[Federal Register Volume 86, Number 92 (Friday, May 14, 2021)]
[Rules and Regulations]
[Pages 26439-26443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09558]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 210430-0093]
RIN 0648-BK52


Fisheries Off West Coast States; Emergency Action to Temporarily 
Remove 2021 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 vessels to operate as

[[Page 26440]]

both a mothership and a catcher-processor during the 2021 Pacific 
whiting fishery. This action is necessary to ensure catcher vessels in 
the at-sea whiting sector are able to fully harvest sector allocations. 
Emergency measures under this rule will allow catcher-processors to 
operate as motherships and replace mothership processing vessels that 
are unable to operate in the at-sea whiting sector during the ongoing 
COVID-19 pandemic and resulting high economic uncertainty in 2021.

DATES: 
    Effective date: Effective May 14, 2021 until November 10, 2021.
    Comment date: Comments must be submitted by June 14, 2021.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2021-0035 by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov 
and enter NOAA-NMFS-2021-0035 in the Search box, click the ``Comment'' 
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://ecfr.federalregister.gov/. 
Background information and analytical documents are available at the 
NMFS West Coast Region website at: http://www. https://www.fisheries.noaa.gov/species/west-coast-groundfish.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: The Pacific Coast Groundfish Fishery 
Management Plan (FMP) prohibits processing vessels in the at-sea 
Pacific whiting fishery from operating as both a mothership (MS) and 
catcher processor (C/P) during the same calendar year. C/P vessels are 
capable of both harvesting and processing catch at-sea, while MS 
vessels solely process catch delivered by other vessels (referred to as 
catcher vessels). By design, some MS vessels are built solely to 
process catch delivered by other vessels while at-sea, whereas C/P 
vessels are capable of harvesting catch, and receiving deliveries from 
catcher vessels. Because of this, some processing vessels are able to 
switch between the C/P and MS sectors, while other vessels are not. To 
help ensure market stability in the separate sectors, current 
regulations do not allow processing vessels to switch between the MS 
and C/P sectors in a single calendar year. Under existing restrictions, 
a decision to operate a processing vessel as a C/P in response to the 
ongoing pandemic would preclude the vessels from operating as an MS for 
the remainder of the 2021 fishing year, and vice versa. Catcher vessels 
in the at-sea whiting sector rely on MS vessels to accept delivery of 
their catch and, as a result, the amount of whiting these vessels can 
harvest is limited by the availability of at-sea processing vessels in 
the MS sector. Losing an MS processing vessel would prevent catcher 
vessels from harvesting their 2021 Pacific whiting allocations. The 
remaining processing vessels participating in the MS sector would not 
possess the capacity to receive deliveries from all catcher vessels for 
the 2021 Pacific whiting season.
    During the March 2021, Pacific Fishery Management Council (Council) 
meeting, industry members from the MS cooperative submitted a letter to 
the Council requesting action to address this issue. In their letter, 
industry members estimated that the loss of one MS processing vessel 
would leave approximately 24 percent of the MS sector allocation 
unharvested. The Council Groundfish Advisory Panel (GAP) supported the 
industry statement, and estimated economic impacts that would result 
from lost at-sea processing capacity. The Councils Groundfish 
Management Team (GMT) provided additional analysis showing that 
compared to 2016-2019 fishing years, the proportion of whiting 
harvested in 2020 decreased by 13 percent in the MS sector and 2 
percent in the C/P sector. The GMT stated these decreases likely 
reflect COVID-19 impacts, including a lack of processing vessels 
available to catcher vessels due to attempts to minimize the spread 
COVID-19.
    In 2020, NMFS issued an emergency rule (85 FR 37027, June 19, 2020) 
to allow vessels to operate as an MS and a C/P in the same year in 
response to industry requests and Council recommendation. During the 
2020 whiting season, several at-sea processing vessels experienced 
COVID-19 outbreaks, forcing them to halt operations to prevent 
spreading infection to additional vessels and shorebased facilities. 
COVID-19 outbreaks and resulting shutdowns increased operational costs 
and caused foregone opportunities in the at-sea whiting fishery. In 
2020, five MS permits were used to process MS allocations. The 2020 
emergency action (85 FR 37027, June 19, 2020) provided temporary 
operational flexibility for the at-sea sector for 180 days. However, it 
was unforeseen when the Council made its recommendation in 2020 how 
long the COVID-19 pandemic would last, how COVID-19 disease variants 
would emerge, and when vaccination efforts would be complete.
    On March 9, 2021, 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 vessel during the 2021 Pacific 
whiting season. This action would not be an extension of the 2020 
emergency rule (85 FR 37027, June 19, 2020). Vessels would not be 
required to declare which sector they will operate in for the year at 
the beginning of the season. This emergency action would allow at-sea 
Pacific whiting processing vessels to switch operations for 180 days 
after publication. Additionally, these temporary measures can be 
extended for 186 days if the COVID-19 health emergency persists. There 
is continued risk to at-sea whiting vessels and loss of processing 
capacity should a COVID-19 outbreak occur onboard a processing vessel. 
Because of this risk and uncertainty, members of industry and the 
Council GAP and GMT advisory bodies recommended the Council take 
emergency action to allow available vessels to operate as both types of 
processing vessels for the 2021 fishing year to avoid potential 
economic hardship. In the event of a COVID-19 outbreak onboard a 
processing vessel, flexibility provided by removing seasonal processing 
restrictions under these emergency measures could allow other vessels 
to process MS sector whiting allocations that at-sea whiting catcher 
vessels would not otherwise be able to deliver. Therefore, the Council

