the Rockfish Program, the Gulf of Alaska rockfish 
fisheries opened on July 1 for fishing vessels using trawl gear.
    As summarized in Section 3 of the Analysis (see ADDRESSES), the 
Rockfish Program was developed to slow the race for fish, minimize 
bycatch and associated mortalities, provide for improved conservation 
of habitat, and address the social and economic concerns that have 
arisen under the original management system. The longer fishing season 
established under the Rockfish Program provides participants access to 
markets (including a possible fresh market) that were historically 
impossible to access because of the short duration and timing of the 
previous open access fishing season. In addition, by slowing the race 
for fish, Rockfish Program participants could focus on improving the 
quality of their landings, increasing fishery value and reducing 
overall Prohibited Species Catch (PSC).
    The lengthened fishing season under the Rockfish Program, enables 
cooperative members to consolidate their rockfish allocations and 
realize operational efficiencies.
    As summarized in Section 3.6 of the Analysis, the start and end 
dates for the current fishing season under the Rockfish Program were 
set based on considerations of bycatch of other species, rockfish 
reproduction, and processor activity. The pre-Rockfish Program July 
season start date for the rockfish trawl fishery was intended to reduce 
halibut PSC.
    Under the Rockfish Program, an earlier start date was implemented 
because PSC limits are effectively managed by participating 
cooperatives. Bycatch of non-PSC species has been minimally impacted by 
the extended Rockfish Program season. The overall level of halibut, 
chinook and chum salmon PSC in the Rockfish Program remains low due to 
the PSC avoidance measures implemented by cooperative managers that 
include various reporting requirements and bycatch standards that have 
been proven to reduce PSC under the extended season.
    In establishing existing Rockfish Program season start date, the 
Council and NMFS considered the timing of rockfish reproduction. The 
proposed April 1 season start date for this emergency rule is within 
the range of season start dates analyzed in the implementation of 
Rockfish Program. Section 3.6 of the Analysis prepared for this 
emergency rule notes that modifying the opening season start date to 
April 1 would not create a biological concern but that the most 
conservative management approach would be to maintain the season start 
date at May 1 to marginally reduce any potential fishery impacts on 
rockfish reproduction and improve operational efficiency by staggering 
the opening of this fishery relative to other fisheries.
    The season closing date of November 15 was selected to allow for 
fishing activity to be distributed over the course

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of the year where value could be maximized and efficiencies improved. 
An earlier or later end date was not given a large amount of 
consideration as November 15 corresponds closely with when processors 
and plants are generally closing for the fishing year.

This Emergency Rule and Justification for Emergency Action

    This emergency rule modifies the season start date from May 1, 2021 
to April 1, 2021 for fishing vessel members of a cooperative under the 
Rockfish Program in the 2021 fishing year. This emergency rule is 
intended to provide flexibility for vessel operators and shoreside 
processors that receive deliveries from harvesters in a cooperative by 
establishing a longer timeframe in which they would be able to harvest 
the quota. This emergency rule adds regulations at Sec.  
679.80(a)(3)(iii) to modify the season start date to begin on April 1 
at 1200 hours Alaska local time for the 2021 fishing year. This 
emergency rule temporarily suspends regulations at Sec.  
679.80(a)(3)(ii) that authorize fishing vessels that are members of 
rockfish cooperatives to commence fishing on May 1 at 1200 hours Alaska 
local time for the 2021 fishing year. The season end date of November 
15 at 1200 hours Alaska local time remains unchanged. This emergency 
rule does not modify any other aspect of the Rockfish Program. 
Modifying the season start date to April 1 would only affect the 2021 
fishing year. In subsequent years, the season start date would return 
to May 1.
    This emergency action does not impose additional restrictions on 
the fishery, but would alleviate limitations on the fishery. This 
emergency rule does not increase the amount of fish available to 
harvest, increase the risk of overharvest, or otherwise modify 
conservation measures. This emergency rule is needed to allow for the 
complete and efficient harvest of the rockfish fishery and to 
temporarily alleviate unforeseen economic and social consequences due 
to the recent and unforeseen limitations on the rockfish fishery. This 
emergency rule does 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 Rockfish Program.
    Section 305(c) of the Magnuson-Stevens Act authorizes the Secretary 
to promulgate regulations to address an emergency. Under that section, 
a Council may request that the Secretary promulgate emergency 
regulations. 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 Procedure 01-101-07 (March 31, 2008) and 62 FR 
44421; 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 modifying the season start date to April 1 for the 2021 fishing 
year meets these criteria.

