[Federal Register Volume 85, Number 72 (Tuesday, April 14, 2020)]
[Proposed Rules]
[Pages 20657-20661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07097]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 200330-0092]
RIN 0648-BJ34


Pacific Halibut Fisheries; Revisions to Catch Sharing Plan and 
Domestic Management Measures in Alaska

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations that would implement a ``fish up''

[[Page 20658]]

provision in the halibut and sablefish Individual Fishing Quota (IFQ) 
Program to allow Community Quota Entities (CQEs) located in IFQ 
regulatory Area 3A (Southcentral Alaska) holding category D halibut 
quota share (QS) (i.e., for use on catcher vessel less than or equal to 
35 ft (10.7 m) length overall) to have the associated IFQ harvested on 
category C vessels (catcher vessels less than or equal to 60 ft (18.3 
m) length overall) beginning August 15 of each IFQ fishing season. This 
action would also make a minor change to regulations implementing the 
IFQ Program to consolidate temporary IFQ transfer forms. This proposed 
rule is intended to promote the goals and objectives of the Northern 
Pacific Halibut Act of 1982 and other applicable laws.

DATES: Comments must be received no later than May 14, 2020.

ADDRESSES: Submit your comments, identified by docket number NOAA-NMFS-
2019-0134, by either of the following methods:
     Federal e-Rulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0134, 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. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.
    Instructions: NMFS may not consider comments if they are sent by 
any other method, to any other address or individual, or received after 
the comment period ends. All comments received are a part of the public 
record and NMFS will post the comments 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 
is publicly accessible. NMFS will accept anonymous comments (enter ``N/
A'' in the required fields if you wish to remain anonymous).
    Electronic copies of the Categorical Exclusion and the Regulatory 
Impact Review (RIR) prepared for this action are available from 
www.regulations.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted by mail to NMFS at the above address; by email to 
[email protected]; or by fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT: Doug Duncan, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION: 

Authority for Action

    NMFS manages the groundfish fisheries in the exclusive economic 
zone off Alaska under the Fishery Management Plan (FMP) for Groundfish 
of the Gulf of Alaska (GOA) and under the FMP for Groundfish of the 
Bering Sea and Aleutian Islands Management Area (BSAI). The North 
Pacific Fishery Management Council (Council) prepared the FMPs 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 FMPs appear 
at 50 CFR parts 600 and 679.
    The International Pacific Halibut Commission (IPHC) and NMFS manage 
fishing for Pacific halibut (Hippoglossus stenolepis) through 
regulations established under authority of the Northern Pacific Halibut 
Act of 1982 (Halibut Act). The IPHC adopts regulations governing the 
Pacific halibut fishery under the Convention between the United States 
and Canada for the Preservation of the Halibut Fishery of the North 
Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, 
on March 2, 1953, as amended by a Protocol Amending the Convention 
(signed at Washington, DC, on March 29, 1979). For the United States, 
regulations developed by the IPHC are subject to acceptance by the 
Secretary of State with the concurrence from the Secretary of Commerce. 
After acceptance by the Secretary of State and concurrence from the 
Secretary of Commerce, NMFS publishes the IPHC regulations in the 
Federal Register as annual management measures at 50 CFR 300.62.
    The Halibut Act, 16 U.S.C. 773c (a) and (b), provides the Secretary 
of Commerce with general responsibility to carry out the Convention and 
the Halibut Act. In adopting regulations that may be necessary to carry 
out the purposes and objectives of the Convention and the Halibut Act, 
the Secretary of Commerce is directed to consult with the Secretary of 
the department in which the U.S. Coast Guard is operating, currently 
the Department of Homeland Security.
    The Halibut Act, 16 U.S.C. 773c (c), also provides the Council with 
authority to develop regulations, including limited access regulations, 
that are in addition to, and not in conflict with, approved IPHC 
regulations. Regulations developed by the Council may be implemented by 
NMFS only after approval by the Secretary of Commerce. The Council has 
exercised this authority in the development of the IFQ Program for the 
commercial halibut and sablefish fisheries, codified at 50 CFR part 
679, under the authority of section 5 of the Halibut Act (16 U.S.C. 
773c (c)) and section 303(b) of the Magnuson-Stevens Act (16 U.S.C. 
1853(b)).

