[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Rules and Regulations]
[Pages 59873-59876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23650]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 211026-0217]
RIN 0648-BK94


Fisheries Off West Coast States; Emergency Action to Temporarily 
Extend the Sablefish Primary Fishery Season

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

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

-----------------------------------------------------------------------

SUMMARY: This emergency rule temporarily extends the 2021 sablefish 
primary fishery for vessels using bottom longline gear from October 31, 
2021, to December 31, 2021. This action is necessary to provide 
operational flexibility so that vessels in the sablefish primary 
fishery are able to fully harvest their tier limits despite high 
economic uncertainty in 2021. This action would also extend the 
incidental halibut retention allowance provision for the primary 
fishery north of Point Chehalis, Washington from October 31, 2021, to 
December 7, 2021.

DATES: Effective October 29, 2021, until December 31, 2021. Comments 
must be received by November 29, 2021.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2021-0095 by any of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal.
    Go to https://www.regulations.gov and enter NOAA-NMFS-2021-0095 in 
the Search box, click the ``Comment'' icon, complete the required 
fields, and enter or attach your comments.
    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 and supporting documents, including a 
Supplemental Information Report prepared for this action, are 
accessible via the internet at the Office of the Federal Register 
website at https://www.federalregister.gov. Background information and 
documents are also available at the NMFS West Coast Region website at: 
https://www.fisheries.noaa.gov/species/west-coast-groundfish and at the 
Pacific Fishery Management Council's website at https://www.pcouncil.org/managed_fishery/groundfish/.

FOR FURTHER INFORMATION CONTACT: Abbie Moyer, phone: 206-305-9601, or 
email: [email protected].

SUPPLEMENTARY INFORMATION: The primary sablefish fishery tier program 
is a limited access privilege program set up under Amendment 14 to the 
Pacific Coast Groundfish Fishery Management Plan (PCGFMP); which was 
approved by the Pacific Fishery Management Council (Council) in 2000 
and was implemented by NMFS in 2001(66 FR 41152, August 7, 2001). 
Participants hold limited entry permits with a pot gear and/or longline 
gear endorsement and a sablefish endorsement.
    Under Amendment 14, as set out in 50 CFR 660.231, the permit holder 
of a sablefish-endorsed permit receives a tier limit, which is an 
annual share of the sablefish catch allocation to this sector. NMFS 
sets three different tier limits through the biennial harvest 
specifications and management measures process (for the 2021 limits, 
see 85 FR 79880, December, 11 2020); and up to three permits may be 
stacked at one time on a vessel participating in the fishery. Stacked 
tier limits are combined to provide a cumulative catch limit for that 
vessel. After vessels have caught their full tier limits, they are 
allowed to move into other fisheries for sablefish, specifically the 
daily trip limit (DTL) fishery or the open access fishery, or fisheries 
for other species.
    Under Amendment 14, the sablefish primary season has historically 
been open from April 1 through October 31 of each year, though 
individual permit holders may only fish up to their tier limits so may 
be required to cease fishing prior to October 31. These season dates 
were put into regulation during the development and implementation of 
the fishery under Amendment 14. Prior to the implementation of 
Amendment 14, the sablefish fishery had operated as a `derby' style 
fishery, with a season length lasting a few weeks to a few days. Under 
Amendment 14, the fishery began

[[Page 59874]]

