80 FR 47864 - Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited Species Catch; Emergency Rule

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 153 (August 10, 2015)

This emergency rule establishes a 1,600 Chinook salmon prohibited species catch (PSC) limit for the Western and Central Gulf of Alaska (GOA) Non-Rockfish Program trawl catcher vessel sector (Non- Rockfish Program CV Sector) that is immediately available for use by the sector until the limit is reached or December 31, 2015. On January 1, 2015, an annual Chinook salmon PSC limit of 2,700 Chinook salmon became available for use by the Non-Rockfish Program CV Sector implementing Amendment 97 to the Fishery Management Plan for Groundfish of the GOA (FMP). On May 3, 2015, and considerably earlier than had been expected, NMFS prohibited directed fishing for groundfish by the Non-Rockfish Program CV Sector after determining that the sector had exceeded its annual PSC limit of 2,700 Chinook salmon. The North Pacific Fishery Management Council and NMFS recently discovered that the use of Chinook salmon PSC by the Non-Rockfish Program CV Sector in the first few months of 2015 was exorbitantly greater than the historical use, which was relied on in developing the Chinook salmon PSC limit for this sector, and that this discrepancy in use was not foreseen when the PSC limit of 2,700 Chinook salmon for the Non- Rockfish Program CV Sector was implemented under Amendment 97. Due to the directed fishing closure, significant amounts of non-pollock groundfish remain unharvested by the Non-Rockfish Program CV Sector, and fishermen, shoreside processors, and communities that participate in the Non-Rockfish Program CV Sector have limited alternatives to mitigate the resulting significant, negative economic effects. This emergency rule is necessary to relieve a restriction that is preventing non-pollock groundfish harvest by the Non-Rockfish Program CV Sector while continuing to limit the amount of Chinook salmon PSC used by this sector. This rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable law.

[Federal Register Volume 80, Number 153 (Monday, August 10, 2015)]
[Rules and Regulations]
[Pages 47864-47870]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-19428]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 150629564-5564-01]
RIN 0648-BF24


Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited 
Species Catch; Emergency Rule

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

ACTION: Emergency rule; request for comments.

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SUMMARY: This emergency rule establishes a 1,600 Chinook salmon 
prohibited species catch (PSC) limit for the Western and Central Gulf 
of Alaska (GOA) Non-Rockfish Program trawl catcher vessel sector (Non-
Rockfish Program CV Sector) that is immediately available for use by 
the sector until the limit is reached or December 31, 2015. On January 
1, 2015, an annual Chinook salmon PSC limit of 2,700 Chinook salmon 
became available for use by the Non-Rockfish Program CV Sector 
implementing Amendment 97 to the Fishery Management Plan for Groundfish 
of the GOA (FMP). On May 3, 2015, and considerably earlier than had 
been expected, NMFS prohibited directed fishing for groundfish by the 
Non-Rockfish Program CV Sector after determining that the sector had 
exceeded its annual PSC limit of 2,700 Chinook salmon. The North 
Pacific Fishery Management Council and NMFS recently discovered that 
the use of Chinook salmon PSC by the Non-Rockfish Program CV Sector in 
the first few months of 2015 was exorbitantly greater than the 
historical use, which was relied on in developing the Chinook salmon 
PSC limit for this sector, and that this discrepancy in use was not 
foreseen when the PSC limit of 2,700 Chinook salmon for the Non-
Rockfish Program CV Sector was implemented under Amendment 97. Due to 
the directed fishing closure, significant amounts of non-pollock 
groundfish remain unharvested by the Non-Rockfish Program CV Sector, 
and fishermen, shoreside processors, and communities that participate 
in the Non-Rockfish Program CV Sector have limited alternatives to 
mitigate the resulting significant, negative economic effects. This 
emergency rule is necessary to relieve a restriction that is preventing 
non-pollock groundfish harvest by the Non-Rockfish Program CV Sector 
while continuing to limit the amount of Chinook salmon PSC used by this 
sector. This rule is intended to promote the goals and objectives of 
the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, 
and other applicable law.

DATES: The amendments to Sec.  679.21(i)(2)(iii) and (i)(7)(i) are 
effective August 10, 2015. The amendment to Sec.  679.21(i)(8) is 
effective August 10, 2015, through December 31, 2015. Comments must be 
received by September 9, 2015.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2015-0082, 
by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0082, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, 
AK 99802-1668.
    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), 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 copies of the Regulatory Impact Review (RIR), and the 
Categorical Exclusion prepared for this emergency rule may be obtained 
from http://www.regulations.gov or from the Alaska Region Web site at 
http://

[[Page 47865]]

alaskafisheries.noaa.gov. The Environmental Assessment, RIR, and 
Initial Regulatory Flexibility Analysis for Amendment 93 to the FMP 
(Amendment 93 Analysis) and the Environmental Assessment, RIR, and 
Final Regulatory Flexibility Analysis for Amendment 97 to the FMP 
(Amendment 97 Analysis) are available from the NMFS Alaska Region Web 
site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
U.S. exclusive economic zone of the Gulf of Alaska (GOA) under the 
Fishery Management Plan for Groundfish of the GOA (FMP). The North 
Pacific Fishery Management Council (Council) prepared, and NMFS 
approved, the FMP under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 
et seq. Regulations governing U.S. fisheries and implementing the FMP 
appear at 50 CFR parts 600 and 679.
    This emergency rule establishes a 1,600 Chinook salmon prohibited 
species catch (PSC) limit for the Non-Rockfish Program CV Sector that 
is immediately available for use by the sector in Western and Central 
GOA non-pollock trawl fisheries until the limit is reached or December 
31, 2015, whichever occurs first. The following sections describe: (1) 
The non-pollock trawl fisheries and Amendment 97 to the FMP; (2) the 
estimation of Chinook salmon PSC in the Non-Rockfish Program CV Sector; 
(3) the implementation of Amendment 97 in 2015; and (4) the emergency 
rule and justification for emergency action.

