[Federal Register Volume 87, Number 108 (Monday, June 6, 2022)]
[Rules and Regulations]
[Pages 34215-34219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12079]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 220413-0094]
RIN 0648-BL28


Pacific Halibut Fisheries; Catch Sharing Plan

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

ACTION: Temporary final rule.

-----------------------------------------------------------------------

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). This action is 
needed to provide additional flexibility to IFQ participants in 2022 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 that 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 June 6, 2022, through December 31, 2022.

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

FOR FURTHER INFORMATION CONTACT: Abby Jahn, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements regulations for the 2022 IFQ fishing 
year to temporarily remove vessel use caps in Areas 4A, 4B, 4C, and 4D 
and exclude harvest of IFQ halibut in 2022 from the calculation of 
vessel use caps in IFQ regulatory Areas 2C, 3A, or 3B. The existing 
vessel use caps were recommended by the North Pacific Fishery 
Management Council (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 for and effects from temporarily removing vessel use caps in 
Areas 4A, 4B, 4C, and 4D; and the regulations 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 2.4 of the

[[Page 34216]]

Analysis. Because this rule is specific to the halibut IFQ fishery, 
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 quota share (QS). Halibut QS is 
designated for a specific geographic area of harvest, a specific vessel 
operation type (catcher vessel (CV) or catcher/processor), 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 catcher/processors that process 
their catch at sea (e.g., freezer longline vessels) and do not have a 
vessel length designation, whereas category B, category C, and category 
D shares are designated to be fished on CVs that meet specific length 
designations (Sec.  679.40(a)(5)).
    NMFS annually issues IFQ permits to each QS holder. IFQ permits 
authorize permit holders to harvest a specified amount of a particular 
IFQ species in an area from a specific operation type and vessel 
category, consistent with the QS they hold. IFQ is expressed in pounds 
(lb) and is based on the amount of QS held by the permit holder in 
relation to the total QS pool for each area with an assigned catch.
    The IFQ Program also 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 categories 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 halibut 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 must be on board 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 halibut IFQ fisheries, limit 
consolidation of QS, and ensure the annual IFQ is not harvested on a 
small number of larger vessels.

Halibut IFQ Vessel Use Caps

    The Council established vessel use caps under the IFQ Program 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 IFQ 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, ice, and slime have been removed. This 
terminology used in this final rule is consistent with the IPHC, which 
establishes catch limits and calculates mortality in net pounds.
    For IFQ regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, 
vessels cannot be used to harvest more halibut IFQ than one-half 
percent of the combined total catch limits of halibut (Sec.  
679.42(h)(1)). Applying this regulation to 2022 yields a vessel use cap 
of 101,490 lb (46.0 mt). This vessel use cap applies to vessels 
harvesting IFQ halibut in the regulatory areas subject to this final 
rule: Areas 4A, 4B, 4C, and 4D.
    A Community Quota Entity (CQE) is authorized to hold halibut QS in 
Area 4B on behalf of the community of Adak, Alaska (79 FR 8870; 
February 14, 2014). 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. Any vessel harvesting halibut IFQ 
that is derived from the QS and held by the CQE representing the 
community of Adak is subject to the vessel use cap regulations at Sec.  
679.42(h)(1)(ii), which limit a vessel to harvest no more than 50,000 
lb (22.7 mt), in addition to those set forth at Sec.  679.42(h)(1) 
introductory text and 679.42(h)(i).