[[Page 26441]]

has recommended that NMFS initiate emergency action in 2021 to provide 
operational flexibility to the at-sea sectors by temporarily allow 
processing vessels to operate as both an MS and a C/P in the same 
calendar year.

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). 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.
    In addition, the Magnuson-Stevens Act section 305(c)(3) can allow 
for an extension of an emergency rule for an additional 186 days if the 
public has had the opportunity to comment and, in the case of a Council 
recommendation for emergency regulations or interim measures, the 
council is actively preparing a fishery management plan, plan 
amendment, or proposed regulations to address the emergency or 
overfishing on a permanent basis.

Rationale and Effects

    At the March 2021 meeting, the Council addressed requests from 
whiting fishery stakeholders after considering a range of factors. 
These factors include, but are not limited to:
     At the time of the emergency rule request in 2020, the 
state of knowledge of the coronavirus and potential impacts of the 
COVID-19 pandemic was limited.
     It was unforeseen that whiting fishery participants would 
still be dealing with the reduced fishing capacity and operational 
shutdowns due to COVID-19 one year later.
     It was unforeseen that the fishing industry would not be 
vaccinated for COVID-19 by the start of the 2021 fishing season. Ready 
access to vaccinations is unknown throughout the duration of the 
whiting season.
     The increase and spread of COVID-19 variants is recent and 
unforeseen.
     It was unforeseen how the development and implementation 
of local, State and national health directives would impact the fishing 
industry in response to a vessel outbreak in the fishing industry.
    Under these emergency measures, temporarily lifting the restriction 
on MS and C/P operations would increase the likelihood that MS catcher 
vessels have markets to which to deliver catch throughout the 2021 
fishing season. 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 
catcher vessels to harvest MS sector allocations and provide catch 
revenue to the respective vessel crews. In the event that additional 
processing vessels cannot commit to taking deliveries from catcher 
vessels for the remainder of the 2021 Pacific whiting season (due to 
changes in business plans or because a processing vessel is rendered 
inoperable due to COVID-19 outbreaks, for example) this emergency rule 
may provide additional harvesting and processing opportunities for at-
sea Pacific whiting fishery participants. This action would help 
promote health and human safety by allowing processing vessels to 
quarantine while minimizing economic harm to at-sea whiting catcher 
vessels. This action would provide operational flexibility for up to 
six MS permits that would allow processing vessel owners and operators 
to plan and make decisions that do not require a tradeoff in health and 
human safety for economic opportunity.
    In light of best available information, the status of the whiting 
resource, and the potential social and economic costs of maintaining 
the existing permit transfer restrictions, 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 vessel from operating as a MS or C/P in the 
same calendar year, effective May 14, 2021. This action temporarily 
(for 180 days) allows a processing vessel to operate as both an MS and 
C/P in the same calendar year, but not on the same trip. This action 
does not modify or change any other aspects of the at-sea Pacific 
whiting fishery. Owners of processing vessels that intend to operate as 
both an MS and a C/P during the 2021 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 vessel 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 vessel under a valid MS permit per regulations 
in 50 CFR 660.25(b). The owner of a processing vessel currently 
registered under an MS permit may also operate as a C/P by submitting a 
request to NMFS Permits to register the processing vessel 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 vessel and process 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 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 vessel operating for the first time in either the 2021 
MS coop fishery or the 2021 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 vessels operating in the respective coop and includes the 
new processing vessel, 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