Non-Pollock Trawl Fisheries and Amendment 97 to the FMP

    Trawl groundfish fisheries that do not target pollock (i.e., non-
pollock trawl fisheries) in the Western and Central GOA include 
fisheries for sablefish, several rockfish species, arrowtooth flounder, 
Pacific cod, shallow water flatfish, rex sole, flathead sole, deep-
water flatfish, and other non-pollock groundfish. Many of the non-
pollock trawl fisheries are multi-species fisheries, in that vessels 
catch and retain multiple groundfish species in a single fishing trip. 
Additional detail on the primary target groundfish species and catch 
amounts in the non-pollock trawl fisheries in the Western and Central 
GOA are provided in Section 1.5.1 of the RIR (see ADDRESSES), the 
Amendment 97 Analysis, and in the final 2015 and 2016 harvest 
specifications for the GOA groundfish fisheries (80 FR 10250, February 
25, 2015).
    The Council and NMFS have adopted various measures intended to 
control the catch of species taken incidentally in groundfish 
fisheries. Certain species are designated as ``prohibited species'' in 
the FMP because they are the target of other, fully utilized domestic 
fisheries. The prohibited species in the FMP are Pacific halibut, 
Pacific herring, Pacific salmon, steelhead trout, king crab, and Tanner 
crab. One of the prohibited species of greatest concern to the Council 
and NMFS is Chinook salmon. Chinook salmon is a prohibited species in 
the groundfish fisheries because it is a culturally and economically 
valuable species that is fully allocated and for which State of Alaska 
and Federal managers seek to conservatively manage harvests. The 
Council and NMFS have established a range of management measures to 
constrain the impact of GOA groundfish fisheries on Chinook salmon. A 
summary of these measures is provided in Section 1.5.2 of the RIR.
    NMFS has implemented two specific programs to limit Chinook salmon 
bycatch in the GOA trawl fisheries. In 2012, NMFS implemented Amendment 
93 to the FMP to establish separate Chinook salmon PSC limits for the 
directed pollock trawl fisheries in the Western and Central GOA (77 FR 
42629, July 20, 2012). These limits require NMFS to close the directed 
pollock fishery in the Western or Central GOA if the applicable PSC 
limit is reached (see regulations at Sec.  679.21(h)(6)). The annual 
Chinook salmon PSC limit for the directed pollock fishery in the 
Western GOA is 6,684 Chinook salmon, and the annual Chinook salmon PSC 
limit for the directed pollock fishery in the Central GOA is 18,316 
Chinook salmon (see regulations at Sec.  679.21(h)(2)(i) and 
(h)(2)(ii)). Collectively, the Chinook salmon PSC limit established for 
the pollock trawl fisheries in the Western and Central GOA is 25,000 
Chinook salmon. Amendment 93 is described in more detail in the 
Amendment 93 Analysis, the final rule implementing Amendment 93 (77 FR 
42629, July 20, 2012), and Section 1.5.3 of the RIR.
    In 2013, the Council voted to adopt Amendment 97 to the FMP to 
establish separate Chinook salmon PSC limits for the directed non-
pollock trawl fishery in the Western and Central GOA. NMFS approved 
Amendment 97 in 2014 (79 FR 71350, December 2, 2014), and it became 
effective on January 1, 2015. Amendment 97 is designed to meet three 
management goals. The first goal is to avoid exceeding the annual catch 
threshold of 40,000 Chinook salmon identified in the incidental take 
statement accompanying the November 30, 2000, biological opinion on the 
effects of the Alaska groundfish fisheries on salmon of the Pacific 
Northwest that are listed as threatened or endangered under the 
Endangered Species Act. The second goal is to minimize Chinook salmon 
bycatch to the extent practicable, consistent with the Magnuson-Stevens 
Act and National Standard 9. The third goal is to increase the amount 
of Chinook salmon stock of origin information available to NMFS and the 
Council. This third goal is not modified or otherwise affected by this 
emergency rule and is not addressed further. Amendment 97 is described 
in more detail in the Amendment 97 Analysis, the final rule 
implementing Amendment 97 (79 FR 71350, December 2, 2014), and Section 
1.5.4 of the RIR.
    For purposes of managing Chinook salmon bycatch in the Western and 
Central GOA non-pollock trawl fishery, Amendment 97 includes a long-
term average annual Chinook salmon PSC limit of 7,500 Chinook salmon 
and implements this by establishing separate Chinook salmon PSC limits 
for three fishery sectors: (1) the Trawl Catcher/Processor (C/P) 
Sector; (2) the Rockfish Program Catcher Vessel (CV) Sector; and (3) 
the Non-Rockfish Program CV Sector. Each of these sectors is described 
in Section 1.5.1 of the RIR.
    Amendment 97 establishes annual base Chinook salmon PSC limits of 
3,600 Chinook salmon for the Trawl C/P Sector, 1,200 Chinook salmon for 
the Rockfish Program CV Sector, and 2,700 Chinook salmon for the Non-
Rockfish Program CV Sector. Additionally, Amendment 97 includes 
authority for NMFS to reallocate Chinook salmon PSC from the Rockfish 
Program CV Sector to the Non-Rockfish Program CV Sector (see 
regulations at Sec.  679.21(i)(4)). NMFS is authorized to reallocate 
all of the Rockfish Program CV Sector's unused Chinook salmon PSC limit 
in excess of 150 salmon to the Non-Rockfish Program CV Sector on 
October 1 of each year, and all remaining unused Chinook salmon PSC to 
the Non-Rockfish Program CV Sector on November 15 of each year. If a 
sector reaches or is projected to reach its Chinook salmon PSC limit, 
NMFS will close directed fishing for all non-pollock groundfish species 
by vessels in that sector for the remainder of the calendar year (see 
regulations at Sec.  679.21(i)(7)). Each sector is subject to its own 
annual Chinook salmon PSC limit, and NMFS manages each sector 
separately. The rationale for the Chinook salmon PSC

