        DEPARTMENT OF TRANSPORTATION
        Surface Transportation Board
        49 CFR Part 1244
        [Docket No. EP 646 (Sub-No. 3)]
        Waybill Data Released in Three-Benchmark Rail Rate Proceedings

          AGENCY:
          Surface Transportation Board, DOT.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Board is republishing its April 2, 2010 proposal to amend its rules with respect to the Three-Benchmark methodology used to adjudicate simplified rate case complaints, to include an expanded discussion of its rationale and regulatory objectives. This proposal provides for release to the parties to a Three-Benchmark proceeding of the unmasked Waybill Sample data of the defendant carrier for the 4 years that correspond with the most recently published Revenue Shortfall Allocation Method (RSAM) figures. The parties would then use the released Waybill Sample data to form their traffic comparison groups. The Board seeks comments concerning the amount of data that would be available under the proposed rule, and the proposal that the parties would be permitted to draw from all 4 years of waybill data to form their comparison groups.

          DATES:
          Comments on this proposal are due by November 26, 2010; replies are due by December 27, 2010.

          ADDRESSES:

          Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 646 (Sub-No. 3), 395 E Street, SW., Washington, DC 20423-0001.
          Copies of written comments will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

          FOR FURTHER INFORMATION CONTACT:
          Valerie Quinn at (202) 245-0382. (Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.)

        SUPPLEMENTARY INFORMATION:
        In Simplified Standards for Rail Rate Cases (Simplified Standards), EP 646 (Sub-No. 1) (STB served Sept. 5, 2007), aff'd sub nom.
          CSX Transp., Inc. v. STB (CSX Transp. I), 568 F.3d 236 (DC Cir. 2009), and vacated in part on reh'g,
          CSX Transp., Inc. v. STB (CSX Transp. II), 584 F.3d 1076 (DC Cir. 2009), the Board modified its simplified rail rate guidelines, creating a simplified stand-alone cost approach for medium-size rail rate disputes and revising its Three-Benchmark approach for smaller rail rate disputes.

        The Three-Benchmark method compares a challenged rate of the “issue traffic” to the rates of a comparison group of traffic drawn from the Waybill Sample data of the defendant carrier. The Waybill Sample is a statistical sampling of railroad waybills of the carrier's shipments that is collected and maintained for use by the Board. See 49 CFR 1244.1(c). The proposed rule in Simplified Standards would have required parties to draw their traffic comparison groups from the most recent year of Waybill Sample data of the carrier's other shipments. Simplified Standards for Rail Rate Cases, EP 646 (Sub-No. 1), slip op. at 32-33 (STB served July 28, 2006). The final rule, however, allowed parties to form comparison groups using Waybill Sample data from the 4 most recent years. Simplified Standards, slip op. at 80.
        Several railroads 1

           and the Association of American Railroads challenged the final rule in court on the basis that, under 5 U.S.C. 553(b)(3), the Board had not provided adequate notice and opportunity to comment on the change from 1 to 4 years of data from which the parties could draw to form their proposed comparison groups. CSX Transp. I, 568 F.3d at 246. Initially, the court determined that it would not address the merits of petitioners' argument, because the issue had not been presented to the Board prior to seeking judicial review and, therefore, had been waived. Id. at 246-47.

            1 Canadian Pacific Railway Co., Soo Line Railroad Company, Delaware & Hudson Railway Company, CSX Transportation, Inc., Norfolk Southern Railway Company, and Union Pacific Railroad Company.

        On rehearing, however, the court reversed its waiver determination and considered the merits of petitioners' argument. The court concluded that the Board had failed to provide adequate notice of the final rule regarding the available range of Waybill Sample data. Accordingly, the court vacated that portion of Simplified Standards. CSX Transp. II, 584 F.3d at 1078. As a result, there is currently a gap in the Board's rules; i.e., there is no defined period for which unmasked Waybill Sample data is to be released in a Three-Benchmark proceeding.
        On April 2, 2010, the Board, through a notice of proposed rulemaking, proposed to provide for release to the parties in Three-Benchmark proceedings of the unmasked Waybill Sample data of the defendant carrier for the 4 years that correspond with the most recently published RSAM figures. The parties would then draw their comparison groups in any combination they choose from the released Waybill Sample data. The Board solicited comments on this proposal.
        The Board received comments from shippers, railroads, the U.S. Department of Agriculture, and other interested organizations. Some commenters expressed concern that the Board did not provide the rationales and regulatory objectives behind the proposed rules. In response, this decision will provide the Board's rationales and regulatory objectives. This notice of proposed rulemaking proposes rules that are identical to those proposed on April 2, 2010.

