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Federal Register / Vol. 86, No. 52 / Friday, March 19, 2021 / Rules and Regulations
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in Kodiak and reduces processing capacity for several weeks. This presents a serious management problem for the fishery.
Additionally, moving the season start date to April 1, 2021 will help processors continue to employ fishermen and plant personnel throughout April, a month that is typically busy with flatfish but will have an anticipated gap in 2021 due to the lack of a flatfish market. By permitting fishing and processing operations through the month of April, this emergency rule would result in a decrease in travel to and from the port of Kodiak, Alaska, thereby reducing the health risks to essential seafood workers and residents.
Criterion 3Can 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 lack of a flatfish market and the continued risk of COVID19
outbreaks across processing and fishing operations can be addressed by emergency regulations. Opening the rockfish season one month earlier does not create conservation and management concerns because the earlier start date was analyzed during the development of the Rockfish Program and is consistent with the overall goals of the Rockfish Program to provide additional harvest flexibility to cooperative participants.
To address the emergency in a timely manner, NMFS must implement an emergency rule that waives the noticeand-comment rulemaking period. The benefits of waiving notice-and-comment rulemaking will serve the industry and public by allowing an additional month for fishery participants to harvest rockfish. Any delay that results in implementing this rulemaking may impact the ability for the fishery to start earlier. Section 4 of the Analysis see ADDRESSES describes the potential additional harvest opportunities for the rockfish participants in greater detail.
Without the waiver of notice-andcomment rulemaking, the Rockfish Program cooperative participants will not have sufficient time for operational planning before the requested April 1, 2021 season opening date. Without sufficient notice of the season opening date, fish processors participating in the Rockfish Program may not have enough time to staff their facilities and coordinate fishing activities for an earlier season.
The Council could not recommend and NMFS could not implement an
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earlier season start date through the conventional notice-and-comment rulemaking process before the regular 2021 Rockfish Program begins on May 1.
Typically, the process of Council analysis and rulemaking takes at least one-year to implement. In this case, NMFS received the request for regulatory change on February 10, 2021, and the next regularly scheduled Council meeting begins April 5, 2021.
Given that the Rockfish Program starts on May 1, 2021, this rule starts the season a month earlier, and the time required for Council action and noticeand-comment rulemaking, this process could not be accomplished before the earlier start date of April 1, 2021.
As discussed further below, emergency-based fishery regulations that waive prior notice and comment and a 30-day delay in effectiveness period must be consistent with the requirements of the Administrative Procedure Act APA.
Classification The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553bB of the APA to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. The benefits of waiving notice-and-comment rulemaking will serve the industry and public by allowing an additional month for fishery participants to harvest rockfish. Any delay that results in implementing this rulemaking may impact the ability for the fishery to start earlier. This emergency rule would modify the season start date for members of a rockfish cooperative as part of the Central Gulf of Alaska Rockfish Program Rockfish Program for the 2021 fishing year. This emergency rule is intended to provide flexibility to Rockfish Program participants by moving the season start date from May 1, 2021 to April 1, 2021.
This emergency rule does not modify other provisions of the Rockfish Program.
This emergency rule is in response to the recent and unforeseen impacts that have prompted a limited shoreside market for flatfish as a result of the unforeseen lack of economically viable groundfish markets and the continued impacts of the COVID19 pandemic and associated health concerns on the members of rockfish cooperatives. The lack of the flatfish market, comprising species such as arrowtooth flounder, have created a processing gap for the month of April in Kodiak. Modifying the season start to one month earlier will provide additional flexibility to
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Rockfish Program participants to mitigate negative economic and social impacts to harvesters and processors and the community of Kodiak, Alaska.
Without the increased flexibility of an earlier season start date, if a COVID
outbreak occurs resulting in the reduction of processing capacity for several weeks, the rockfish season may conflict with the summer salmon fisheries, causing harvesters and processors to choose between revenue sources. It is likely that a significant portion of the harvest could be forgone.
The associated loss in harvesting and processing revenues would likely impact the harvesters, crew, and communities that are active in the Rockfish Program.
Industry participants notified the Council and NMFS on January 29, 2021, of the continued safety and health concerns of the ongoing pandemic and seafood tariffs may impact Rockfish Program participants for the 2021
fishing year. The Council and NMFS
had no way of foreseeing the impact on fishery operations.
Finally, the time required for noticeand-comment rulemaking would not provide relief from the forgone harvests because it would not provide sufficient time before the proposed season start date. The Rockfish Program season start date is May 1 and there is not enough time to follow the standard rulemaking process prescribed by the MagnusonStevens Act and required by the APA.
NMFS has no other way than this emergency rule to amend the season start date in time to restore forgone fishing opportunities for 2021. Allowing for a longer time to harvest rockfish quota will provide immediate social and economic benefits that outweigh the value of the deliberative notice-andcomment 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.
553d3 to waive the 30-day delay in effectiveness provision of the APA 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 additional flexibility to Rockfish Program participants to harvest and process the quota over a longer timeframe and should prevent prolonged economic losses from the potential forgone harvests.
This action is being taken pursuant to the emergency provision of the Magnuson-Stevens Act and is exempt from Office of Management and Budget OMB review.

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