Background

    This proposed rule includes two elements. The first would modify 
regulations pertaining to the use of halibut QS and halibut IFQ held by 
CQEs in Area 3A. The second element includes minor changes to 
regulations implementing the IFQ Program that would consolidate 
temporary IFQ transfer forms. The following sections summarize the IFQ 
Program, the CQE Program, and this proposed rule.

IFQ Program

    The IFQ Program, a limited access privilege program for the fixed-
gear halibut and sablefish (Anoplopoma fimbria) fisheries off Alaska, 
was recommended by the Council in 1992 and approved by NMFS in 1993. A 
comprehensive explanation of the IFQ Program can be found in the final 
rule implementing the program (58 FR 59375, November 9, 1993). The IFQ 
Program for the sablefish fishery is implemented by the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area and Federal regulations at 50 CFR part 679 under the 
authority of the Magnuson-Stevens Act. The IFQ Program for the halibut 
fishery is implemented by Federal regulations at 50 CFR part 679 under 
the authority of the Halibut Act.
    The IFQ Program changed the management structure of the fixed-gear 
halibut and sablefish fishery by issuing QS to qualified persons who 
owned or leased a vessel that made fixed-gear landings of those species 
from 1988 to 1990. Halibut QS was issued specific to one of eight IPHC 
halibut management areas throughout the BSAI and GOA, and four vessel 
categories: Catcher/processor of any length (category A); catcher 
vessel of any length (category B); catcher vessel less than or equal to 
60 ft (18.3 m) LOA (category C); and catcher vessel less than or equal 
to 35 ft (10.7 m) LOA (category D). The amount of halibut that each QS 
holder may harvest is calculated annually and issued as IFQ in pounds 
on an IFQ permit. Under typical circumstances, the category of halibut 
IFQ must be matched to the category of vessel used to harvest it. 
Exceptions to allow a

[[Page 20659]]

smaller category of IFQ to be harvested on a larger vessel category 
(i.e., fishing category D IFQ on a category C vessel) are referred to 
as ``fish-up'' provisions.
    Although the IFQ Program resulted in significant safety and 
economic benefits for fishermen, many residents of Alaska's small, 
remote, coastal communities who held QS have transferred their QS to 
non-community residents or moved out of these communities. As a result, 
the number of resident QS holders has declined substantially in most 
remote coastal communities throughout Alaska. This transfer of halibut 
QS and the associated fishing effort out of small, remote, coastal 
communities has limited the ability of residents to locally purchase or 
lease QS.

CQE Program

    The Council developed the CQE Program to improve the ability for 
rural coastal communities to maintain long-term opportunities to access 
the halibut and sablefish resources. The Council recommended the CQE 
Program in the GOA as an amendment to the IFQ Program in 2002, and NMFS 
implemented the program in 2004 (69 FR 23681, April 30, 2004).
    The CQE Program allows 45 small, remote, coastal communities in the 
GOA to purchase and hold catcher vessel halibut QS in halibut Areas 2C, 
3A, and 3B, and catcher vessel sablefish QS in the GOA. Communities 
eligible to participate in the CQE Program in the GOA include those 
that meet criteria for geographic location, population size, historic 
participation in the halibut and sablefish fisheries, and are listed in 
Table 21 to 50 CFR part 679. Additional detail on these criteria is 
available in the final rule implementing the CQE Program (69 FR 23681, 
April 30, 2004).
    Participating communities are represented by a CQE, which is a 
NMFS-approved non-profit organization. The CQE holds QS and leases the 
IFQ derived from the underlying QS to community residents. With limited 
exceptions, QS must remain with the CQE in order to create a permanent 
asset for the community to use. Community residents who lease IFQ from 
the CQE can use the revenue to purchase their own QS. These program 
features promote community access to QS to generate participation in, 
and fishery revenues from, the commercial halibut and sablefish 
fisheries.
    The Council established limitations in the original CQE Program to 
prevent excessive consolidation of IFQ harvest into CQE communities, 
limit demand driven QS price increases for all IFQ Program 
participants, and broadly distribute the benefits from fishing 
activities among CQE communities. One limitation prohibited CQEs in 
some areas (i.e., Southcentral Alaska; Area 3A) from purchasing entry 
level category D QS. However, subsequent review by the Council and NMFS 
found that few CQEs held any halibut QS and there was no clear evidence 
demonstrating a potential conflict between the limited number of new 
IFQ Program entrants and CQEs. In 2013, NMFS revised regulations on 
vessel use caps that apply to CQE-held QS and IFQ, expanded the list of 
eligible CQE communities, and allowed CQEs to hold category D halibut 
QS in Area 3A. Additional detail is available in the final rule 
implementing these regulatory provisions (78 FR 33243, June 4, 2013). 
Generally, these changes were intended to improve the effectiveness of 
the CQE Program by minimizing program limitations.