[[Page 47866]]

limits selected for each of the three sectors is described in detail in 
the proposed and final rules implementing Amendment 97 (respectively, 
79 FR 35971, June 25, 2014; 79 FR 71350, December 2, 2014). Because the 
subject of this emergency rule is the Non-Rockfish Program CV Sector, 
the following paragraphs provide additional detail on the Non-Rockfish 
Program CV Sector and the Chinook salmon PSC limit selected for that 
sector.
    The Non-Rockfish Program CV Sector is composed of non-pollock trawl 
CVs authorized to fish for groundfish in the GOA that are not fishing 
under the authority of a Rockfish Program Cooperative Quota Permit. 
This sector fishes primarily for Pacific cod in the Central and Western 
GOA, and arrowtooth flounder, flathead sole, rex sole, deepwater 
flatfish, and shallow-water flatfish in the Central GOA. For a more 
detailed description of the Non-Rockfish Program CV Sector, see Section 
1.5.1 of the RIR.
    In recommending and approving the 2,700 Chinook salmon PSC limit 
for the Non-Rockfish Program CV Sector, both the Council and NMFS 
determined that the limit would accommodate groundfish harvests in most 
years in this sector. The Council and NMFS selected the Chinook salmon 
PSC limit of 2,700 after considering the historic amount of Chinook 
salmon PSC used by the Non-Rockfish Program CV Sector based on 
available fishery observer data during the time period analyzed and the 
management of the fishery at that time. These factors are briefly 
described and summarized in the following paragraphs. Additional detail 
is available in the Amendment 97 Analysis (see ADDRESSES) and the 
proposed rule for Amendment 97 (79 FR 35971, June 25, 2014) and the 
final rule implementing Amendment 97 (79 FR 71350, December 2, 2014).
    According to the Amendment 97 Analysis, the Chinook salmon PSC 
limit of 2,700 salmon is approximately 8 percent greater than the 
estimated average annual amount of Chinook salmon PSC used in the Non-
Rockfish Program CV Sector (2,489 salmon) during a representative 5-
year period (2007 through 2011) analyzed by the Council and NMFS. The 
Amendment 97 Analysis shows that the 2,700 Chinook salmon PSC limit for 
the Non-Rockfish Program CV Sector would have closed the directed 
groundfish fisheries for this sector in two out of five years during 
2007 through 2011 if that PSC limit had been in effect.
    Data from 2007 through 2011 in the Amendment 97 Analysis indicate 
that almost all of the Chinook salmon PSC by the Non-Rockfish Program 
CV Sector occurred in the Central GOA. Average annual Chinook salmon 
PSC for the Non-Rockfish Program CV Sector from 2007 through 2011 in 
the Western GOA was 44 Chinook salmon, ranging from a high of 107 
Chinook salmon in 2008 to a low of zero Chinook salmon in 2011. 
Therefore, Chinook salmon PSC in the Central GOA represented nearly 98 
percent of the average annual Chinook salmon PSC, and the Western GOA 
represented only 2 percent of the Chinook salmon PSC in the Non-
Rockfish Program CV Sector from 2007 through 2011. Additionally, the 
data in the Amendment 97 Analysis show that Chinook salmon PSC in the 
Western GOA occurs during the first few months of the year when Non-
Rockfish Program CV Sector vessels are participating in a Pacific cod 
fishery in the Western GOA. When that fishery closes, Non-Rockfish 
Program CV Sector vessels fish in the Central GOA for the remainder of 
the year. See Section 1.5.7 of the RIR for additional detail.