        The use of multiple years of data for the Waybill Sample would be consistent with the Board's current practice in other contexts in Three-Benchmark cases. The Board already uses a 4-year averaging period to determine the other two benchmark components used in a Three-Benchmark case: The RSAM and R/VC>180 benchmarks. See Rate Guidelines—Non-Coal Proceedings, (Rate Guidelines) 1 S.T.B. 1004, 1032-33 (1996). The reason for using this 4-year averaging period is to “smooth out annual variations and minimize the impact of any year that may have been aberrational for that carrier.” Rate Guidelines, 1032-33.
        A similar rationale applies to the rule proposed here. The availability of 4 years of Waybill Sample data would allow parties more flexibility to choose a comparison group that is a reasonable reflection of the traffic at issue and to avoid having to use data that may be aberrational. Giving the option to choose movements over a multi-year period would provide the parties with more data from which to choose, which should assist the parties in selecting a comparison group that more closely resembles the issue traffic. At the same time, limiting the pool of data to the 4 years that correspond with the most recently published RSAM figures would prevent the use of data that are too old to be reliable. By contrast, a shorter period, such as the 1-year time span envisioned earlier, could cause the comparison groups to be too small.
        If the proposed rules are adopted, parties would not have incentive to specifically choose only the most favorable data from the 4-year data set because the Board will choose the comparison group that more closely resembles the traffic at issue. Thus, if a party selects a group that heavily favors its position at the expense of a reasonable comparison, then it is less likely that the Board would choose that comparison group.
        The Board will now provide an opportunity for additional input regarding the rules proposed here. While we will consider the comments and replies previously submitted in this proceeding, interested parties (whether or not they have already participated in this proceeding) may file additional comments and replies.

        The Board has authority to promulgate rules to meet statutory objectives. See 49 U.S.C. 721(a). The Board is issuing this notice of proposed rulemaking pursuant to the mandate to “establish a simplified and expedited method for determining the reasonableness of challenged rail rates in those cases in which a full stand-alone cost presentation is too costly, given the value of the case.” 49 U.S.C. 10701(d)(3). This proposed rule, if implemented, will be part of the framework for the simplified and expedited method of challenging rail rates.

        Under the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, a notice of proposed rulemaking must either include an initial regulatory flexibility analysis, 5 U.S.C. 603(a), or a certification that the proposed rule will not have a “significant economic impact on a substantial number of small entities,” 5 U.S.C. 605(b). The proposed rule fills in a gap in the Three-Benchmark rate complaint framework by specifying the number of years of Waybill Sample data that will be made available to the parties in those cases. By providing clarity on that issue, the proposed rule would have a positive economic effect on small entities because it would allow Three-Benchmark rate cases to proceed more efficiently. Moreover, while the proposed rule delineates the range of data that would be made available, it does not require the parties to use any particular quantum of data. Accordingly, pursuant to 5 U.S.C. 605(b), the Board certifies that the regulations proposed herein would not have a significant impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.
        This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

          Authority:
           49 U.S.C. 721(a); 49 U.S.C. 10701(d)(3).

          Decided: October 21, 2010.

          By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham.
          Jeffrey Herzig,
          Clearance Clerk.

      [FR Doc. 2010-27167 Filed 10-26-10; 8:45 am]
      BILLING CODE 4915-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 300
        [Docket No. 201223-0353]
        RIN 0648-BJ26
        International Fisheries; Pacific Tuna Fisheries; 2021 Commercial Fishing Restrictions for Pacific Bluefin Tuna in the Eastern Pacific Ocean

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS is proposing regulations under the Tuna Conventions Act of 1950, as amended (TCA), to implement Inter-American Tropical Tuna Commission (IATTC) Resolution C-20-02 (“Measures for the Conservation and Management of Bluefin Tuna in the Eastern Pacific Ocean, 2021”). This proposed rule would implement annual limits on commercial catch of Pacific bluefin tuna (Thunnus orientalis) in the eastern Pacific Ocean (EPO) for 2021. This action is necessary to conserve Pacific bluefin tuna and for the United States to satisfy its obligations as a member of the IATTC.