Need for This Action

    While the expanded CQE Program has provided additional flexibility 
for eligible communities to purchase, maintain, and use QS, challenges 
still remain due to difficulties in securing favorable financing terms 
and limited available revenue streams (see Section 2.9.2 of the 
Analysis for additional detail). As of 2019, only two out of fourteen 
eligible CQEs in Area 3A had purchased halibut QS. Furthermore, public 
testimony has indicated that in those Area 3A CQE communities that have 
acquired category D halibut QS, smaller category D vessels are 
sometimes unavailable to harvest the IFQ, and that the skiffs often 
used as category D vessels are not ideal for the harsh weather and 
ocean conditions later in the season when halibut can move offshore 
(Section 2.11.3 of the RIR). IFQ Program regulations in Area 3A do not 
allow category D IFQ to be harvested on larger category C vessels which 
could limit a CQE's ability to fully utilize its halibut IFQ in certain 
circumstances. If a CQE is unable to fully harvest its annual IFQ and 
realize the associated revenue, it may face financial challenges 
fulfilling any debt service on financed QS. If no alternative funding 
is available, a CQE could be forced to sell QS, potentially eliminating 
fishery access and economic opportunities for the community.
    Modifying the regulations to allow category D IFQ to be harvested 
on larger category C vessels near the end of the IFQ season would 
provide more flexibility to CQE participants to fully harvest their 
category D IFQ in Area 3A. This would further the Council's intent of 
facilitating CQE community access to the halibut resource. By limiting 
use of the exemption to the end of the season as a contingency plan, 
this action is also consistent with the intent of the IFQ Program to 
maintain the historical vessel size characteristics of the fleet when 
possible.
    The Council's intent is reflected in the purpose and need statement 
adopted at final action at the April 2018 Council meeting. The 
Council's purpose and need, and final motion is available in the RIR 
(see ADDRESSES). Section 1.1 of the RIR also provides a summary of the 
history of this action.

This Proposed Rule

    This proposed rule includes two elements. The first element would 
modify regulations to allow halibut IFQ derived from CQE held category 
D QS in Area 3A to be used to harvest halibut on a vessel less than or 
equal to 60 ft (18.3 m) LOA beginning on August 15 of each IFQ fishing 
season. The second element of this action would make minor changes to 
regulations implementing the IFQ Program to consolidate temporary IFQ 
transfer forms.

CQE Fish-Up Provision

    The first element of this proposed rule would add a paragraph at 
Sec.  679.42(a)(2)(ii)(A) specifying that IFQ derived from CQE held QS 
assigned to category D in Area 3A could be harvested on a vessel less 
than or equal to 60 ft (18.3 m) LOA from August 15 to the end of the 
IFQ season. This action would allow eligible community residents 
leasing category D IFQ from a CQE to fish it on larger vessels near the 
end of the season. This proposed rule does not prevent category D IFQ 
held by a CQE from being fished on a category D vessel on or after the 
August 15.
    Currently, if a CQE in Area 3A has category D IFQ it cannot be 
harvested on a vessel larger than 35 ft (10.7 m). Any unharvested 
category D IFQ in excess of 10 percent of the CQE's account cannot be 
rolled over to the following year and becomes forgone harvest and 
subsequently forgone revenue to the CQE and community harvester.
    This proposed rule would only apply to Area 3A category D halibut 
QS held by a CQE located in Area 3A. CQEs located in other IFQ 
regulatory areas are not eligible to hold category D halibut QS 
assigned to Area 3A. Currently, one CQE in Area 3A owns 159,075 units 
of Area 3A category D halibut QS (6,324 IFQ pounds in 2018). If CQEs 
held the maximum amount of Area 3A category D halibut QS allowed by 
regulation, this proposed rule would apply to 1,233,740

