[Federal Register Volume 86, Number 100 (Wednesday, May 26, 2021)]
[Rules and Regulations]
[Pages 28294-28297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11087]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 210520-0113]
RIN 0648-BK42


Pacific Halibut Fisheries; Catch Sharing Plan

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to remove limits on the maximum amount 
of halibut Individual Fishing Quota (IFQ) that may be harvested by a 
vessel, commonly known as vessel use caps, in IFQ regulatory areas 4A 
(Eastern Aleutian Islands), 4B (Central and Western Aleutian Islands), 
4C (Central Bering Sea), and 4D (Eastern Bering Sea) for the 2021 IFQ 
fishing year. This action is needed to provide additional flexibility 
to IFQ participants in 2021 to ensure allocations of halibut IFQ can be 
harvested by the limited number of vessels operating in these areas. 
This action is within the authority of the Secretary of Commerce to 
establish additional regulations governing the taking of halibut which 
are in addition to, and not in conflict with, those adopted by the 
International Pacific Halibut Commission (IPHC). This action is 
intended to promote the goals and objectives of the IFQ Program, the 
Northern Pacific Halibut Act of 1982 (Halibut Act), and other 
applicable laws.

DATES: Effective May 26, 2021, through December 31, 2021.

ADDRESSES: Electronic copies of the Categorical Exclusion, the 
Regulatory Impact Review (RIR) (herein referred to as the 
``Analysis''), and the Final Regulatory Flexibility Analysis (FFRA) 
prepared for this action are available from http://www.regulations.gov 
or from the NMFS Alaska Region website at https://www.fisheries.noaa.gov/region/alaska.

FOR FURTHER INFORMATION CONTACT: Abby Jahn, [email protected], 907-
586-7228.

SUPPLEMENTARY INFORMATION:

Background

    This final rule will implement regulations to temporarily remove 
vessel use caps in Areas 4A, 4B, 4C, and 4D in 2021. The existing 
vessel use caps were recommended by the Council and implemented by NMFS 
as part of the IFQ Program (58 FR 59375; November 9, 1993) as 
regulations that were in addition to, and not in conflict with, those 
adopted by the IPHC, consistent with the Halibut Act (16 U.S.C. 
773c(c)).
    The following sections describe the IFQ Program, halibut IFQ vessel 
use caps, the rationale and effects of temporarily removing vessel use 
caps in Areas 4A, 4B, 4C, and 4D, and the regulations that will be 
implemented under this final rule.

IFQ Program

    Commercial halibut and sablefish fisheries in Alaska are subject to 
regulation under the IFQ Program and the CDQ Program (50 CFR part 679). 
A key objective of the IFQ Program is to support the social and 
economic character of the fisheries and the coastal fishing communities 
where many of these fisheries are based. For more information about the 
IFQ Program, please refer to Section 2.3.1 of the Analysis. Because 
this rule is specific to the halibut IFQ fishery and not the sablefish 
component of the IFQ Program that is managed under the Magnuson Stevens 
Act's authorization, reference to the IFQ Program in this preamble is 
specific to halibut unless otherwise noted.
    Under the IFQ Program, access to the commercial halibut fisheries 
is limited to those persons holding halibut quota share (QS). Quota 
share is an exclusive, revocable privilege that allows the holder to 
harvest a specific percentage of the annual commercial catch limit in 
the halibut fishery. In addition, QS is designated for specific 
geographic areas of harvest, a specific vessel operation type (catcher 
vessel (CV) or catcher/processor (CP)), and for a specific range of 
vessel sizes that may be used to harvest the halibut (vessel category). 
Out of the four vessel categories of halibut QS, Category A shares are 
designated for CPs that process their catch at sea (e.g., freezer 
longline vessels) and do not have a vessel length designation, whereas 
Category B, C, and D shares are designated to be fished on CVs that 
meet specific length designations (Sec.  679.40(a)(5)).
    In the IFQ Program, NMFS annually issues IFQ permits to each QS 
holder. An annual IFQ permit authorizes the permit holder to harvest a 
specified