Estimation of Chinook Salmon PSC in the Non-Rockfish Program CV Sector

    NMFS uses observer data to account for Chinook salmon PSC by 
participants in the GOA groundfish fisheries, including the Non-
Rockfish Program CV Sector.
    Prior to 2013, NMFS did not deploy observers on vessels that were 
less than 60 feet in length overall. Because a number of vessels within 
the Non-Rockfish Program CV Sector vessels that participate in non-
pollock groundfish fisheries in the Western GOA are less than 60 feet 
in length, NMFS estimated Chinook salmon PSC in the Western GOA for 
this sector by using observer information from a different group of 
vessels that are equal to or greater than 60 feet in length and that 
typically participate in Central GOA non-pollock groundfish fisheries. 
The Council relied on these estimates of Chinook salmon PSC in 
developing its Chinook salmon PSC limit for the Non-RF Program CV 
Sector. Those estimates were the best available data for Chinook salmon 
PSC use in the Non-Rockfish Program CV Sector during the years examined 
by the Council in the Amendment 97 Analysis.
    NMFS implemented the restructured observer program in 2013 (77 FR 
70062, November 21, 2012). An important change in sampling methodology 
under the new observer program is to deploy observers on trawl vessels 
under 60 feet and greater than 40 feet. NMFS had not deployed observers 
on vessels of this length prior to the restructured program. In 2013 
and 2014, NMFS included these vessels in the partial coverage category 
as part of the ``vessel selection'' pool.
    In order to address issues that had developed with observer 
coverage rates on vessels under 60 feet in the ``vessel selection'' 
pool, as documented in the 2013 and 2014 Annual Report for the North 
Pacific Groundfish and Halibut Observer Program, NMFS moved vessels 
less than 60 feet from the ``vessel selection'' pool to the ``trip 
selection'' pool for 2015. Issues with the vessel selection pool 
include an incomplete sampling frame and difficulty achieving a target 
number of vessels to be observed. The move of vessels to the trip 
selection pool increased observer deployment on vessels under 60 feet 
in length overall, including vessels under 60 feet that participate in 
Western GOA non-pollock groundfish fisheries within the Non-Rockfish 
Program CV Sector. NMFS believes the change has improved observer data 
by better representing fishing events.

Implementation of Amendment 97 in 2015

    Amendment 97, and the Chinook salmon PSC limit of 2,700 Chinook 
salmon for the Non-Rockfish Program CV Sector, became effective on 
January 1, 2015. Based on observer data from January through April 
2015, NMFS estimated Chinook salmon PSC use in the Non-Rockfish Program 
CV Sector at 1,056 Chinook salmon in the Western GOA and 1,568 Chinook 
salmon in the Central GOA. Therefore, on April 30, 2015, NMFS 
determined that the Non-Rockfish Program CV Sector would reach its 
Chinook salmon PSC limit of 2,700 Chinook salmon and published an 
information bulletin notifying the public that NMFS was prohibiting 
directed fishing by the Non-Rockfish Program CV Sector as soon as 
possible to prevent the sector from exceeding its Chinook salmon PSC 
limit. On May 3, 2015, NMFS published a rule prohibiting directed 
fishing for non-pollock groundfish species by the Non-Rockfish Program 
CV Sector for the remainder of 2015 (May 6, 2015, 80 FR 25967).
    At its June 2015 meeting, the Council received information from 
NMFS and the public concerning the data leading to the directed fishing 
closure of the Non-Rockfish Program CV Sector and the effects of the 
closure on participants in the GOA (See section 1.5.7. and 1.6 of the 
RIR). After considering this information, the Council recommended, by a 
10 to 1 vote, that NMFS implement an emergency rule that would allocate 
an additional 1,600 Chinook salmon to the Non-Rockfish Program CV 
Sector that is immediately available for use by

[[Page 47867]]

the sector until the limit is reached or December 31, 2015, whichever 
occurs first.

The Emergency Rule and Justification for Emergency Action

    This emergency rule implements a 1,600 Chinook salmon PSC limit for 
the Non-Rockfish Program CV Sector through a new regulatory paragraph 
at Sec.  679.21(i)(8). The Council recommended an additional PSC limit 
of 1,600 Chinook salmon based on the average amount of Chinook salmon 
PSC used by the Non-Rockfish Program CV Sector to harvest its average 
amount of groundfish after May 1 (effectively the date of the closure 
in 2015) until the end of the year. Based on data in Section 1.6.1 of 
the RIR, NMFS agrees with the Council that an average of 1,600 Chinook 
salmon PSC are used by the Non-Rockfish Program CV Sector after May 1, 
based on Chinook salmon PSC use from 2010 through 2014. NMFS agrees 
that an additional 1,600 Chinook salmon will likely support prosecution 
of the groundfish fisheries in the Non-Rockfish Program CV Sector for 
the remainder of 2015.
    The Chinook salmon PSC limit implemented by this emergency rule is 
separate and distinct from the sector's annual Chinook salmon PSC limit 
established by regulations at Sec.  679.21(i)(3)(i)(C). Any amount of 
Chinook salmon PSC that were used in excess of the sector's annual 
limit will not be deducted from the PSC limit established by this 
emergency rule. The 1,600 Chinook salmon PSC limit established by this 
emergency rule is available for use by the Non-Rockfish Program CV 
Sector starting on August 10, 2015 until it is reached or December 31, 
2015, whichever occurs first. Any amount of the 1,600 Chinook salmon 
PSC limit that remains unused on December 31, 2015, will not be 
available to the sector for the 2016 fishing year.
    The Chinook salmon PSC reallocation provisions at Sec.  
679.21(i)(4) will continue to apply under this emergency rule, in the 
event that Rockfish Program CV Sector Chinook salmon PSC is available 
to reallocate to the Non-Rockfish Program CV Sector beginning on 
October 1, 2015. At this time, NMFS anticipates a small reallocation of 
PSC, or none at all, to the Non-Rockfish Program CV Sector beginning on 
October 1, 2015, based on current and anticipated use of Chinook salmon 
PSC in the Rockfish Program CV Sector through the remainder of 2015 
(see Section 1.4 of the RIR for additional detail). If there is Chinook 
salmon PSC available for reallocation on October 1, 2015, or November 
15, 2015, the total Chinook salmon PSC available for use by the Non-
Rockfish Program CV Sector in 2015 will be slightly increased.
    Regulations at Sec.  679.21(i)(2)(i) are amended to include 
reference to the new Chinook salmon PSC limit of 1,600 Chinook salmon 
for the Non-Rockfish Program CV Sector. Regulations at Sec.  
679.21(i)(7)(i), which describe the procedure NMFS follows for closing 
a non-pollock trawl sector if a Chinook salmon PSC limit is eached, are 
amended to include reference to the new Chinook salmon PSC limit for 
the Non-Rockfish Program CV Sector.
    Section 305(c) of the Magnuson-Stevens Act provides authority for 
rulemaking to address an emergency. Under that section, a Council may 
recommend emergency rulemaking if it finds an emergency exists. NMFS's 
Policy Guidelines for the Use of Emergency Rules provide that the only 
legal prerequisite for such rulemaking is that an emergency must exist, 
and that NMFS must have an administrative record justifying emergency 
regulatory action and demonstrating compliance with the Magnuson-
Stevens Act and the National Standards (see NMFS Instruction 01-101-07 
(March 31, 2008) and 62 FR 44421, August 21, 1997). Emergency 
rulemaking is intended for circumstances that are ``extremely urgent,'' 
where ``substantial harm to or disruption of the . . . fishery . . . 
would be caused in the time it would take to follow standard rulemaking 
procedures.''
    Under NMFS' Policy Guidelines for the Use of Emergency Rules, the 
phrase ``an emergency exists involving any fishery'' is defined as a 
situation that meets the following three criteria:
    (1) Results from recent, unforeseen events or recently discovered 
circumstances;
    (2) Presents serious conservation or management problems in the 
fishery; and
    (3) Can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rule making 
process.
    The following sections review each of these criteria and describe 
why the Council and NMFS determined that the May 3, 2015, closure of 
the Non-Rockfish Program CV Sector groundfish fisheries and the 
establishment of a 1,600 Chinook salmon PSC limit for the remainder of 
2015 meets these criteria.