[[Page 20660]]

halibut QS units (approximately 10 percent of the total Area 3A 
category D halibut QS, or about 0.7 percent of the total halibut QS in 
Area 3A).
    This proposed rule would provide additional flexibility for using 
category D halibut QS held by CQEs in Area 3A. Increases in demand 
driven by the additional flexibility of category D halibut QS could 
increase QS prices. However, changes in halibut QS price as a result of 
this action are expected to be limited for the following reasons. 
First, the flexibility to fish up afforded by this action is currently 
limited to one CQE in Area 3A that holds approximately 6,000 pounds of 
category D halibut IFQ. Second, increased flexibility for a narrow 
group of users for a limited amount of time is not likely to 
significantly increase halibut QS demand. Third, the market power of 
CQEs to purchase QS is already constrained due to the lack of 
availability of category D halibut QS and CQE funding barriers 
(described in Section 2.9.2 of the RIR), as well as the regulatory caps 
previously described. Non-CQE participants would continue to have 
access to roughly 90 percent of the category D halibut QS in Area 3A 
without potential competition from CQEs. While upward pressure on the 
value of halibut QS (such as being able to fish up) could cumulatively 
impact transfer prices, the impact of this action is expected to be 
minimal, given the present constraints on CQEs' access to investment 
capital and historical investment patterns, as well as the broad range 
of other factors that influence halibut QS prices. Section 2.11.2 of 
the RIR provides a more complete discussion of the potential impacts to 
other IFQ Program participants.
    While evaluating a fish-up provision, the Council considered three 
alternatives, which are described in Sections 2.10 and 2.11 of the RIR. 
These included alternatives that would have limited the number of times 
the fish-up provision could be used over a period of years or would 
have extended the use of this provision to the entire fishing season. 
These alternatives were not recommended by the Council. Additional 
detail of the Council's rationale in support of this action is provided 
in Section 2.5 of the RIR prepared for this action.

Additional Changes to IFQ Program Regulations

    This action also includes a minor change to regulations 
implementing the IFQ Program to consolidate the Application for 
Temporary Military Transfer of IFQ form into the Application for 
Temporary Transfer of Halibut/Sablefish Individual Fishing Quota (IFQ) 
form. This would centralize all non-medical temporary IFQ transfers 
onto a single form. To implement this form consolidation, this action 
would eliminate regulatory reference to the previously required form 
fields of ``number of QS units'' and ``range of QS serial numbers for 
IFQ to be transferred'' because they are no longer used to process 
temporary IFQ transfers. This would simplify the temporary IFQ transfer 
process for the public and for agency administrators. There would be no 
changes to the eligibility requirements for, or agency processing of, a 
temporary military transfer of IFQ. Regulations at Sec.  679.41(m)(3) 
introductory text and (m)(3)(iii) would be modified to reference the 
``application for temporary transfer of halibut/sablefish IFQ'' and the 
corresponding contents of a complete application.