operating under a seven-month season. The seven-month season structure, 
as opposed to a year-long season, was intended to allow for timely 
catch accounting so that the sector allocation was not exceeded.
    Vessels in the primary fishery north of Point Chehalis, Washington 
are also allowed to retain incidentally caught Pacific halibut up to a 
specific limit specified at 50 CFR 660.231(b)(3)(iv). Halibut are 
encountered regularly in the normal operation of the sablefish primary 
fishery due to the co-occurrence of halibut and sablefish in the same 
environments, and the design and function of fixed gear. This retention 
is allowed until the sablefish primary season ends and it contributes 
additional economic value to this sector.
    At the September 2021 Council meeting, the Council's Groundfish 
Management Team (GMT) provided analysis of the 2021 sablefish primary 
fishery participation and performance compared to prior years of the 
fishery. The GMT demonstrated in their analysis that from 2011 to 2019, 
annual attainment averaged over 90 percent of total sablefish tier 
allocations, with 65 percent harvested between April and mid-September. 
By contrast, the GMT showed the fishery in 2021 has only attained 42 
percent of its allocation as of mid-September. This underattainment is 
attributed to unforeseen delays related to the ongoing COVID-19 
pandemic that have resulted in management problems for the harvesting 
fleet, processors and sales managers to catch, process and market 
sablefish in a timely manner within the current sablefish primary 
fishery season of April 1, 2021 to October 31, 2021.
    In 2020, NMFS issued an emergency rule (85 FR 68001, October 27, 
2020) to temporarily extend the 2020 sablefish primary fishery from 
October 31, 2020 to December 31, 2020 in response to industry requests 
and the Council recommendation. Between the season start date on April 
1 and mid-September, the 2020 sablefish primary fishery participants 
also experienced unusually high underattainment attributed to 
unforeseen delays related to the COVID-19 pandemic. The delays were 
caused by local travel restrictions, postponed season start dates, and 
quarantine requirements.
    The 2020 emergency action (85 FR 68001, October 27, 2020) extending 
the sablefish primary fishery season resulted in an additional 249.9 
metric tons in landings and $857,833 in revenue for fishery 
participants. When the Council recommended emergency action in 2020, it 
was unforeseen how long the COVID-19 pandemic would last, how COVID-19 
disease variants would emerge, or when vaccines would be available. 
There is a continued disruption because of COVID-19 to the sablefish 
primary fishery, which has prevented processors from keeping a full 
contingent of process workers, prevented shoreside processors from 
opening, and prevented vessels from sailing with full crews in 2021. 
Because of this risk and uncertainty, members of industry and the 
Council Groundfish Advisory Subpanel (GAP) and GMT advisory bodies 
recommended the Council take emergency action to extend the sablefish 
primary fishery season in 2021 to reduce economic hardships. The GMT 
estimated that if the sablefish primary fishery season closed on 
October 31, 2021, the fishery would only attain 64 percent of its 
allocation, which equates to about $2.76 million in lost ex-vessel 
revenue and additional economic benefits for coastal communities.
    The Council reviewed the information provided by the GMT and by 
fishery stakeholders and discussed options to provide relief to 
commercial fishermen in this sector from economic losses as a result of 
the recent unforeseen events associated with the ongoing COVID-19 
pandemic that began in approximately March 2020. These unforeseen 
events have adversely affected commercial fishermen throughout the 
Council's jurisdiction for an extended period of time. These events 
have also caused serious management problems by making it more 
difficult to achieve optimum yield (OY) for sablefish.
    The Council recommended that NMFS implement an emergency action to 
extend the sablefish primary fishery season from October 31, 2021, to 
December 31, 2021, to allow participants more time to harvest their 
full tier limits. As part of the emergency action, the Council also 
recommended an extension of the incidental halibut retention allowance 
north of Point Chehalis, Washington, to December 7, 2021. The retention 
allowance ensures additional economic benefits and reduces regulatory 
discards of commercially valuable incidental halibut.

Criteria and 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 (62 
FR 44421; August 21, 1997) list three criteria for determining whether 
an emergency exists. Specifically, NMFS' policy guidelines require that 
an emergency: (1) Result from recent, unforeseen events or recently 
discovered circumstances; (2) present 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 rulemaking process.
    NMFS has evaluated all relief mechanisms, and given the limited 
time remaining in the sablefish primary fishery season, an emergency 
action to extend the season is the only mechanism sufficient to provide 
participants access to their quota. NMFS is issuing this emergency rule 
in compliance with these guidelines to prevent significant direct 
economic loss and preserve economic opportunities that otherwise might 
be foregone.
    This emergency action will help the fishery achieve, but not 
exceed, the allocation of sablefish to the sablefish primary fishery, 
and the sablefish annual catch limit. NMFS evaluated the anticipated 
effects of this emergency action and determined that the effects fall 
within those described in the Environmental Assessment for the 2021-
2022 Groundfish Harvest Specifications and Management Measures; which 
is tiered from the Harvest Specifications and Management Measures for 
2015-2016 and Biennial Periods Thereafter Final Environmental Impact 
Statement (EIS) which discloses the longer-term framework and 
environmental impacts of the biennial specifications process. NMFS 
documented this decision-making process in a Supplemental Information 
Report (see ADDRESSES).

Emergency Measures

    Effective October 29, 2021, this action temporarily extends the 
2021 sablefish primary season for limited entry, sablefish-endorsed 
vessels using bottom longline gear North of 36[deg] N lat., from 
October 31, 2021, to December 31, 2021. NMFS is only implementing the 
emergency season extension for vessels in this sector that use bottom 
longline gear as defined at 50 CFR 660.11.
    The sablefish primary fishery includes vessels fishing with both 
longline and pot gear. West coast sablefish pot gear fisheries are 
considered Category II fisheries under the Marine Mammal Protection 
Act's (MMPA) List of Fisheries, indicating