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

    The Council and NMFS recently discovered that the use of Chinook 
salmon PSC in the Non-Rockfish Program CV Sector in early 2015 was 
exorbitantly greater than historical use, and that this significant 
discrepancy was unforeseen and unexpected. The use of Chinook salmon 
PSC by the Non-Rockfish Program CV Sector in the Western GOA resulted 
in the sector's reaching its Chinook salmon PSC limit much earlier than 
anticipated--the amount of Chinook salmon PSC taken in the Non-Rockfish 
Program CV Sector closed all of this sector's non-pollock groundfish 
fisheries approximately seven months before these fisheries would 
typically close. From January 1, 2015, through April 30, 2015 (the date 
the fleet was notified of the impending closure of the Non-Rockfish 
Program CV Sector), Chinook salmon PSC use in the Non-Rockfish Program 
CV Sector in the Western GOA was estimated at 1,056 Chinook salmon. 
This amount is nearly 10 times greater than the maximum amount of 
Chinook salmon PSC used by the Non-Rockfish Program CV Sector during 
any complete calendar year from 2007 through 2011 (in 2008, 107 Chinook 
salmon were used in the Western GOA during the entire year). Chinook 
salmon PSC use by the Non-Rockfish Program CV Sector from January 1, 
2015, through April 30, 2015, was nearly 24 times the average annual 
Chinook salmon PSC use in the Western GOA from 2007 through 2011 (44 
Chinook salmon). See Section 1.5.7 in the RIR for additional detail.
    The unexpectedly high use of Chinook salmon PSC in the Western GOA 
resulted in the Non-Rockfish Program CV Sector reaching its PSC limit 
even though Chinook salmon use in the Central GOA from January 1, 2015, 
through April 30, 2015, was not unexpectedly high (1,568 Chinook 
salmon). Chinook salmon PSC use in the Central GOA in 2015 prior to May 
1, 2015, was less than the maximum amount of Chinook salmon PSC used 
from January 1 through April 30 during any of the years the Council and 
NMFS considered when recommending Amendment 97 (2,424 Chinook salmon 
PSC were used prior to May 1 in 2010), and only slightly greater than 
the average Chinook salmon PSC use during the January 1 through April 
30 time period from 2007 through 2011 (1,011 Chinook salmon PSC were 
used on average during these years). Section 1.5.7 in the RIR provides 
additional detail. The magnitude of Chinook salmon use by the sector in 
the Western

[[Page 47868]]

GOA when compared with the average use of Chinook salmon by the sector 
in the Central GOA seems to indicate that 2015 is not simply a high 
encounter year for Chinook salmon.
    This unforeseen and unexpected increase in the amount of Chinook 
salmon PSC use occurred after the implementation of improved Chinook 
salmon PSC data collection on vessels in the Western GOA. As described 
earlier, NMFS implemented a restructured North Pacific Groundfish and 
Halibut Observer Program (Observer Program) in 2013 (77 FR 70062, 
November 21, 2012). Prior to 2013, no observer data were collected on 
vessels less than 60 feet in length overall, and observer data 
collected on vessels 60 feet in length overall and greater were used to 
generate Chinook salmon PSC estimates for these smaller vessels. 
Participation in a particular fishery may be dominated by vessels 
larger or shorter than 60 feet in length overall and Chinook salmon PSC 
use is likely to vary among fisheries depending on the location and 
timing of a fishery. Because the majority of vessels that participate 
in the Western GOA groundfish fisheries are less than 60 feet in length 
overall and were unobserved before 2013, the data used to estimate 
Chinook salmon PSC use in the Amendment 97 Analysis were derived from 
vessels greater than 60 feet in length overall.
    The use of data available under the restructured Observer Program, 
including data from vessels not previously observed in the Western GOA, 
has resulted in estimates of a substantial and unexpected amount of 
Chinook salmon PSC. This unforeseen and recently discovered increase in 
the use of Chinook salmon PSC in the Western GOA contributed 
significantly to the total amount of Chinook salmon PSC used by the 
Non-Rockfish Program CV Sector and led to the closure of the Non-
Rockfish Program CV Sector fisheries.