[[Page 28295]]

amount of the IFQ species in an Area from a specific operation type and 
vessel category. IFQ is expressed in pounds (lb) and is based on the 
amount of QS held in relation to the total QS pool for each Area with 
an assigned catch.
    The IFQ Program established: (1) Limits on the maximum amount of QS 
that a person could use (i.e., be used to receive annual IFQ) (Sec.  
679.42(f)); (2) limits on the number of small amounts of indivisible QS 
units, known as QS blocks, that a person can hold (Sec.  679.42(g)); 
(3) limits on the ability of IFQ assigned to one CV vessel category 
(vessel category B, C, or D IFQ) to be fished on a different (larger) 
vessel category with some limited exceptions (Sec.  679.42(a)(2)); and 
(4) limits on the maximum amount of IFQ that may be harvested by a 
vessel during an IFQ fishing year (Sec.  679.42(h)). Only qualified 
individuals and initial recipients of QS are eligible to hold CV QS and 
they are required to be on the vessel when the IFQ is being fished, 
with a few limited exceptions (Sec.  679.41(h)(2)). All of these 
limitations were established to retain the owner-operator nature of the 
CV IFQ fisheries, limit consolidation of QS, and ensure the annual IFQ 
is not harvested on a small number of larger vessels.
    On March 30, 2021, NMFS published an emergency rule to modify the 
temporary transfer provision of the IFQ Program for the commercial 
halibut and sablefish fisheries for the 2021 IFQ fishing year (86 FR 
16542, March 30, 2021). That emergency rule allows QS holders to 
transfer IFQ to otherwise eligible recipients. This transfer 
flexibility promotes the complete and efficient harvest of the IFQ 
fisheries. Furthermore, that emergency rule temporarily alleviates 
impacts of unforeseen economic and social conditions in the IFQ 
fisheries. For example, QS holders will have more flexibility to select 
vessels to harvest their IFQ which may increase the number of vessels 
available to harvest (Section 2.6 of the Analysis). That emergency rule 
does not modify other provisions of the IFQ Program, including vessel 
use caps that may constrain fishing operations.

Halibut IFQ Vessel Use Caps

    The IFQ Program established vessel use caps to limit the maximum 
amount of halibut that could be harvested on any one vessel. The limits 
are intended to help ensure that a minimum number of vessels are 
engaged in the halibut fishery and to address concerns about the socio-
economic impacts of consolidation under the IFQ Program. For additional 
detail on vessel use caps, see the preamble to the proposed rule for 
the IFQ Program (57 FR 57130; December 3, 1992).
    This final rule refers to halibut catch limits, commercial halibut 
allocations, and vessel use caps in net pounds or net metric tons. Net 
pounds and net metric tons are defined as the weight of halibut from 
which the gills, entrails, head, and ice and slime have been removed. 
This terminology used in this final rule is consistent with the IPHC, 
which recommends fishery catch limits (FCEY) and calculates halibut 
mortality in net pounds.
    Relevant to this final rule, regulations at Sec.  679.42(h)(1) 
state: ``No vessel may be used, during any fishing year, to harvest 
more IFQ halibut than one-half percent of the combined total catch 
limits of halibut for IFQ regulatory areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, 
and 4E.'' Applying this regulation to 2021 yields a vessel use cap of 
92,848 lb (42.1 mt). This vessel use cap applies to vessels harvesting 
IFQ halibut in the areas subject to this final rule: Areas 4A, 4B, 4C, 
and 4D.
    In addition, regulations at Sec.  679.42(h)(1)(ii) state that ``No 
vessel may be used, during any fishing year, to harvest more than 
50,000 lb (22.7 mt) of IFQ halibut derived from QS held by a CQE.'' 
Compared to Sec.  679.42(h)(1)'s vessel use cap, Sec.  679.42(h)(1)(ii) 
imposes an even more restrictive vessel use cap on vessels that are 
harvesting IFQ halibut derived from QS held by a community quota entity 
(CQE). A CQE is a NMFS-approved non-profit organization that represents 
small, remote, coastal communities that meet specific criteria to 
purchase and hold CV halibut QS on behalf of an eligible community. The 
CQE holds QS and leases the IFQ derived from the underlying QS to 
community residents. Relevant to this final rule, a CQE is authorized 
to hold halibut QS in Area 4B on behalf of the community of Adak, 
Alaska (79 FR 8870; February 14, 2014). Any vessel harvesting halibut 
IFQ derived from the QS held by the CQE representing the community of 
Adak is subject to this more restrictive 50,000 lb (22.7 mt) vessel use 
cap.