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

    On February 10, 2022, at its regularly-scheduled meeting, the 
Council addressed requests from IFQ fishery stakeholders to remove 
vessel use caps applicable to the halibut IFQ fisheries in Areas 4A, 
4B, 4C, and 4D (Sections 1 and 2.3 of the Analysis). The Council 
requested this rule because of the ongoing socio-economic impacts of 
the COVID-19 pandemic as identified by the public, including coastal 
communities and fishery participants in Area 4. NMFS proposes this rule 
to provide additional flexibility to vessels operating in Area 4 during 
the 2022 fishing season. This action is expected to facilitate the 
harvest of halibut allocated under the IFQ program in Area 4 and 
provide additional harvest flexibility to vessels operating in Area 4. 
This action is needed because of the relatively large proportion of 
vessels participating in Areas 4A, 4B, 4C, and 4D halibut IFQ fisheries 
that are operating near the current vessel use cap, thereby limiting 
the amount of additional IFQ that could be harvested on vessels 
operating in those areas (Section 2.3 of the Analysis). Additionally, 
this action is expected to provide flexibility to the CQE representing 
the community of Adak, Alaska, because the minimum number of vessels 
needed under current use caps exceeds the number of vessels owned by 
residents of the community (Section 2.5.2 of the Analysis).
    The reader is referred to the Analysis, particularly Sections 2.3, 
2.6, and 2.7, for additional detail on the efficacy of 2020 and 2021 
rulemakings that temporarily removed vessel use caps in Area 4, a 
broader discussion of 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 and non-CQE-associated vessels.
    The Council recommended ``expedited action'' to remove vessel use 
caps for the halibut IFQ fishery in Areas 4A, 4B, 4C, and 4D to be made 
effective as soon as possible during the 2022 fishing year, which ends 
on December 7, 2022. NMFS accordingly established an expedited 15-day 
comment period for the proposed rule.
    The Council did not recommend, and this final rule does not 
include, measures to remove 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 
these other halibut areas. Area 4E was not included because it is 
entirely allocated to harvest under the CDQ Program; therefore, vessel 
use caps do not apply to Area 4E. Additionally, halibut harvests in 
Areas 2C, 3A, and 3B are unlikely to be constrained under the current 
vessel use caps (Section 2.5.2.1 of the Analysis).
    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 2022 IFQ fishing year. The regulatory amendments 
in this rule temporarily add a regulation to remove vessel use caps in 
Areas 4A, 4B, 4C, and 4D. This final rule provides additional

[[Page 34217]]

flexibility to facilitate harvest of the halibut resource and is 
responsive to the Council request to implement expedited rulemaking for 
the 2022 IFQ fishing year due to the ongoing economic, social, and 
public health impacts of the COVID-19 pandemic. This final rule 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 2022 halibut catch limits adopted by the IPHC and 
implemented by NMFS (87 FR 12604, March 7, 2022). 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 
the 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 2022 IFQ fishing year. 
Because vessel use caps are applied under existing regulations at the 
fishery level, including harvest in all areas, this final rule 
clarifies 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 2022 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

    NMFS received three comment letters during the public comment 
period for the proposed rule (87 FR 23155, April 19, 2022). Below, NMFS 
summarizes and responds to three unique comments. Of the three comment 
letters received, one letter was from a non-profit corporation, one 
letter was from an individual, and one letter was from a fishery 
participant.
    Comment 1: One commenter generally supported the action because it 
is beneficial to fishermen and it is aligned with the original purpose 
of the IFQ program, which promotes management objectives of the Halibut 
Act. Additionally, the commenter opined that this action would have a 
positive impact on fishery participant's ability to fully harvest their 
allocations.
    Response: NMFS acknowledges the commenter's support for this 
action.
    Comment 2: One commenter supported the action because it provides 
flexibility and benefits communities in Area 4, which continue to face 
economic, operational, and public health challenges due to the fishery-
level impacts of the COVID-19 pandemic.
    Response: NMFS acknowledges the commenter's support for this 
action.
    Comment 3: One commenter opposed the action because of concerns 
with consolidation, who benefits from actions like this one, and 
barriers to entry into the IFQ Program. The commenter adds that, in 
their view, this action does not align with the original intent of the 
IFQ program to protect fishery participants from consolidation. They 
opine that NMFS should not allow a small number of QS holders to 
continue to benefit from the IFQ program. The commenter believes that 
if QS holders do not want to fish, then they should sell their quota 
shares. In their view, by removing vessel use caps, this action 
promotes consolidation, which increases the price of the QS and 
barriers to entry into the IFQ Program.
    Response: The Council recommended implementing this action for the 
2022 fishing year because of the ongoing socio-economic impacts of the 
COVID-19 pandemic identified by the public, including coastal 
communities and fishery participants in Area 4. NMFS carefully assessed 
the potential social and economic effects of this action. This final 
rule is temporary and therefore does not modify the vessel use cap 
provisions in future years. The Council and NMFS continue to strongly 
support the vessel use caps provision of the IFQ Program. These vessel 
use cap requirements are an essential component of the IFQ Program 
because they ensure harvesting opportunity is not consolidated into too 
few vessels (Section 2.3 of the Analysis).
    When the Council developed the IFQ Program, one primary objective 
was to protect entry-level and part-time participants that may have 
otherwise been eliminated because of predicted consolidation trends. 
However, since implementation, the value of QS has increased and the 
number of vessels harvesting IFQ has decreased, resulting in some 
consolidation. Notably, however, this action is limited to modifying 
vessel use caps in 2022 only, as detailed in the preamble to this final 
rule, and does not modify any other provisions of the IFQ Program that 
are designed to prevent excessive consolidation and to facilitate 
entry. Those unmodified provisions include the QS use caps (Sec.  
679.42 (f)) and the fish down provision (Amendment 42 to the BSAI GOA 
FMP).