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

    The Council and NMFS determined that this emergency rule criterion 
is met because the early closure prevents the Non-Rockfish Program CV 
Sector from harvesting thousands of metric tons of groundfish and 
results in foregone revenue to harvesters, processors and communities 
that participate in the Non-Rockfish Program CV Sector. The closure is 
estimated to prevent harvest of 13,000 to 15,000 metric tons of 
groundfish that would otherwise be available for harvest to this sector 
through the remainder of 2015 based on an analysis of average 
groundfish catch by this sector for the years 2012 through 2014 and 
2010 through 2014 (see Section 1.5 of the RIR for additional detail). 
The lost revenue from this forgone harvest is estimated to be 
approximately $4.6 million in ex-vessel value and $11.3 million in 
first wholesale value (see Section 1.6.1 of the RIR).
    Shoreside processors and the community of Kodiak, Alaska, are 
disproportionately affected by this closure because after May, 
groundfish harvested by the Non-Rockfish CV Sector is almost 
exclusively delivered to shoreside processors operating in Kodiak (see 
Section 1.6.1 of the RIR). Sections 1.5.7 and 1.6.1 of the RIR provide 
additional information on the expected effects of the directed fishing 
closure of the Non-Rockfish Program CV Sector on harvesters, 
processors, and the community of Kodiak. This emergency rule is the 
only mechanism to restore the foregone harvest and lost revenue because 
other groundfish fisheries that could substitute for these losses are 
fully allocated and are not available to the Non-Rockfish Program CV 
Sector.
    The Council and NMFS have determined that a 1,600 Chinook limit 
will likely allow the Non-Rockfish Program CV Sector to harvest 
remaining amounts of groundfish. If 1,600 Chinook salmon PSC are made 
available to the Non-Rockfish Program CV Sector by mid-August, NMFS 
anticipates that most, if not all, the fall Pacific cod fishery will be 
harvested by the sector, and a substantial portion of the forgone 
flatfish for the latter half of 2015 will be harvested. The Council's 
objective for this Emergency Rule was to restore the lost harvesting 
opportunities to the Non-Rockfish Program CV Sector to the maximum 
extent possible while continuing to impose a limit on the use of 
Chinook salmon PSC in the GOA trawl fisheries that likely will not 
exceed the combined Chinook salmon PSC limits established under 
Amendments 93 and 97.
    The Council and NMFS also determined that implementation of this 
emergency rule will not create conservation issues with regard to 
Chinook salmon. The Council and NMFS considered the original and 
continuing goals for Amendment 97 to the FMP: to avoid exceeding 
Chinook salmon PSC use of 40,000 Chinook salmon in the GOA trawl 
groundfish fisheries, and to minimize bycatch of Chinook salmon to the 
extent practicable. The Council made its emergency rule recommendation 
after considering the average annual use of Chinook salmon PSC by all 
GOA trawl sectors for the most recent five years (2010 through 2014), 
total use of Chinook salmon PSC by all GOA trawl sectors from January 
1, 2015, through April 30, 2015, and anticipated use of Chinook salmon 
PSC by all GOA trawl sectors for the remainder of 2015 (from May 1 
through December 31). Based on this review of historic, current, and 
anticipated Chinook salmon PSC use from all trawl sectors in the 
Western and Central GOA, the Council and NMFS concluded that the 
combined GOA trawl Chinook salmon PSC in 2015 will not exceed 40,000 
even with implementation of the emergency rule.
    The Council and NMFS also concluded that although the GOA trawl 
groundfish fisheries will be authorized to take a maximum of 34,100 
Chinook salmon in 2015 under current regulations and this emergency 
rule, it is highly unlikely that the additional allocation of 1,600 
Chinook salmon for the Non-Rockfish Program CV Sector will result in 
total Chinook salmon PSC in the GOA trawl groundfish fisheries for 2015 
exceeding 32,500 Chinook salmon, the total combined pollock and non-
pollock Chinook salmon PSC limits. Sections 1.5.7 and 1.6.1 of the RIR 
describe the historic, current, and anticipated Chinook salmon PSC use 
in each of the GOA pollock and non-pollock trawl sectors, including the 
Non-Rockfish Program CV Sector. The data from Table 2 in the RIR at 
Section 1.4.3 show that an average of over 13,000 Chinook salmon were 
left unused by the GOA pollock sector in 2013 and 2014. Including 2012, 
2013, and 2014, the average Chinook salmon PSC limit remaining from the 
pollock PSC limit of 25,000 was over 11,000 Chinook salmon. Of the 
11,000 Chinook salmon remaining in the GOA pollock fishery, over 8,000 
Chinook salmon were left unused from the Central GOA, and over 3,000 
were left unused in the Western GOA. Finally, the Council considered 
the demonstrated ability of the voluntary catch share agreements in the 
GOA pollock fishery and controls implemented by this sector to control 
Chinook PSC use (see Section 1.2.1.2 in this RIR). Based on these data, 
the Council determined and NMFS agrees that it is highly unlikely that 
this emergency rule will result in total Chinook salmon PSC from all 
GOA trawl groundfish fisheries exceeding 32,500 Chinook salmon. The 
emergency rule will allow NMFS to open non-pollock groundfish fisheries 
for the Non-Rockfish Program CV Sector but still limit the overall 
amount of Chinook salmon PSC use by this sector.