Rationale and Effects of Temporarily Removing Vessel Use Caps in Areas 
4A, 4B, 4C, and 4D

    On February 10, 2021, at their regularly-scheduled meeting, the 
Council addressed requests from IFQ fishery stakeholders to remove 
vessel use caps applicable to the halibut IFQ fisheries (Sections 1 and 
2.3 of the Analysis). These requests were in part based on the success 
of the 2020 final rule that removed vessel use caps in Area 4 that 
provided flexibility to the IFQ halibut fleet. In 2020, vessels 
harvested up to or over the vessel use cap in multiple Area 4 areas 
under the previous rule lifting these restrictions. Based on 
stakeholder engagement and considering a range of factors, the Council 
recommended, and now NMFS issues, this final rule. These factors 
include, but are not limited to:
     The unforeseen complications of health advisories and 
government-issued travel policies impose on fishing operations in the 
2021 fishing year, particularly in the remote BSAI halibut IFQ fishery. 
These advisories and policies may restrict the ability for vessels and 
crew to operate and fully harvest their IFQ (Sections 2.3 and 2.5 of 
the Analysis);
     The relatively large proportion of vessels participating 
in the Area 4A, 4B, 4C, and 4D halibut IFQ fishery that are operating 
near current vessel use caps, thereby limiting the amount of additional 
IFQ that could be harvested on vessels operating in those Areas 
(Section 2.3 of the Analysis);
     The minimum number of vessels required to fully harvest 
the IFQ held by the affected CQE representing the community of Adak, 
Alaska, exceeds the number of vessels owned by residents of the 
community (Sections 2.3.1.6 and 2.3.1.7 of the Analysis);
     Reduced ex-vessel prices due to poor market conditions 
that may further limit the number of vessels that can economically 
harvest their halibut IFQ in Areas 4A, 4B, 4C, and 4D (Sections 2.3.1.2 
and 2.3.1.8 of the Analysis); and
     Public health risks, combined with health measures at 
specific remote ports in Areas 4A, 4B, 4C, and/or 4D, which may further 
limit the ability of smaller vessels to operate because processing 
facilities and vessel services are not available. For example, in 2020, 
the local St. Paul fleet did not operate due to public health risks and 
adverse economic conditions (Section 2.3 of the Analysis).
The reader is referred to the Analysis, particularly Sections 2.3 and 
2.6, for additional detail on the efficacy of the 2020 final rule, the 
range of factors considered for this final rule, and the anticipated 
effects of removing the vessel use caps in Areas 4A, 4B, 4C, and 4D for 
both CQE-associated vessels and non-CQE-associated vessels.
    After considering these factors, the Council recommended 
``expedited action'' to remove vessel use caps for the halibut IFQ 
fishery in Areas 4A, 4B, 4C, and 4D. NMFS accordingly established an 
expedited 15-day comment period for the proposed rule. Due to the 
widespread industry support

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and the Council's request for expedited rulemaking and NMFS 
determination that this final rule should take effect before fishing 
vessels approach their use caps.
    The Council did not recommend, and this final rule does not 
include, measures to relieve the vessel use caps for the sablefish IFQ 
fishery, or for other halibut IFQ Areas, due to the larger number of 
vessels that are currently active in the sablefish IFQ fishery and in 
these other halibut Areas. Detailed information indicating that halibut 
harvests in these other IFQ Areas would not be constrained under the 
current vessel use caps is available in Section 2.3.1.4 of the 
Analysis.
    The Council and NMFS also considered the potential impacts on 
halibut conservation and management if vessel use caps vessels in Areas 
4A, 4B, 4C, and 4D are relieved for the 2021 IFQ fishing year. The 
final regulatory amendments in this rule will temporarily add a 
regulation that would remove vessel use caps in Areas 4A, 4B, 4C, and 
4D because the vessel use caps may restrict the harvest of halibut in 
these areas, and less restrictive management measures are needed as 
soon as practicable to ensure the more complete harvest of the halibut 
resource during the 2021 IFQ fishing year. This final rule is 
responsive to the uncommon circumstances in the fishery in 2021 and 
does not modify the vessel use cap provisions in future years, 
consistent with the Council's goals in implementing vessel use caps in 
this fishery (Section 2.3 in the Analysis). This final rule does not 
modify other elements of the IFQ Program. This final rule does not 
increase or otherwise modify the 2021 halibut catch limits adopted by 
the IPHC and implemented by NMFS (86 FR 13475, March 9, 2021). This 
final rule does not modify any other conservation measures recommended 
by the IPHC and adopted by NMFS, nor any other conservation measures 
implemented by NMFS independent of the IPHC. This final rule does not 
modify other limitations on the use of QS and IFQ described in the 
previous sections of this preamble.