Classification

    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the IPHC, the 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 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 final action is consistent 
with the Council's authority to allocate halibut catch among fishery 
participants in Convention 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 reach their use 
caps. The IFQ halibut fishing season is already underway and began on 
March 6, 2022. A consequence of delayed effectiveness of this final 
rule would be 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 without delay.
    This final 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 (FRFA) 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

[[Page 34218]]

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 FRFA incorporates the Initial Regulatory Flexibility Analysis 
(IRFA) and the analyses completed to support this action. 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 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 (87 FR 23155, April 19, 2022). That 
description is not repeated here.

Public and Chief Counsel for Advocacy Comments on the IRFA

    NMFS published the proposed rule on April 19, 2022 (87 FR 23155). 
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 May 4, 2022. The Chief Counsel for Advocacy of the SBA did 
not file any comments on the proposed rule. NMFS received no comments 
specifically on the IRFA; therefore, no changes were made to this rule 
as a result of comments on the IRFA. However, one comment was received 
on the entities affected by this rule. For a summary of this comment 
and the agency's response, refer to the section above titled ``Comments 
and Responses''.

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. As of 2020 (the most recent year of gross revenue data), there 
were 99 unique vessels that harvested halibut IFQ in IFQ Areas 4A, 4B, 
4C, or 4D. Based on average annual gross revenue data, including 
affiliations, all but one of these vessels that landed halibut in 2020 
are considered small entities based on the applicable $11 million 
threshold. Additional details are included in Sections 2.9 in the 
Analysis prepared for this rule (see ADDRESSES).

Recordkeeping, Reporting, and Other Compliance Requirements

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

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 one action alternative. No other alternatives 
were considered. Additionally, NMFS did not identify other action 
alternatives that would provide the same level of flexibility that was 
requested by the Council within the requested expedited timeframe. 
Further, this action is the same as the action implemented in 2021 and 
similar to the action implemented in 2020. In consideration of 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). It is possible that 
existing vessel use caps regulations under the status quo may increase 
the likelihood that some of the annual halibut allocation is left 
unharvested in Area 4.
    This final rule implements the action alternative to 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. This action provides 
additional flexibility to IFQ participants in 2022 to ensure 
allocations of halibut IFQ can be harvested by the limited number of 
vessels operating in these Areas. However, this may result in a 
reduction in crew jobs and opportunities for new entrants in Areas 4A, 
4B, 4C, and 4D. Additionally, if there are fewer participants in the 
fishery, it is possible that landings could consolidate to fewer 
processors and communities depending on landing location and historic 
harvester-processor relationships.

Collection-of-Information Requirements

    This rule contains no information collection requirements under the 
Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: June 1, 2022.
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 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

[[Page 34219]]

regulatory Areas 4A, 4B, 4C, and 4D during the 2022 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 2022 IFQ fishing year.
* * * * *
[FR Doc. 2022-12079 Filed 6-3-22; 8:45 am]
BILLING CODE 3510-22-P