[[Page 47869]]

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

    NMFS and the Council have determined that the emergency situation 
created by the May 3, 2015, closure can be addressed by emergency 
regulations. As explained earlier, an additional allocation of 1,600 
Chinook salmon PSC can be provided to the Non-Rockfish Program CV 
Sector without creating conservation and management issues for the 
resource or direct users of Chinook salmon and consistent with the 
goals of Amendment 97 (see Sections 1.6.1 and 1.6.2 of the RIR for 
additional detail).
    To address the emergency, NMFS must implement an emergency rule 
that waives the notice-and-comment rulemaking period. The benefits of 
waiving notice-and-comment rulemaking will serve the industry and 
public by allowing for additional harvest of groundfish by the Non-
Rockfish Program CV Sector. Any delay that results in implementing 
rulemaking will reduce opportunities to harvest non-pollock groundfish 
species such as flatfish and Pacific cod. The Pacific cod fishery 
reopens for this sector in early September, and represents the primary 
fall opportunity for restoring lost catches and groundfish revenue for 
this sector. Sections 1.6.1 and 1.6.2 of the RIR describe the potential 
additional harvest opportunities for the Non-Rockfish Program CV Sector 
in greater detail.
    Without the waiver of notice-and-comment rulemaking, the Non-
Rockfish Program CV Sector will not have sufficient time to prosecute 
these fisheries as intended. Flatfish and Pacific cod trawl fisheries 
are high volume fisheries that require extended fishing time. Fishing 
time would be extremely limited, or unavailable, with notice-and-
comment rulemaking. For example, the trawl Pacific cod fishery closes 
by regulation on November 1, 2015, so the directed Pacific cod fishery 
is only available for harvest during a limited period of time. Vessel 
owners need time to secure new crew, which may have shifted into other 
groundfish fisheries, non-groundfish fisheries or other activities. In 
addition, vessel owners need sufficient lead time to revise fishing 
plans, restock vessels, change gear, and have the vessel travel to and 
from the fishing grounds to prosecute the reopened fisheries.
    Processors also require lead time to plan for new deliveries of 
groundfish that they have ceased to process due to the closure. Once 
the summer production cycle was altered by eliminating landings from 
the Non-Rockfish Program CV Sector, processors removed these 
traditional fishery products from their annual processing cycle and 
budget planning. Processors will need to secure market orders with 
buyers for desired finished product forms and establish pricing. 
Packaging materials and shipping containers must be delivered to 
processing plants. Processing factories must be reconfigured to process 
groundfish. Processors will also need to secure and assign labor to 
these fisheries. This emergency rule needs to be effective in advance 
of the start of the fisheries in order to provide processors with the 
time needed to plan and prepare for processing operations. Therefore, 
the benefits of the waiver of public notice and comment more than 
offset the value of standard notice-and-comment rulemaking.
    Any change to the Chinook salmon PSC limit for the non-Rockfish 
Program CV Sector will require an amendment to the FMP amendment. 
Secretarial review of FMP amendments must follow the process set forth 
in section 304 of the Magnuson-Stevens Act, which requires more time to 
complete than is available to provide relief for the Non-Rockfish 
Program CV Sector. While the normal rulemaking process is the preferred 
avenue for making regulatory changes, as it provides interested parties 
the full ability to comment, the Council and NMFS have determined that 
in this case, the cost of the foregone harvest opportunity outweighs 
the benefit of using the more protracted, standard process because it 
would be ineffective for addressing the immediate issue. The Council 
initiated a typical fishery management plan amendment process in June 
2015 to address this situation in a more permanent manner.
    The purpose of this emergency rule is to promulgate a temporary 
regulatory amendment that would provide a one-time allocation of 
additional Chinook salmon PSC to the Non-Rockfish Program CV Sector, 
while allowing continued analysis of the issue in a separate, and 
standard, amendment process. This emergency rule is needed to re-open 
groundfish trawl fisheries in order to temporarily ameliorate 
unforeseen economic consequences due to the unexpectedly high use of 
Chinook salmon PSC in the Western GOA.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this emergency rule is consistent with the National Standards, 
other provisions of the Magnuson-Stevens Act, and other applicable 
laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comment because it would be impracticable and 
contrary to the public interest. This emergency rule will allow 
groundfish fisheries for the Non-Rockfish Program CV Sector to be 
reopened as early as August 2015 to address the unforeseen, early 
closing of these fisheries in early May 2015. Once groundfish seasons 
are reopened, this emergency rule is anticipated to allow for harvest 
of most of the remainder of the non-pollock fisheries available to this 
sector and should prevent prolonged economic losses from the closure to 
the Non-Rockfish Program CV Sector and processors receiving landings 
from this sector. The reopened fisheries may partially restore the 
indirect economic effects to the community of Kodiak that would 
otherwise be lost if the fishery closing is allowed to extend to the 
end of 2015 GOA groundfish season, which is currently scheduled for 
December 31, 2015. If this rule were delayed to allow for notice and 
comment, impacted entities would likely be prevented from harvesting 
the 13,000 to 15,000 metric tons of groundfish that would otherwise be 
available to impacted entities through the remainder of 2015. The lost 
revenue from this forgone harvest is estimated to be approximately $4.6 
million in ex-vessel value and $11.3 million in first wholesale value. 
Fishermen, shoreside processors, and communities that participate in 
the Non-Rockfish Program CV Sector would have limited alternatives to 
mitigate this significant, negative economic impact due to the directed 
fishing closure. Providing an additional PSC limit of 1,600 Chinook 
salmon to the Non-Rockfish Program CV Sector as soon as possible is 
likely to restore a substantial portion of the foregone groundfish 
harvest due to the closure, restore the associated harvesting and 
processing revenues, and provide benefits to communities engaged in 
these fisheries, primarily the community of Kodiak.
    As explained earlier, after the closure of the Non-Rockfish Program 
CV Sector on May 3, 2015, NMFS became aware of the significant 
difference in Chinook salmon PSC use in 2015 in comparison with the 
level of use anticipated in the Amendment 97 Analysis. The Council and 
NMFS had no way of foreseeing that the amount of Chinook salmon PSC 
taken by this sector would be so much greater than the historic number 
of Chinook salmon PSC. The Chinook salmon PSC limit was reached 
quickly,

