Rule2021-23650
Fisheries Off West Coast States; Emergency Action to Temporarily Extend the Sablefish Primary Fishery Season
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 29, 2021
Effective
October 29, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 207 (Friday, October 29, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23650]
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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.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="https://www.federalregister.gov">https://www.federalregister.gov</a>. Background information and
documents are also available at the NMFS West Coast Region website at:
<a href="https://www.fisheries.noaa.gov/species/west-coast-groundfish">https://www.fisheries.noaa.gov/species/west-coast-groundfish</a> and at the
Pacific Fishery Management Council's website at <a href="https://www.pcouncil.org/managed_fishery/groundfish/">https://www.pcouncil.org/managed_fishery/groundfish/</a>.
FOR FURTHER INFORMATION CONTACT: Abbie Moyer, phone: 206-305-9601, or
email: <a href="/cdn-cgi/l/email-protection#da9bb8b8b3bff4b7b5a3bfa89ab4b5bbbbf4bdb5ac"><span class="__cf_email__" data-cfemail="da9bb8b8b3bff4b7b5a3bfa89ab4b5bbbbf4bdb5ac">[email protected]</span></a>.
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
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