Criterion 1--Recent, Unforeseen Events or Recently Discovered 
Circumstances

    Two recent and recently discovered circumstances have limited the 
ability of vessels to harvest and process groundfish in the port of 
Kodiak in 2021. Rockfish Program catcher vessels and the shoreside 
processors the vessels deliver to are located only in the port of 
Kodiak. First, beginning in early 2021, the groundfish fleet operating 
out of Kodiak has discovered that there are no longer economically 
viable markets for a variety of flatfish species, including species 
such as arrowtooth flounder. For several decades, these markets have 
been essential to harvesters and processors operating out of Kodiak. 
This lack of economically viable markets has created an unforeseen lack 
of harvesting and deliveries to processors operating out of Kodiak in 
the month of April. The U.S. government has recognized the impact of 
limited seafood markets and included flatfish fisheries prosecuted in 
Alaska in the Seafood Trade Relief Program (STRP), which provides 
payments to eligible commercial fishermen of seafood commodities that 
have been impacted by trade actions of foreign governments resulting in 
the loss of exports (85 FR 56572). In addition to flatfish, Kodiak 
processors and harvesters are heavily dependent on the salmon and 
rockfish fisheries. Rockfish landings at Kodiak processors occur in May 
and June, after flatfish in April, and are followed by summer salmon 
landings.
    Second, COVID-19 outbreaks in January and February 2021 in three 
large processors in the communities of Akutan and Unalaska, shut down 
fishing and processing operations in those communities for several 
weeks, creating widespread disruptions during the fishing season and 
broad economic impacts. Throughout 2020, processing facilities in 
Alaska were able to operate effectively with limited long-term 
disruption to processing activities. While Kodiak processors have not 
seen widespread COVID-19 outbreaks, the mitigation measures there 
mirrored those of the three large processors in the communities of 
Akutan and Unalaska. The closure of processing facilities in Alaska in 
early 2021 was not anticipated based on largely successful mitigation 
of COVID-19 in 2020. Even with strict mitigation measures in place, 
these outbreaks raise concern of future outbreaks across processing 
facilities in Alaska. Given the continued risk of COVID-19 transmission 
and outbreaks, and lack of widespread vaccinations, fishery 
participants anticipate there may be additional processor shutdowns 
throughout 2021.
    For Kodiak processors, an earlier start date for the Rockfish 
Program will help alleviate the operational disruption and economic 
impact from the lack of a flatfish market in April and will help ensure 
adequate processing capacity to fully prosecute the rockfish program 
fisheries throughout the 2021 fishing season. Due to these limitations, 
and the recent, unforeseen circumstances, an emergency action is 
required to move the start date of the 2021 Rockfish Program fishery to 
April 1.

Criterion 2--Presents Serious Conservation or Management Problems in 
the Fishery

    Recent, unforeseen, and ongoing COVID-19 outbreaks in processing 
plants across Alaska present serious management problems in the 
Rockfish Program. If the season start is not moved to April 1, 2021, 
there is a risk that the rockfish season may conflict with the summer 
salmon fisheries, causing seafood businesses to choose between one 
revenue source or another, particularly if a COVID outbreak occurs

[[Page 14854]]

in Kodiak and reduces processing capacity for several weeks. This 
presents a serious management problem for the fishery.
    Additionally, moving the season start date to April 1, 2021 will 
help processors continue to employ fishermen and plant personnel 
throughout April, a month that is typically busy with flatfish but will 
have an anticipated gap in 2021 due to the lack of a flatfish market. 
By permitting fishing and processing operations through the month of 
April, this emergency rule would result in a decrease in travel to and 
from the port of Kodiak, Alaska, thereby reducing the health risks to 
essential seafood workers and residents.

Criterion 3--Can Be Addressed Through Emergency Rulemaking for Which 
the Immediate Benefits Outweigh the Value of Notice and Comment 
Rulemaking