Final Regulations

    After considering the best available information, the Convention, 
the status of the halibut resource, and the potential social and 
economic costs of maintaining the vessel use cap limits described in 
this preamble, this final rule adds a new, temporary provision at 50 
CFR 679.42(h)(1)(iii) to remove vessel use caps for vessels harvesting 
IFQ halibut in Areas 4A, 4B, 4C, and 4D during the 2021 IFQ fishing 
year. Because under existing regulations, vessel use caps are applied 
at the fishery level including harvest in all areas, the final 
regulations clarify that harvest of IFQ halibut in regulatory areas 4A, 
4B, 4C, and 4D is excluded from the calculation of vessel use caps in 
IFQ regulatory areas 2C, 3A, or 3B during the 2021 IFQ fishing year.

Changes From Proposed to Final Rule

    NMFS did not make changes to the regulatory text in this final rule 
from the regulatory text in the proposed rule.

Comments and Responses

    No comment letters were received during the comment period for the 
proposed rule (86 FR 19207, April 13, 2021).

Classification

    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the International Pacific Halibut Commission (IPHC), the 
Pacific Fishery Management Council, the North Pacific Fishery 
Management Council (Council), and the Secretary of Commerce. Section 5 
of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 
773c) allows the Regional Council with authority over a particular 
geographical area, to develop regulations governing the allocation and 
catch of halibut in U.S. Convention waters as long as those regulations 
do not conflict with IPHC regulations. This action is consistent with 
the Council's authority to allocate halibut catches among fishery 
participants in the waters in and off Alaska.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date. It is important that this final rule is 
implemented in a timely manner before fishing vessels approach their 
use caps. The IFQ halibut fishing season is already underway and began 
on March 7, 2021. A consequence of delayed effectiveness of this final 
rule is that a vessel's fishing activity may be limited unnecessarily 
if a vessel reaches their use cap prior to the effective date of this 
rule. Additionally, an expedited implementation provides much needed 
flexibility. Any delay in the effective date of this final rule would 
be contrary to public interest. Therefore, there is good cause to 
advance this thoroughly considered action.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    A Regulatory Impact Review was prepared to assess costs and 
benefits of available regulatory alternatives. A copy of this analysis 
is available from NMFS (see ADDRESSES). Specific aspects of the 
economic analysis are discussed below in the Final Regulatory 
Flexibility Analysis section.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a final regulatory flexibility 
analysis the agency shall publish one or more guides to assist small 
entities in complying with the rule, and shall designate such 
publications as ``small entity compliance guides''. Copies of the 
proposed rule, this final rule, and the small entity compliance guide 
are available on the Alaska Region's website at: https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/pacific-halibut-and-sablefish-individual-fishing-quota-ifq-program.

Final Regulatory Flexibility Analysis

    This Final Regulatory Flexibility Analysis (FRFA) incorporates the 
initial regulatory flexibility analysis (IRFA) and the analyses 
completed to support this action. No public comments were received for 
the proposed rule or in response to the IRFA. Section 604 of the 
Regulatory Flexibility Act (RFA) requires that when an agency 
promulgates a final rule under section 553 of Title 5 of the U.S. Code, 
after being required by that section or any other law to publish a 
general notice of proposed rulemaking, the agency shall prepare a FRFA. 
Section 604 describes the required contents of a FRFA: (1) A statement 
of the need for and objectives of the rule; (2) a statement of the 
significant issues raised by the public comments in response to the 
IRFA, a statement of the assessment of the agency of such issues, and a 
statement of any changes made to the proposed rule as a result of such 
comments; (3) the response of the agency to any comments filed by the 
Chief Counsel for Advocacy of the Small Business Administration (SBA) 
in response to the proposed rule, and a detailed statement of any 
change made to the proposed rule in the final rule as a result of the 
comments; (4) a description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available; (5) a description of the projected reporting, 
recordkeeping, and other compliance requirements of the rule, including 
an estimate of the classes of small entities that will be subject to 
the requirement and the type of professional skills necessary for 
preparation of the report or record; and (6) a description of the steps 
the agency

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has taken to minimize the significant economic impact on small entities 
consistent with the stated objectives of applicable statutes including 
a statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in this final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected.
    A description of this final rule and the need for and objectives of 
this rule are contained in the preamble to this final rule and the 
preamble to the proposed rule (citation). That description is not 
repeated here.