[[Page 47870]]

and the Non-Rockfish Program CV Sector was not able to mitigate fishing 
operations that modified where and how the fishery occurred to limit 
Chinook salmon PSC.
    Finally, the time required for notice-and-comment rulemaking would 
not provide relief from the closure of these fisheries because it would 
not provide sufficient time for participants to harvest enough 
groundfish to offset the foregone revenue due to the closure. The 
Magnuson-Stevens Act FMP amendment process sets forth certain 
requirements that must be followed, such as a 60-day comment period on 
an FMP amendment. Because the Non-Rockfish Program CV Sector must re-
open by mid-August, there is not enough time to follow the FMP 
amendment process prescribed by the Magnuson-Stevens Act and provide 
sufficient time for the sector to prosecute critical fisheries that are 
typically open the first few days of September, or for processing 
operations to prepare for receiving groundfish from landings in 
September. For fishery participants to prosecute these reopened 
fisheries in early September they must contact, secure, and redeploy 
crew; as well as restock vessels, change gear, and travel to the 
fishing grounds. For processors to be prepared to accept groundfish 
deliveries from these vessels in early September, they must secure 
market orders, prepare packaging materials, and shipping containers, as 
well as contact, secure and train and house processing laborers. NMFS 
has no other way than this emergency rule to amend these PSC limits in 
a timely manner to restore forgone fishing opportunities for 2015. 
Allowing for access to the remaining groundfish harvest for the rest of 
2015 provides immediate economic benefits that outweigh the value of 
the deliberative notice-and-comment rulemaking process.
    Similarly, for the reasons above that support the need to implement 
this emergency rule in a timely manner, the Assistant Administrator for 
Fisheries finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effectiveness provision of the Administrative Procedure Act 
and make the emergency rule effective immediately upon publication in 
the Federal Register. As stated above, NMFS anticipates that this 
emergency rule will allow for harvest of most of the remainder of the 
non-pollock fisheries available to this sector, and should prevent 
prolonged economic losses from the closure to the Non-Rockfish Program 
CV Sector and processors receiving landings from this sector.
    This action is being taken pursuant to the emergency provision of 
the Magnuson-Stevens Act and is exempt from OMB review. The RIR 
prepared for this emergency rule is available from NMFS (see 
ADDRESSES).
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is not subject to the requirement to 
provide prior notice and opportunity for public comment pursuant to 5 
U.S.C. 553 or any other law. Accordingly, no regulatory flexibility 
analysis is required and none has been prepared.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: August 3, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is amended 
as follows:

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

0
1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority:  16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447, Pub. L. 111-281.


0
2. In Sec.  679.21, revise paragraphs (i)(2)(iii) and (i)(7)(i), and 
add paragraph (i)(8) to read as follows:


Sec.  679.21  Prohibited species bycatch management.

* * * * *
    (i) * * *
    (2) * * *
    (iii) Non-Rockfish Program catcher vessel Sector. For the purpose 
of accounting for the Chinook salmon PSC limit at paragraph 
(i)(3)(i)(C) or paragraph (i)(8) of this section, the Non-Rockfish 
Program catcher vessel Sector is any catcher vessel fishing for 
groundfish, other than pollock, with trawl gear in the Western or 
Central reporting areas of the GOA and not operating under the 
authority of a Central GOA Rockfish Program CQ permit assigned to the 
catcher vessel sector.
* * * * *
    (7) * * *
    (i) Vessels in a sector defined at paragraph (i)(2) of this section 
will catch the applicable Chinook salmon PSC limit specified at 
paragraph (i)(3)(i) or paragraph (i)(8) of this section for that 
sector, NMFS will publish notification in the Federal Register closing 
directed fishing for all groundfish species, other than pollock, with 
trawl gear in the Western and Central reporting areas of the GOA for 
that sector; or
* * * * *
    (8) From August 10, 2015 until December 31, 2015, NMFS establishes 
a Chinook salmon PSC limit of 1,600 in the Western and Central 
reporting areas of the GOA for the Non-Rockfish Program catcher vessel 
Sector defined in paragraph (i)(2)(iii) of this section.

[FR Doc. 2015-19428 Filed 8-7-15; 8:45 am]
 BILLING CODE 3510-22-P