          DATES:
          Comments on the proposed rule and supporting documents must be submitted in writing by February 4, 2021.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2020-0163, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0163, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Celia Barroso, NMFS West Coast Region Long Beach Office, 501 W Ocean Blvd., Suite 4200, Long Beach, CA 90802. Include the identifier “NOAA-NMFS-2020-0163” in the comments.

            Instructions: Comments must be submitted by one of the above methods to ensure they are received, documented, and considered by NMFS. 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. 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, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS West Coast Region Long Beach Office and to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.

          Copies of the draft Regulatory Impact Review (RIR) and other supporting documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2020-0163 or contact the Highly Migratory Species Branch Chief, Lyle Enriquez, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802, or WCR.HMS@noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Celia Barroso, NMFS, 562-432-1850, Celia.Barroso@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Background on the IATTC

        The United States is a member of the IATTC, which was established in 1949 and operates under the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention). See: https://www.iattc.org/PDFFiles/IATTC-Instruments/_English/IATTC_Antigua_Convention%20Jun%202003.pdf.

        The IATTC consists of 21 member nations and 5 cooperating non-member nations. The IATTC facilitates scientific research into, as well as the conservation and management of, tuna and tuna-like species in the IATTC Convention Area (Convention Area). The Convention Area is defined as waters of the EPO within the area bounded by the west coast of the Americas and by 50° N latitude, 150° W longitude, and 50° S latitude. The IATTC maintains a scientific research and fishery monitoring program, and regularly assesses the status of tuna, shark, and billfish stocks in the EPO to determine appropriate catch limits and other measures to promote sustainable fisheries and prevent overexploitation.
        International Obligations of the United States Under the Convention

        As a Party to the Antigua Convention and a member of the IATTC, the United States is legally bound to implement decisions of the IATTC. The Tuna Conventions Act (16 U.S.C. 951 et seq.) directs the Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the U.S. Coast Guard, to promulgate such regulations as may be necessary to carry out the United States' obligations under the Antigua Convention, including recommendations and decisions adopted by the IATTC. The authority of the Secretary of Commerce to promulgate such regulations has been delegated to NMFS.
        Pacific Bluefin Tuna Stock Status

        In 2011, NMFS determined overfishing was occurring on Pacific bluefin tuna (76 FR 28422, May 17, 2011), which is considered a single Pacific-wide stock. Based on the results of a 2012 stock assessment conducted by the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC), NMFS determined that Pacific bluefin tuna was not only subject to overfishing, but was also overfished (78 FR 41033, July 9, 2013). Subsequently, based on the results of the 2014, 2016, and 2018 ISC stock assessments, NMFS determined that Pacific bluefin tuna continued to be overfished and subject to overfishing (80 FR 12621, March 10, 2015; 82 FR 18434, April 19, 2017; 84 FR 19905, May 7, 2019). The ISC completed a stock assessment in July 2020, which showed that the stock continues to be overfished and subject to overfishing when compared to commonly used reference points.
        Pacific Bluefin Tuna Resolutions
        Recognizing the need to reduce fishing mortality of Pacific bluefin tuna, the IATTC has adopted catch limits in the Convention Area since 2012 (see the final rules implementing Resolution C-14-06, Resolution C-16-08, and Resolution C-18-01 and Resolution C-18-02 for more information on previous management measures (80 FR 38986, July 8, 2015; 82 FR 18704, April 21, 2017; 84 FR 18409, May 1, 2019)). At its 95th Meeting in December 2020, the IATTC adopted Resolution C-20-02. Resolution C-20-02 is consistent with the recommendations of the IATTC Scientific Advisory Committee that the Commission “[e]xtend the provisions of Resolution C-18-01 through 2021”; and, although applicable for 2021 only, is consistent with the IATTC staff recommendation that the Commission “[e]xtend the provisions of Resolution C-18-01 through 2021-2022.” Resolution C-20-02 establishes catch limits and reporting requirements for 2021. This resolution was approved by the Secretary of State, prompting implementation by NMFS in this rulemaking.
        Since 2016, the IATTC and the Northern Committee (NC) to the Western and Central Pacific Fisheries Commission (WCPFC) have held annual joint working group meetings intended to develop a Pacific-wide approach to management of Pacific bluefin tuna. Conservation measures adopted by the IATTC and WCPFC have considered the recommendations of the Joint IATTC-WCPFC NC Working Group (Joint WG). Joint WG recommendations have included rebuilding targets and criteria that must be met before considering increased catch limits. At its 5th meeting held October 6-7 (Japan Standard Time), 2020, the Joint WG recommended the IATTC and WCPFC continue measures in effect for 2020 into 2021. Subsequently, the IATTC considered the Joint WG recommendation when it adopted Resolution C-20-02.
        Similar to previous IATTC resolutions on Pacific bluefin tuna, the main objective of Resolution C-20-02 is to reduce overfishing and to rebuild the stock by setting limits on commercial catch in the IATTC Convention Area during 2021. Resolution C-20-02 establishes an annual limit of 425 metric tons (mt) for U.S. commercial vessels in 2021.
        Pacific Fishery Management Council (PFMC) Recommendations for the Implementation of C-20-02