[[Page 26442]]

may not be changed until completion of the trip. A processing vessel 
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).
    (5) Economic Data Collection (EDC) Program. A separate EDC form is 
required for the owner, lessee, charterer of a mothership vessel 
registered to an MS permit as well as owner, lessee, charterer of a 
catcher processor vessel registered to a C/P-endorsed limited entry 
permit. If a vessel holds both types of permit in one calendar year, 
two EDC forms must be submitted as specified at 50 CFR 660.114.
    (6) Expiration of Emergency Measures. Vessels that have operated as 
both an MS and C/P in 2021 would be required to cease operations for 
the remainder of the year following expiration of these emergency 
measures, unless otherwise extended. NMFS will notify any such vessels, 
prior to expiration, to limit the potential impact of expiration of 
these measures.

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 take 
action to extend the emergency measures before expiration.

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 
prior notice and public comment is not required 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 2021 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. 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 public 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 
alleviates a restriction that would place MS-dependent catcher vessels 
at an economic disadvantage in the 2021 Pacific whiting fishery. 
Immediate implementation of 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 MS cooperative or C/P 
cooperative.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    The Regulatory Flexibility Act does not apply to this emergency 
rule because prior notice and opportunity for public comment is not 
required.

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 (VMS) Requirements for the Pacific Groundfish Fishery. Prior to 
leaving port, an at-sea Pacific whiting processing vessel must declare 
whether it will be operating in the MS sector or the C/P sector for 
each trip. 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. In addition, this action does not change existing recordkeeping 
and reporting requirements. 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: May 3, 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 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 May 14, 2021 until November 10, 2021, 
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) through (ii) and 
(e)(3)(i) through (ii) to read as follows:


Sec.  660.112  Trawl fishery--prohibitions.

* * * * *
    (d) * * *
    (3) * * *
    (i) Effective May 14, 2021 until November 10, 2021, 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) * * *

[[Page 26443]]

    (i) Effective May 14, 2021 until November 10, 2021, 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) 
through (2), (f)(1)(iii), and (f)(2)(i)(A) through (B) to read as 
follows:


Sec.  660.150  Mothership (MS) Coop Program.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (D) Under emergency measures effective May 14, 2021 until November 
10, 2021, notwithstanding any other section of these regulations, a 
vessel may operate as both an MS and a C/P during the 2021 Pacific 
whiting primary season, but not on the same fishing trip.
* * * * *
    (2) * * *
    (ii) * * *
    (B) * * *
    (1) Under emergency measures effective May 14, 2021 until November 
10, 2021, notwithstanding any other section of these regulations, a 
vessel may operate as both an MS and C/P during the 2021 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 May 14, 2021 until November 10, 2021, 
notwithstanding any other section of these regulations, vessels may 
operate as both an MS and a C/P during the 2021 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 May 14, 2021 until November 10, 
2021, a vessel registered to an MS permit is exempt from this 
declaration and may also operate as a C/P during the 2021 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) 
through (2), (e)(1)(iii)(A) through (B), and (e)(2)(i)(A) through (B) 
to read as follows:


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

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (D) Effective May 14, 2021 until November 10, 2021, notwithstanding 
any other section of these regulations, a vessel may operate as both an 
MS and a C/P during the 2021 Pacific whiting primary fishing season, 
but not on the same fishing trip.
* * * * *
    (ii) * * *
    (A) * * *
    (1) Under emergency measures effective May 14, 2021 until November 
10, 2021, a vessel may operate as both a mothership and C/P during the 
2021 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 May 14, 2021 until November 10, 2021, 
notwithstanding any other section of these regulations, vessels may 
operate as both an MS and a C/P during the 2021 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 May 14, 2021 until November 10, 
2021, a vessel registered to a C/P endorsed permit is exempt from this 
declaration and may also operate as an MS during the 2021 Pacific 
whiting primary season, even if the permit owner previously declared to 
operate solely as a C/P.
    (B) [Reserved]
* * * * *
[FR Doc. 2021-09558 Filed 5-13-21; 8:45 am]
BILLING CODE 3510-22-P