Classification

    Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this proposed rule is 
consistent with the BSAI and GOA FMPs, other provisions of the 
Magnuson-Stevens Act, the Halibut Act, and other applicable law, 
subject to further consideration after public comment.
    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the IPHC, the Pacific Fishery Management Council, the 
Council, and the Secretary of Commerce. Section 5 of the Halibut Act 
(16 U.S.C. 773c) allows the regional fishery management council having 
authority for a particular geographical area to develop regulations 
governing the allocation and catch of halibut in U.S. Convention waters 
which are in addition to, and not in conflict with, IPHC regulations. 
This proposed rule is consistent with the Council's authority to 
allocate halibut catches among fishery participants in the waters in 
and off Alaska.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule is expected to be an Executive Order 13771 
deregulatory action.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. NMFS requests comments on the decision to certify this 
proposed rule. The factual basis for this determination is as follows:
    This proposed rule would directly regulate CQEs located in Area 3A 
holding halibut QS assigned to category D in Area 3A. As of 2019, one 
CQE located in Area 3A held halibut QS assigned to category D in Area 
3A. This QS holder is non-profit entity and unlikely to be considered a 
large entity under SBA standards; however, this cannot be confirmed 
because NMFS does not have or collect economic data on permit holders 
necessary to definitively determine total annual receipts. Thus, this 
QS holder is considered a small entity, based on SBA criteria.
    Eligible CQEs in Area 3A may obtain halibut QS assigned to category 
D in Area 3A; therefore, this proposed rule directly regulates entities 
representing small, remote communities in Area 3A. There are 14 
communities in Area 3A eligible to obtain halibut QS assigned to 
category D in Area 3A through CQEs. Of these, all have populations less 
than 50,000 and are considered to be small government jurisdictions.
    This proposed action would provide increased flexibility for CQEs 
in Area 3A to harvest their category D IFQ on category C vessels from 
August 15 to the end of the IFQ season each year. Use of this provision 
is voluntary. Currently, this action would only apply to approximately 
6,000 pounds of halibut IFQ held by a single CQE in Area 3A. The 
maximum potential impact of this action is limited to the amount of 
category D IFQ that CQEs in Area 3A are allowed to hold by regulation, 
which is roughly 10 percent of the total category D QS in Area 3A. No 
agency imposed cost burdens are associated with the use of this 
voluntary provision. This proposed action, therefore, is not expected 
to have a significant economic impact on a substantial number of the 
small entities directly regulated by this proposed action. As a result, 
an initial regulatory flexibility analysis is not required, and none 
has been prepared.

Regulatory Impact Review

    An RIR was prepared to assess all costs and benefits of available 
regulatory alternatives. A copy of the RIR is available from NMFS (see 
ADDRESSES). The Council recommended this proposed action based on those 
measures that maximized net benefits to the Nation.

Collection-of-Information Requirements

    This proposed rule contains collection-of-information requirements

[[Page 20661]]

subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). NMFS has submitted these 
requirements to OMB for approval under Control Number 0648-0272. Public 
reporting burden is estimated to average per response: Two hours for 
Application for Temporary Transfer of Halibut/Sablefish Individual 
Fishing Quota (IFQ). These estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Public comment is sought regarding whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collections of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collections of information to NMFS 
(see ADDRESSES), and by email to [email protected], or fax to 
(202) 395-5806.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number. All currently approved NOAA 
collections of information may be viewed at https://www.reginfo.gov/public/do/PRASearch.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 31, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 679 as follows:

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

0
1. The authority citation for 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.  679.41, revise paragraphs (m)(3) introductory text and 
(m)(3)(iii) to read as follows:


Sec.  679.41   Transfer of quota shares and IFQ.

* * * * *
    (m) * * *
    (3) Application. A QS holder may apply for a temporary military 
transfer by submitting an application for temporary transfer of 
halibut/sablefish IFQ to the Alaska Region, NMFS. NMFS will transfer, 
upon approval of the application, the applicable IFQ from the applicant 
(transferor) to the recipient (transferee). An application for 
temporary transfer of halibut/sablefish IFQ is available at https://www.fisheries.noaa.gov/region/alaska or by calling 1-800-304-4846. A 
complete application must include all of the following:
* * * * *
    (iii) The identification characteristics of the IFQ including 
whether the transfer is for halibut or sablefish IFQ, IFQ regulatory 
area, actual number of IFQ pounds, transferor (seller) IFQ permit 
number, and fishing year.
* * * * *
0
3. In Sec.  679.42, add paragraph (a)(2)(ii)(A) and reserve paragraph 
(a)(2)(ii)(B) to read as follows:


Sec.  679.42   Limitations on use of QS and IFQ.

    (a) * * *
    (2) * * *
    (ii) * * *
    (A) Halibut IFQ derived from QS assigned to vessel category D in 
Area 3A that is held by a CQE located in Area 3A may be used to harvest 
IFQ halibut on a vessel less than or equal to 60 ft (18.3 m) LOA from 
August 15 to the end of the IFQ fishing season.
    (B) [Reserved]
* * * * *
[FR Doc. 2020-07097 Filed 4-13-20; 8:45 am]
 BILLING CODE 3510-22-P