        In 2017, NMFS implemented the catch limits in Resolution C-16-08 with a 25-mt trip limit until catch was within 50 mt of the annual limit (i.e., the annual limit was 425 mt in 2017) and a 2-mt trip limit when catch was within 50 mt of the annual limit (82 FR 18704, April 21, 2017). However, the catch rate was more rapid than anticipated, which caused the annual limit to be exceeded before the fishery was closed on August 28, 2017 (82 FR 40720). This series of events prompted NMFS and the PFMC to reconsider management measures for 2018, as well as 2019-2020, to avoid exceeding catch limits. In 2018, NMFS implemented a 1-mt Pacific bluefin tuna trip limit applicable to commercial U.S. vessels, except large-mesh drift gillnet vessels, which were subject to a 2-mt trip limit (83 FR 13203, March 28, 2018). For 2019-2020, NMFS implemented C-18-01 with a 15-mt trip limit until catch was within 50 mt of the annual limit (i.e., the annual limit was 425 mt in 2019) and a 2-mt trip limit when catch was within 50 mt of the annual limit (84 FR 18409, May 1, 2019). NMFS also included three additional elements when implementing C-18-01: (1) Required purse seine vessels to notify NMFS 24 hours in advance of departing on a trip in order to retain or land more than 2 mt of Pacific bluefin tuna (pre-trip notification); (2) required that Pacific bluefin tuna landings in California be reported within 24 hours of landing using the California electronic landing receipt (e-ticket) reporting system; and (3) required that NMFS take inseason action by posting on the NMFS website and U.S. Coast Guard Notice to Mariners radio broadcast, followed by a Federal Register notice as soon as practicable.
        In 2019 and 2020, NMFS hosted Pacific bluefin tuna stakeholder meetings. Attendees expressed concerns about the pre-trip notification and trip limit implemented in 2019-2020. Attendees considered the pre-trip notification burdensome. Attendees were also concerned that NMFS may take inseason action based an assumption that 15 mt of Pacific bluefin tuna would be caught on each trip noticed, which led to an overestimation of catch in 2019 resulting in a premature reduction in the trip limit to 2 mt. The pre-trip notification did not appear to accurately predict catch. Purse seine stakeholders have also noted that the 15-mt trip limit is too low because Pacific bluefin tuna schools are larger than 15 mt.
        At its November 2020 meeting, the PFMC made recommendations for implementing catch limits established in Resolution C-20-02 for 2021. Because the Joint WG recommendations were expected to be adopted by the IATTC and WCPFC at their upcoming meetings, NMFS was able to anticipate the upcoming U.S. commercial catch limit. NMFS received Council input on domestic implementation at its November meeting before the IATTC met and adopted Resolution C-20-02. At the November 2020 PFMC meeting, the Highly Migratory Species Advisory Subpanel (HMSAS) and Management Team (HMSMT) raised concerns regarding the pre-trip notification that align with those raised during stakeholder meetings described above. The Council considered the HMSAS and HMSMT statements when it recommended eliminating the current pre-trip notification requirement while maintaining the e-ticket requirement and inseason action procedures. In addition, the Council recommended the following applicable to trip limits in 2021:
        • Set an initial trip limit of 20 mt.
        • January-March: If cumulative catch reaches 250 mt, then the trip limit is reduced to 15 mt; and if cumulative catch reaches 325 mt, then the trip limit is reduced to 2 mt for the remainder of the year or until the annual catch limit is met.
        • April-June: If cumulative catch reaches 275 mt, then the trip limit is reduced to 15 mt; and if cumulative catches reach 350 mt, then the trip limit is reduced to 2 mt for the remainder of the year or until the annual catch limit is met.
        • July-September: If cumulative catch reaches 300 mt, then the trip limit is reduced to 15 mt; and if cumulative catch reaches 375 mt, then the trip limit is reduced 2 mt for the remainder of the year or until the annual catch limit is met.
        • October-December: If cumulative catch reaches 325 mt, then the trip limit is reduced to 15 mt; and if cumulative catch reaches 375 mt, then the trip limit is reduced to 2 mt for the remainder of the year or until the annual catch limit is met.
        Pacific Bluefin Tuna Catch History