    NMFS and the Council have determined that the emergency situation 
created by the lack of a flatfish market and the continued risk of 
COVID-19 outbreaks across processing and fishing operations can be 
addressed by emergency regulations. Opening the rockfish season one 
month earlier does not create conservation and management concerns 
because the earlier start date was analyzed during the development of 
the Rockfish Program and is consistent with the overall goals of the 
Rockfish Program to provide additional harvest flexibility to 
cooperative participants.
    To address the emergency in a timely manner, 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 an additional month for fishery 
participants to harvest rockfish. Any delay that results in 
implementing this rulemaking may impact the ability for the fishery to 
start earlier. Section 4 of the Analysis (see ADDRESSES) describes the 
potential additional harvest opportunities for the rockfish 
participants in greater detail.
    Without the waiver of notice-and-comment rulemaking, the Rockfish 
Program cooperative participants will not have sufficient time for 
operational planning before the requested April 1, 2021 season opening 
date. Without sufficient notice of the season opening date, fish 
processors participating in the Rockfish Program may not have enough 
time to staff their facilities and coordinate fishing activities for an 
earlier season.
    The Council could not recommend and NMFS could not implement an 
earlier season start date through the conventional notice-and-comment 
rulemaking process before the regular 2021 Rockfish Program begins on 
May 1. Typically, the process of Council analysis and rulemaking takes 
at least one-year to implement. In this case, NMFS received the request 
for regulatory change on February 10, 2021, and the next regularly 
scheduled Council meeting begins April 5, 2021. Given that the Rockfish 
Program starts on May 1, 2021, this rule starts the season a month 
earlier, and the time required for Council action and notice-and-
comment rulemaking, this process could not be accomplished before the 
earlier start date of April 1, 2021.
    As discussed further below, emergency-based fishery regulations 
that waive prior notice and comment and a 30-day delay in effectiveness 
period must be consistent with the requirements of the Administrative 
Procedure Act (APA).

Classification

    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. The benefits of waiving notice-and-
comment rulemaking will serve the industry and public by allowing an 
additional month for fishery participants to harvest rockfish. Any 
delay that results in implementing this rulemaking may impact the 
ability for the fishery to start earlier. This emergency rule would 
modify the season start date for members of a rockfish cooperative as 
part of the Central Gulf of Alaska Rockfish Program (Rockfish Program) 
for the 2021 fishing year. This emergency rule is intended to provide 
flexibility to Rockfish Program participants by moving the season start 
date from May 1, 2021 to April 1, 2021. This emergency rule does not 
modify other provisions of the Rockfish Program.
    This emergency rule is in response to the recent and unforeseen 
impacts that have prompted a limited shoreside market for flatfish as a 
result of the unforeseen lack of economically viable groundfish markets 
and the continued impacts of the COVID-19 pandemic and associated 
health concerns on the members of rockfish cooperatives. The lack of 
the flatfish market, comprising species such as arrowtooth flounder, 
have created a processing gap for the month of April in Kodiak. 
Modifying the season start to one month earlier will provide additional 
flexibility to Rockfish Program participants to mitigate negative 
economic and social impacts to harvesters and processors and the 
community of Kodiak, Alaska. Without the increased flexibility of an 
earlier season start date, if a COVID outbreak occurs resulting in the 
reduction of processing capacity for several weeks, the rockfish season 
may conflict with the summer salmon fisheries, causing harvesters and 
processors to choose between revenue sources. It is likely that a 
significant portion of the harvest could be forgone. The associated 
loss in harvesting and processing revenues would likely impact the 
harvesters, crew, and communities that are active in the Rockfish 
Program.
    Industry participants notified the Council and NMFS on January 29, 
2021, of the continued safety and health concerns of the ongoing 
pandemic and seafood tariffs may impact Rockfish Program participants 
for the 2021 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 proposed season start date. The 
Rockfish Program season start date is May 1 and there is not enough 
time to follow the standard rulemaking process prescribed by the 
Magnuson-Stevens Act and required by the APA. NMFS has no other way 
than this emergency rule to amend the season start date in time to 
restore forgone fishing opportunities for 2021. Allowing for a longer 
time to harvest rockfish quota will provide immediate social and 
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 
additional flexibility to Rockfish Program participants to harvest and 
process the quota over a longer timeframe 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.

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    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.

Collection-of-Information Requirements

    This emergency rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 15, 2021.
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 679 is amended 
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
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.


0
2. In Sec.  679.80, stay paragraph (a)(3)(ii) and add paragraph 
(a)(3)(iii) to read as follows:


Sec.  679.80   Allocation and transfer of rockfish QS.

* * * * *
    (a) * * *
    (3) * * *
    (iii) Rockfish cooperative. Fishing by vessels participating in a 
rockfish cooperative is authorized from 1200 hours, A.l.t., April 1, 
2021 through 1200 hours, A.l.t., November 15, 2021.
* * * * *
[FR Doc. 2021-05685 Filed 3-16-21; 4:15 pm]
BILLING CODE 3510-22-P