Public and Chief Counsel for Advocacy Comments on the IRFA

    NMFS published the proposed rule on April 13, 2021 (86 FR 19207). 
An IRFA was prepared and included in the Classification section of the 
preamble to the proposed rule. The comment period for the proposed rule 
closed on April 28, 2021. NMFS did not receive any comments. The Chief 
Counsel for Advocacy of the SBA did not file any comments on the 
proposed rule.
    NMFS did not receive any comments on the proposed rule or 
specifically on the IRFA.

Number and Description of Small Entities Regulated by This Final Rule

    This final rule directly regulates the owners and operators of 
vessels that are used to harvest halibut IFQ in IFQ Areas 4A, 4B, 4C, 
or 4D. From 2014 through 2019, (the most recent year with complete 
data) 119 unique vessels harvested halibut IFQ in IFQ Areas 4A, 4B, 4C, 
or 4D. Based on average annual gross revenue data, including 
affiliations, all but three of the vessels that landed halibut between 
2014 and 2019 are considered small entities based on the $11 million 
threshold. Additional detail is included in Sections 2.8 in the 
Analysis prepared for this final rule (see ADDRESSES).

Impacts of this Action on Small Entities

    This action would relieve a restriction which could facilitate 
harvesters to fully utilize IFQ allocations in Area 4 in the 2021 
fishing season. Although it is difficult to predict the direct impact 
of the regulatory changes implemented for the 2020 IFQ seasons, harvest 
rates achieved in 2020 relative to all other years (2006-2020) likely 
indicates the regulatory flexibilities implemented in 2020 (both the 
temporary transfer provisions as well the vessel use cap exemption) had 
some positive impact on the harvest rates, as described in Section 2.6 
of the Analysis prepared for this action (see ADDRESSES).

Description of Significant Alternatives That Minimize Adverse Impacts 
on Small Entities

    The RFA requires identification of any significant alternatives to 
the final rule that accomplish the stated objectives of the final 
action, consistent with applicable statutes, and that would minimize 
any significant economic impact of the final rule on small entities. 
The Council requested an action alternative and in considering the 
Council's request NMFS analyzed the impacts of the action alternative 
compared to the status quo.
    The status quo alternative would retain the existing vessel use cap 
restrictions as defined under 50 CFR 679.42(h). Considering the 
existing social and economic conditions in the IFQ fishery since 2020, 
the supply of vessels available to prosecute Area 4 halibut IFQ 
fisheries could be limited such that a portion of the 2021 annual 
halibut allocation could be left unharvested if available vessels must 
comply with existing halibut IFQ vessel use limitations.
    The action alternative would remove limits on the maximum amount of 
halibut IFQ that may be harvested by a vessel in IFQ regulatory areas 
4A, 4B, 4C, and 4D. The action alternative and the regulations for this 
action would provide additional flexibility to IFQ participants in 2021 
to ensure allocations of halibut IFQ can be harvested by the limited 
number of vessels operating in these areas.

Duplicate, Overlapping, or Conflicting Federal Rules

    NMFS has not identified any duplication, overlap, or conflict 
between this final rule and existing Federal rules.

Recordkeeping, Reporting, and Other Compliance Requirements

    This action does not contain additional recordkeeping, reporting, 
or other compliance requirements.

Collection-of-Information Requirements

    This final rule does not contain a change to a collection of 
information requirement for purposes of the Paperwork Reduction Act of 
1995. The existing collection of information requirements would 
continue to apply under the following OMB Control Number(s): 0648-0272, 
Alaska Pacific Halibut & Sablefish Fisheries: Individual Fishing Quota 
(IFQ).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: May 20, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
679 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.  679.42, add paragraph (h)(1)(iii) to read as follows:


Sec.  679.42  Limitations on use of QS and IFQ.

* * * * *
    (h) * * *
    (1) * * *
    (iii) Notwithstanding the vessel use caps specified in paragraphs 
(h)(1) introductory text and (h)(1)(ii) of this section, vessel use 
caps do not apply to vessels harvesting IFQ halibut in IFQ regulatory 
areas 4A, 4B, 4C, and 4D during the 2021 IFQ fishing year. Harvest of 
IFQ halibut in regulatory areas 4A, 4B, 4C, and 4D is excluded from the 
calculation of vessel use caps for IFQ regulatory areas 2C, 3A, or 3B 
during the 2021 IFQ fishing year.
* * * * *
[FR Doc. 2021-11087 Filed 5-25-21; 8:45 am]
BILLING CODE 3510-22-P