        While Pacific bluefin tuna catch by U.S. commercial vessels fishing in the Convention Area exceeded 1,000 mt per year in the early 1990s, annual catches have remained below 500 mt for more than a decade. Since 2010, catches have ranged from 1 to 487 mt with an annual average of 186 mt. Average annual Pacific bluefin tuna landings by U.S. commercial vessels fishing in the Convention Area from 2011 to 2015 represent only 1 percent of the average annual landings of Pacific bluefin tuna for all fleets fishing in the Convention Area. For information on Pacific bluefin tuna harvests in the Convention Area through 2019, see http://isc.fra.go.jp/fisheries_statistics/index.html; for preliminary information for 2020, see http://www.iattc.org/CatchReportsDataENG.htm; additionally, preliminary data in the Pacific Fisheries Information Network estimate 2020 catch to be approximately 210 mt.
        Proposed Regulations for Pacific Bluefin Tuna for 2021
        This proposed rule would establish catch and trip limits for U.S. commercial vessels that catch Pacific bluefin tuna in the Convention Area, and landing receipt submission deadlines for 2021. In 2021, the catch limit for the entire U.S. fleet would be 425 mt.
        In 2021, NMFS would impose an initial trip limit of 20 mt. If cumulative catch reaches certain amounts depending on the quarter of the year, NMFS would impose an intermediate 15 mt trip limit, and a low 2 mt trip limit through the end of the year, or until the annual catch limit is met and the fishery is closed, as follows:
        • January-March: If cumulative catch reaches 250 mt, then the trip limit is reduced to 15 mt; and if cumulative catch reaches 325 mt, then the trip limit is reduced to 2 mt for the remainder of the year or until the annual catch limit is met and the fishery is closed.
        • April-June: If cumulative catch reaches 275 mt, then the trip limit is reduced to 15 mt; and if cumulative catch reaches 350 mt, then the trip limit is reduced to 2 mt for the remainder of the year or until the annual catch limit is met and the fishery is closed.
        • July-September: If cumulative catch reaches 300 mt, then the trip limit is reduced to 15 mt; and if cumulative catch reaches 375 mt, then the trip limit is reduced 2 mt for the remainder of the year or until the annual catch limit is met and the fishery is closed.
        • October-December: If cumulative catch reaches 325 mt, then the trip limit is reduced to 15 mt; and if cumulative catch reaches 375 mt, then the trip limit is reduced to 2 mt for the remainder of the year or until the annual catch limit is met and the fishery is closed.

        Under California law and regulations, electronic landing receipts (i.e., e-tickets) are required for landings in California and are required to be submitted to the California Department of Fish and Wildlife within three business days (see California Fish and Game Code section 8046 and 14 California Code of Regulations section 197). Under this proposed rule, e-tickets would be required to be submitted within 24 hours if any Pacific bluefin tuna is included in a landing into California. This accelerated submission deadline is required in order to better monitor catch limits.

        NMFS would estimate when the overall catch is expected to reach the thresholds to reduce the trip limit (i.e., from 20 mt to 15 mt, or from 15 mt to 2 mt) or the annual limit based on available fishery information, such as landing receipts. NMFS would then make decisions on inseason actions based on those estimates. NMFS would encourage owners or operators of purse seine vessels to call NMFS at 562-432-1850 in advance of landing with an estimate of how much Pacific bluefin tuna was caught on the trip.
        Inseason Action Announcements

        Inseason actions to reduce trip limits would be imposed by NMFS, effective upon the time and date that would appear in a notice on the NMFS website (https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/pacific-bluefin-tuna-commercial-harvest-status). Inseason actions would also be announced over a United States Coast Guard (USCG) Notice to Mariners broadcast three times per day for 4 days on USCG channel 16 VHF. NMFS would then publish a notice of the reduced trip limit in the Federal Register as soon as practicable.
        In 2021, if NMFS determines that cumulative catch is expected to be 250 mt during January-March, 275 mt during April-June, 300 mt during July-September, or 325 mt during October-December (based on landing receipts, or other available information), a 15-mt trip limit would be imposed by NMFS using the inseason action procedures described above.
        In 2021, if NMFS determines that cumulative catch is expected to be 325 mt during January-March, 350 mt during April-June, or 375 mt during July-December, a 2-mt trip limit would be imposed by NMFS using the inseason action procedures described above.

