[Federal Register Volume 86, Number 235 (Friday, December 10, 2021)]
[Rules and Regulations]
[Pages 70420-70422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26659]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 211203-0251]
RIN 0648-BL01


Fisheries Off West Coast States; Emergency Action to Temporarily 
Reopen the Sablefish Primary Fishery Season for Vessels Using Pot Gear

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

ACTION: Temporary rule; emergency action.

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SUMMARY: This emergency rule temporarily reopens the 2021 sablefish 
primary fishery for vessels using pot/trap gear effective December 10, 
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.

DATES: Effective December 10, 2021, until December 31, 2021.

ADDRESSES: 

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].

[[Page 70421]]


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 operating under a 7-month season. The 
7-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.
    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. 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. 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 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.
    On October 29, 2021, NMFS took emergency action to extend the 
sablefish primary fishery season for vessels using bottom longline gear 
from October 31 to December 31 for the 2021 fishing year (86 FR 59873). 
The emergency action also extended the incidental halibut retention 
allowance for the sablefish primary fishery, north of Point Chehalis, 
Washington, from October 31 to December 7, 2021. The Council 
recommended the emergency extension for the sablefish primary fishery, 
which includes vessels fishing with longline and/or pot gear. Due to 
lack of a Marine Mammal Protection Act (MMPA) section 101(a)(5)(E) 
permit for sablefish pot gear, however, NMFS only issued the temporary 
season extension for vessels using bottom longline gear.
    On October 22, 2021, NMFS published a notice of proposed issuance 
of a MMPA section 101(a)(5)(E) permit and proposed negligible impact 
determination (NID) (86 FR 58641). On December 10, 2021, NMFS will 
issue a MMPA section 101(a)(5)(E) permit for the sablefish pot gear 
fishery.

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 extension, an 
emergency action to reopen the fishery for vessels using pot/trap gear 
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 December 10, 2021, this action temporarily reopens the 
2021 sablefish primary season for limited entry, sablefish-endorsed 
vessels using

[[Page 70422]]

pot/trap gear North of 36[deg] N lat., to December 31, 2021 as defined 
at 50 CFR 660.11.

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 Groundfish Advisory Panel, 
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. 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)(3) because it 
would be counter to public interest to delay implementation of 
emergency measures intended to address a time-sensitive management 
problem, consistent to the rationale described above. Waiving the 30-
day delayed effectiveness for this rule is necessary allow maximum 
socioeconomic benefits to the fishery and coastal communities in 
Washington, Oregon, and California. Not extending the sablefish primary 
fishery season for vessels using pot/trap gear would present immediate 
serious economic impacts without contributing to the economic goals of 
the sablefish tier program.
    This action is being taken pursuant to the emergency provision of 
Magnuson-Stevens Act and is exempt from Office of Management and Budget 
(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: December 6, 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)(4)(v)(C)(2) and (b)(4)(vi)(D)(3) 
to read as follows:


Sec.  660.25   Permits.

* * * * *
    (b) * * *
    (4) * * *
    (v) * * *
    (C) * * *
    (2) Emergency rule extending sablefish primary season for vessels 
using pot gear. Effective December 10, 2021, until December 31, 2021, 
notwithstanding any other section of this part, the primary sablefish 
season described at Sec.  660.231 is extended until December 31 for 
vessels registered to a sablefish-endorsed limited entry permit using 
pot/trap gear, as defined at Sec.  660.11.
* * * * *
    (vi) * * *
    (D) * * *
    (3) Emergency rule extending sablefish primary season for vessels 
using pot gear. Effective December 10, 2021, until December 31, 2021, 
notwithstanding any other section of this part, the primary sablefish 
season described at Sec.  660.231 is extended until December 31 for 
vessels registered to a sablefish-endorsed limited entry permit using 
pot/trap gear, as defined at Sec.  660.11.
* * * * *

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


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

* * * * *
    (d) * * *
    (2) * * *
    (ii) Emergency rule extending sablefish primary season for vessels 
using pot gear. Effective December 10, 2021, until December 31, 2021, 
notwithstanding any other section of this part, the primary sablefish 
season described at Sec.  660.231 is extended until December 31 for 
vessels registered to a sablefish-endorsed limited entry permit using 
pot/trap gear, as defined at Sec.  660.11.
* * * * *

0
4. In Sec.  660.231, add paragraph (b)(1)(ii) to read as follows:


Sec.  660.231   Limited entry fixed gear sablefish primary fishery.

* * * * *
    (b) * * *
    (1) * * *
    (ii) Emergency rule extending sablefish primary season for vessels 
using pot gear. Effective December 10, 2021, until December 31, 2021, 
notwithstanding any other section of this part, North of 36[deg] N 
lat., the sablefish primary season for the limited entry, fixed gear, 
sablefish-endorsed vessels using pot/trap gear, as defined at Sec.  
660.11, closes at 12 midnight 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).
* * * * *

[FR Doc. 2021-26659 Filed 12-9-21; 8:45 am]
BILLING CODE 3510-22-P