[[Page 59875]]

occasional interactions with marine mammals, due to occasional 
incidental mortality and serious injury to Endangered Species Act-
listed humpback whales (the CA/OR/WA stock of humpback whales). All 
other West Coast groundfish fisheries, including trawl and longline 
fisheries, are considered Category III fisheries under the MMPA, 
indicating a remote likelihood of, or no known serious injuries or 
mortalities to, marine mammals.
    Because pot gear fisheries are Category II fisheries, NMFS is 
required to issue a MMPA section 101(a)(5)(E) permit for the taking of 
marine mammals after making a negligible impact determination (NID). 
NMFS issued a permit for the sablefish pot gear fisheries on September 
4, 2013 (amended April 23, 2015 (80 FR 22709)) which expired on 
September 4, 2016 (78 FR 54553). The Council recommended the emergency 
extension for the sablefish primary fishery, which would include 
vessels fishing with longline and/or pot gear. While NMFS believes an 
emergency exists for all vessels in the sablefish primary fishery 
season, due to lack of a section 101(a)(5)(E) permit for sablefish pot 
gear, NMFS is only implementing the emergency extension for the 
sablefish primary fishery for those vessels using longline gear in this 
action. Pot/trap gear cannot be used during the season extension under 
this emergency rule. NMFS published a notice of proposed issuance of a 
MMPA section 101(a)(5)(E) permit and proposed NID on October 22, 2021 
(86 FR 58641). If a new MMPA section 101(a)(5)(E) permit for sablefish 
pot gear is published before the end of 2021, NMFS may also extend the 
primary fishery season for vessels using pot gear in a subsequent rule.
    This action includes some administrative changes to allow 
additional transfers of sablefish-endorsed limited entry permits so 
that these permits may be transferred more than once within a calendar 
year. Additionally, this emergency rule temporarily suspends the permit 
stacking limit in this fishery and the restriction on gear endorsements 
in this fishery. As such, sablefish-endorsed limited entry permits with 
a pot gear endorsement can be fished using bottom longline gear during 
this temporary extension of the season. These changes will allow 
fishery participants to appropriately take advantage of the extended 
season. This action also extends the incidental halibut retention 
allowance for the sablefish primary fishery North of Point Chehalis, 
Washington, to December 7, 2021, which is the latest date allowed by 
the International Pacific Halibut Commission. After December 7, any 
incidental halibut would need to be discarded as a prohibited species.

Classification

    The NMFS Assistant Administrator has determined that this emergency 
rule is consistent with the PCGFMP, 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 
the opportunity for public comment because it would be impracticable 
and contrary to the public interest.
    The Council made an emergency modification to their September 2021 
meeting agenda to consider taking emergency action in response to 
requests from industry representatives, the GAP, and the public. These 
entities raised concerns that many vessels would be unable to harvest 
their allocations before the sablefish primary fishery season closed 
due to unforeseen issues resulting from restrictions associated with 
the COVID-19 pandemic. The Council considered and ultimately 
recommended NMFS initiate this action on September 14, with less than 7 
weeks remaining before the closure of the sablefish primary season on 
October 31. 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 address a time-sensitive management problem. Further delays 
to extend the season through emergency action would jeopardize the 
ability of sablefish primary fishery participants to land allocations, 
and avoid economic hardship. For the reasons outlined above, NMFS finds 
it impracticable and contrary to the public interest to provide prior 
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 fishery participants at an 
economic disadvantage. Waiving the 30-day delayed effectiveness for 
this rule is necessary to allow participants in the sablefish primary 
fishery under emergency rules to continue fishing operations with 
minimal interruption beyond the status quo closure date of October 31. 
Not extending the sablefish primary fishery season past October 31 
would present immediate serious economic impacts without contributing 
to the economic goals of the sablefish tier program. Because this rule 
alleviates a restriction, which if continued would otherwise have 
serious and unnecessary economic harm on tier fishery vessels, it is 
not subject to the 30-day delayed effectiveness provision of the APA.
    This action is being taken pursuant to the emergency provision of 
Magnuson-Stevens Act and is exempt from OMB review. This final rule has 
been determined to be not significant for purposes of Executive Order 
12866.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.
    This action does not contain a collection-of-information 
requirements for purposes of the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: October 26, 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 paragraphs (b)(3)(ii)(A) and (B), 
(b)(3)(iv)(A)(3), (b)(4)(iii)(A) and (B), (b)(4)(v)(C)(1) and (2), 
(b)(4)(vi)(D)(1) and (2), and (b)(vii)(B)(1) and (2) to read as 
follows:


Sec.  660.25  Permits.