        When NMFS determines that the annual catch limit is expected to be reached in 2021 (based on landings receipts or other available fishery information), NMFS would prohibit United States commercial fishing vessels from targeting, retaining, transshipping or landing Pacific bluefin tuna captured in the Convention Area for the remainder of the calendar year (i.e., fishery closure). NMFS would provide a notice on the NMFS website and the USCG would provide a Notice to Mariners three times per day for 4 days on USCG channel 16 VHF announcing that targeting, retaining, transshipping or landing of Pacific bluefin tuna captured in the Convention Area will be prohibited on a specified effective time and date through the end of that calendar year. Upon that effective date, a commercial fishing vessel of the United States may not be used to target, retain on board, transship, or land Pacific bluefin tuna captured in the Convention Area. However, any Pacific bluefin tuna already on board a fishing vessel on the effective date could be retained on board, transshipped, and/or landed within 14 days of the effective date, to the extent authorized by applicable laws and regulations. NMFS would then publish a notice of the fishery closure in the Federal Register as soon as practicable. In the event the trip limit was reduced early or the fishery was closed due to an overestimation of catch, NMFS could reverse immediately the prior inseason action to increase the trip limit or re-open the fishery after landing receipts have been received and the landed catch quantity confirmed. NMFS would announce these actions on the NMFS website and by USCG Notice to Mariners on USCG channel 16 VHF.
        Proposed Catch Reporting

        NMFS would provide updates on Pacific bluefin tuna catches in the Convention Area to the public via the NMFS website: https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/pacific-bluefin-tuna-commercial-harvest-status. NMFS would update the NMFS website provided the updates do not disclose confidential information (in accordance with Magnuson-Stevens Fishery Conservation and Management Act section 402(b), 16 U.S.C. 1881a(b)). These updates are intended to help participants in the U.S. commercial fishery plan for reduced trip limits and attainment of the annual limits.
        Classification

        The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act and other applicable laws, subject to further consideration after public comment.

        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        This proposed rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
        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. Under the Regulatory Flexibility Act (RFA), the SBA defines a “small business” (or “small entity”) as one with annual revenue that meets or is below an established size standard. On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for RFA compliance purposes only (80 FR 81194). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. SBA current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016. Id. at 81194.

        The 85 small entities the proposed action would directly affect are all U.S. commercial fishing vessels that may target (e.g., coastal pelagic purse seine vessels) or incidentally catch (e.g., drift gillnet vessels) Pacific bluefin tuna in the Convention Area; however, not all vessels that have participated in this fishery decide to do so every year, with annual participation as low as 8 vessels. These vessels are characterized in greater detail below. U.S. commercial catch of Pacific bluefin tuna from the IATTC Convention Area is primarily made in waters off of California by the coastal pelagic small purse seine fleet, which targets Pacific bluefin tuna opportunistically, and other fleets (e.g., California large-mesh drift gillnet, surface hook-and-line, west coast longline, and Hawaii's pelagic fisheries) that catch Pacific bluefin tuna in small quantities, such as incidentally.
        Since 2006, the average annual revenue per vessel from all finfish fishing activities for the U.S. purse seine fleet that have landed Pacific bluefin tuna has been less than $11 million, whether considering an individual vessel or per vessel average. From 2015-2019, purse seine vessels that caught Pacific bluefin tuna had an average ex-vessel revenue of about $986,000 per vessel per year in inflation-adjusted 2019 dollars (based on all species landed). Annually, from 2015 to 2019, the number of small coastal pelagic purse seine vessels that landed Pacific bluefin tuna to the U.S. West Coast ranged from five to nine. Table 1 below summarizes the number of coastal purse seine vessels landing Pacific bluefin tuna in each year 2015-2019, along with total annual landings and revenues.

          Table 1—Number of Small Coastal Purse Seine Vessels Landing Pacific Bluefin Tuna to the U.S. West Coast, Along With Annual Landings and Revenues From Pacific Bluefin Tuna, 2015-2019

            Year
            Number of vessels

            Landings(mt)

            Ex-vessel revenue

            2015
            5
            86.4
            $74,806

            2016
            5
            315.7
            351,767

            2017
            8
            466.4
            516,135

            2018
            8
            11.5
            11,378

            2019
            9
            226.1
            258,937

            Note: Landings and ex-vessel revenue are for all small coastal purse seine vessels that landed Pacific bluefin tuna in the year. Source Pacific Fisheries Information Network.

        The revenue derived from Pacific bluefin tuna is 2.4 percent of the overall revenue for coastal pelagic purse seine vessels that landed Pacific bluefin tuna (annually from 2015-2019), with the majority of revenue in recent years from Pacific sardine, market squid, and to a lesser extent yellowfin tuna. Since implementing a 25 mt trip limit (i.e., since 2015), average catch was 11.2 mt per trip. 35 of 96 trips (i.e., 36 percent) conducted by purse seine vessels landing Pacific bluefin tuna from 2015-2019 exceeded 15 mt. Vessels meeting the trip limit before completion of a trip or fishing after the trip limit is reduced to 2 mt will likely shift their focus and target other species, such as yellowfin tuna, if available, or coastal pelagic species. This rule is not expected to impose any direct regulatory costs on pelagic purse seine vessels, although vessels would face indirect operational costs if they approach the trip limits or the total catch approaches the annual limit. Because this rule is expected to affect about one third of trips of a fishery that accounts for about 2 percent of annual revenues, there is not expected to be a significant negative impact to profitability. Revenues and costs, and corresponding profitability, of coastal purse seine vessels are not expected to be significantly altered as a result of this rule, which is applicable to 2021 only.

        Since 2006, the average annual revenue per vessel from all finfish fishing activities for the U.S. fleet with landings of Pacific bluefin tuna in small quantities, such as from incidental catch or hook-and-line, has been less than $11 million. These vessels include drift gillnet, surface hook-and-line, and longline gear-types. The revenues of these vessels are also not expected to be significantly altered by the rule. From 2015 to 2019, between 7 and 14 drift gillnet vessels, 40 to 80 surface hook-and-line vessels, and 1 longline vessel landed Pacific bluefin tuna. During these years, vessels with gears other than purse seine landed an annual average of 35.2 mt of Pacific bluefin tuna, worth approximately $290,735. Of these landings, only two trips out of approximately 1,450 over 5 years exceeded 2 mt of incidental Pacific bluefin tuna catch, and three additional trips were within 25 percent of the limit. The four vessels who took these five trips close to or in excess of the 2 mt limit would be most likely to be impacted by this rule; however, these trips represented less than 1 percent of these vessels' average annual revenue from all species. As a result, it is anticipated that proposed reduced trip limits will not have a significant impact on these vessels. If the fishery is closed before the end of the calendar year, regulatory discards by these fleets are likely. Such a scenario would result in a greater impact to the fleet that catches Pacific bluefin tuna in small quantities, as opposed to the coastal purse seine fleet, which would simply cease targeting of Pacific bluefin tuna. This could result in a greater conservation benefit for the overfished Pacific bluefin stock.
        Although there are no disproportionate impacts between small and large business entities because all affected business entities are small, the impacts among the different types of vessel business entities will be different. Implementation of the reduced trip limit for an entire calendar year in this proposed action would impose a greater economic impact on the U.S. coastal purse seine fleet. Prior to the implementation of a 25-mt trip limit in 2015, these vessels landed an average of 41 mt per trip, and were capable of landing over 70 mt in a single trip (based on landings from purse seine vessels landing Pacific bluefin tuna in the EPO from 2011-2014). It is possible that the affected vessels will not target Pacific bluefin tuna if the trip limit is 2 mt or less; however, as observed in 2018 while the trip limit was restricted to 1 mt for purse seine vessels, some purse seine vessels did land Pacific bluefin tuna in small quantities. A total of 425 mt is available to U.S. vessels in 2021.
        Pursuant to the RFA and NMFS' December 29, 2015, final rule (80 FR 81194), this certification was developed using NMFS' revised size standards. NMFS considers all entities subject to this action, which based on recent participation ranges from 8 to 85 because participation fluctuates substantially from year-to-year, to be small entities as defined by both the former, lower size standards and the revised size standards. Because each affected vessel is a small business, there are no disproportional affects to small versus large entities. Based on profitability analysis above, the proposed action, if adopted, will not have significant adverse economic impacts on these small business entities. As a result, an initial regulatory flexibility analysis is not required and was not prepared for this proposed rule.
        This proposed rule contains revisions to a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These revisions have been submitted to OMB for approval. This rule revises the existing requirements for the collection of information 0648-0778 by removing the pre-trip notification requirement. This reduces the number of respondents and anticipated number of responses, reducing the burden by an estimated 4.55 hours. Public reporting burden for e-ticket submission is estimated to average 0 hours because the submission will already be required by the California Code of Regulations. The voluntary pre-landing notification is estimated to average 2.55 hours, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

        Public comment is sought regarding: Whether this proposed collection of information is 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 collection of information, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collection of information at www.reginfo.gov/public/do/PRAMain.