* * * * *
    (b) * * *
    (3) * * *
    (ii) * * *
    (A) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, vessels assigned to a limited entry 
``A''-endorsed permit with a pot (trap) endorsement can use longline 
gear during the primary sablefish season described at Sec.  660.231.
    (B) [Reserved].
* * * * *
    (iv) * * *
    (A) * * *
    (3) Emergency rule extending sablefish primary season. Effective

[[Page 59876]]

October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, permit stacking limits for limited entry 
permits with sablefish endorsements will be unlimited.
* * * * *
    (4) * * *
    (iii) * * *
    (A) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, permit stacking limits for limited entry 
permits with sablefish endorsements will be unlimited.
    (B) [Reserved]
* * * * *
    (v) * * *
    (C) * * *
    (1) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, the primary sablefish season described at 
Sec.  660.231 is April 1 through December 31 for vessels registered to 
a sablefish-endorsed limited entry permit using bottom longline gear, 
as defined at Sec.  660.11.
     (2) [Reserved]
* * * * *
    (vi) * * *
    (D) * * *
    (1) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, the primary sablefish season described at 
Sec.  660.231 is April 1 through December 31 for vessels registered to 
a sablefish-endorsed limited entry permit using bottom longline gear, 
as defined at Sec.  660.11.
    (2) Temporary changes in vessel registration. Effective October 29, 
2021, until December 31, 2021, a change in vessel registration that 
causes the new vessel to exceed the permit stacking limits will expire 
at 11:59 p.m. on December 31, 2021. At 11:59 p.m. on December 31, 2021, 
NMFS will return any sablefish-endorsed limited entry permit exceeding 
the permit stacking limit to the original vessel.
* * * * *
    (vii) * * *
    (B) * * *
    (1) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, Sablefish-endorsed limited entry fixed 
gear permits (without MS/CV or C/P endorsements) may be registered for 
use with a different vessel up to five times per calendar year.
    (2) [Reserved]
* * * * *

0
3. In Sec.  660.213, add paragraphs (d)(2)(i) and (ii) to read as 
follows:


Sec.  660.213  Fixed gear fishery--recordkeeping and reporting.

* * * * *
    (d) * * *
    (2) * * *
    (i) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, the primary sablefish season described at 
Sec.  660.231 is April 1 through December 31 for vessels registered to 
a sablefish-endorsed limited entry permit using bottom longline gear, 
as defined at Sec.  660.11.
    (ii) [Reserved]
* * * * *

0
4. In Sec.  660.231, add paragraphs (b)(1)(i) and (ii), (b)(2)(i) and 
(ii), (b)(3)(i)(A) and (B), and (b)(3)(iv)(A) and (B) to read as 
follows:


Sec.  660.231  Limited entry fixed gear sablefish primary fishery.

* * * * *
    (b) * * *
    (1) * * *
    (i) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, North of 36[deg] N lat., the sablefish 
primary season for the limited entry, fixed gear, sablefish-endorsed 
vessels using bottom longline gear, as defined at Sec.  660.11, closes 
at 12 noon local time on December 31, or closes for an individual 
vessel owner when the tier limit for the sablefish endorsed permit(s) 
registered to the vessel has been reached, whichever is earlier, unless 
otherwise announced by the Regional Administrator through the routine 
management measures process described at Sec.  660.60(c).
    (ii) [Reserved]
    (2) * * *
    (i) Emergency rule extending sablefish primary season. Effective 
October 29, 2021, until December 31, 2021, notwithstanding any other 
section of these regulations, all vessels authorized to fish in that 
season under paragraph (a) of this section, when fishing against 
primary season cumulative limits, may fish for sablefish with bottom 
longline gear, as defined at Sec.  660.11, whether or not they are 
registered to a limited entry sablefish-endorsed permit with a longline 
endorsement.
    (ii) [Reserved]
    (3) * * *
    (i) * * *
    (A) Emergency rule extending sablefish primary season. Under 
emergency measures effective October 29, 2021, until December 31, 2021, 
notwithstanding any other section of these regulations, an unlimited 
number of permits may be registered for use with a single vessel during 
the primary season.
    (B) [Reserved]
* * * * *
    (iv) * * *
    (A) Emergency rule extending sablefish primary season. Under 
emergency measures effective October 29, 2021, until December 7, 2021, 
notwithstanding any other section of these regulations, vessels 
authorized to participate in the sablefish primary fishery, licensed by 
the International Pacific Halibut Commission for commercial fishing in 
Area 2A (waters off Washington, Oregon, California), and fishing with 
longline gear north of Pt. Chehalis, WA (46[deg]53.30' N lat.) may 
possess and land up to 225 pounds (113 kg) dressed weight of Pacific 
halibut for every 1,000 pounds (454 kg) dressed weight of sablefish 
landed and up to two additional Pacific halibut in excess of the 225-
pounds-per-1,000-pound limit per landing. Pacific halibut taken and 
retained in the sablefish primary fishery north of Pt. Chehalis may 
only be landed north of Pt. Chehalis and may not be possessed or landed 
south of Pt. Chehalis.
    (B) [Reserved]
* * * * *
[FR Doc. 2021-23650 Filed 10-28-21; 8:45 am]
BILLING CODE 3510-22-P