        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.

          List of Subjects in 50 CFR Part 300
          Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.

          Dated: December 28, 2020.
          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 300 is proposed to be amended as follows:

          PART 300—INTERNATIONAL FISHERIES REGULATIONS

            Subpart C—Eastern Pacific Tuna Fisheries

        1. The authority citation for part 300, subpart C, continues to read as follows:

          Authority:
          16 U.S.C. 951 et seq.

        2. In § 300.24, revise paragraph (u) to read as follows:

          § 300.24
          Prohibitions.

          (u) Use a United States commercial fishing vessel in the Convention Area to target, retain on board, transship, or land Pacific bluefin tuna in contravention of § 300.25(g)(2) through (4) and (g)(7).

        3. In § 300.25, revise paragraph (g) to read as follows:

          § 300.25
          Fisheries management.

          (g) Pacific bluefin tuna (Thunnus orientalis) commercial catch limits in the eastern Pacific Ocean for 2021. The following is applicable to the U.S. commercial fishery for Pacific bluefin tuna in the Convention Area in the year 2021.
          (1) All commercial fishing vessels of the United States combined may capture, retain, transship, or land no more than 425 metric tons.
          (2) A 20-metric ton trip limit will be in effect until any of the following criteria are met:
          (i) If NMFS anticipates cumulative catch will reach 250 metric tons during January through March, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 325 metric tons during January through March, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.
          (ii) If NMFS anticipates cumulative catch will reach 275 metric tons during April through June, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 350 metric tons during April through June, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.
          (iii) If NMFS anticipates cumulative catch will reach 300 metric tons during July through September, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 375 metric tons during July through September, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.

          (iv) If NMFS anticipates cumulative catch will reach 325 metric tons during October through December, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 375 metric tons during October through December, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.
          (3) After NMFS determines that the catch limit under paragraph (g)(1) of this section is expected to be reached, NMFS will close the fishery effective upon the date provided in the actual notice, in accordance with paragraph (g)(6) of this section. Upon the effective date in the actual notice, targeting, retaining on board, transshipping, or landing Pacific bluefin tuna captured in the Convention Area shall be prohibited as described in paragraph (g)(4) of this section.
          (4) Beginning on the date provided in the actual notice of the fishing closure announced under paragraph (g)(3) of this section, a commercial fishing vessel of the United States may not be used to target, retain on board, transship, or land Pacific bluefin tuna captured in the Convention Area through the end of the calendar year. Any Pacific bluefin tuna already on board a fishing vessel on the effective date of the notice may be retained on board, transshipped, and/or landed within 14 days after the effective date published in the fishing closure notice, to the extent authorized by applicable laws and regulations.
          (5) If an inseason action taken under paragraph (g)(2), (3), or (4) of this section is based on overestimate of actual catch, NMFS will reverse that action in the timeliest possible manner, provided NMFS finds that reversing that action is consistent with the management objectives for the affected species. The fishery will reopen effective on the date provided in the actual notice in accordance with paragraph (g)(6) of this section.

          (6) Inseason actions taken under paragraphs (g)(2), (3), (4), and (5) of this section will be by actual notice from posting on the National Marine Fisheries website (https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/pacific-bluefin-tuna-commercial-harvest-status) and a United States Coast Guard Notice to Mariners. The Notice to Mariners will be broadcast three times daily for 4 days. This action will also be published in the Federal Register as soon as practicable. Inseason actions will be effective from the time specified in the actual notice of the action (i.e., website posting and United States Coast Guard Notice to Mariners), or at the time the inseason action published in the Federal Register is effective, whichever comes first.
          (7) If landing Pacific bluefin tuna into the State of California, fish landing receipts must be submitted to the California Department of Fish and Wildlife in accordance with the requirements of applicable State law and regulations, with the exception that the submission must occur within 24 hours of landing.

      [FR Doc. 2020-28999 Filed 1-4-21; 8:45 am]
      BILLING CODE 3510-22-P