        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 697
        [Docket No. 000412106-0262-02; I.D.  032200A]
        RIN 0648-AO02
        Atlantic Coastal Fisheries Cooperative Management Act Provisions; Horseshoe Crab Fishery; Closed Area

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to prohibit fishing for horseshoe crabs and limit possession of them in an area in the exclusive economic zone (EEZ) encompassing a 30-nautical mile (nm) radius (in a shape roughly equivalent to a rectangle) seaward from the midpoint of the territorial sea line at the mouth of Delaware Bay.  The intent of this proposed rule is to provide protection for the Atlantic coast stock of horseshoe crab, and to promote the effectiveness of the Atlantic States Marine Fisheries Commission’s (Commission) Interstate Fishery Management Plan (ISFMP) for horseshoe crab.

          DATES:
          Written comments must be received on or before October 31, 2000.

          ADDRESSES:
          Comments on the proposed rule should be sent to, and copies of an Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), are available from, Richard H. Schaefer, Chief, Staff Office for Intergovernmental and Recreational Fisheries, National Marine Fisheries Service, 8484 Georgia Avenue, Suite 425, Silver Spring, MD 20910.  Comments regarding the collection-of-information requirement contained in this proposed rule should be sent to Richard H. Schaefer and to the Office of Information and Regulatory Affairs attention: NOAA Desk Officer, Office of Management and Budget, Washington D.C. 20503.

          FOR FURTHER INFORMATION CONTACT:
          Paul Perra, 301-427-2014.

        SUPPLEMENTARY INFORMATION:
        Proposed Action

        NMFS is proposing Federal horseshoe crab conservation measures in the EEZ under the authority of section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), 16 U.S.C. 5101 et seq., which states that, in the absence of an approved and implemented Fishery Management Plan under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce may implement regulations to govern fishing in the EEZ, i.e., from 3 to 200 nm offshore.  These regulations must be (1) compatible with the effective implementation of an ISFMP developed by the Commission, and (2) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.
        The proposed rule would prohibit fishing for and limit the possession of horseshoe crabs in an area in the EEZ encompassing a 30-nm radius (in a shape roughly equivalent to a rectangle) seaward from the midpoint of the territorial sea line at the mouth of Delaware Bay.  The proposed rule would also allow whelk fishing vessels to possess horseshoe crabs as bait on board in the closed area as long as the vessels do not have commercial fishing gear on board aside from whelk fishing traps.  Other commercial gears (e.g., trawls, dredges, gill nets) would be prohibited on vessels in the closed area with horseshoe crabs on board.  As a consequence of not allowing other commercial gears on the whelk vessels in the closed area, whelk vessels would not be able to fish for species other than whelks in the closed area.  NMFS does not know the number of whelk vessels that may fish in the closed area or if they conduct other fishing activities in conjunction with their whelk fishing trips, but assumes from discussions with the ASMFC Horseshoe Crab Plan Monitoring Team that combined whelk and other species trips do not take place or are minimal.  The proposed rule would also require fishermen to return to the water all horseshoe crabs caught in the closed area incidental to any fishing operations, including whelk fishing.
        The proposed closed area in the EEZ off Delaware Bay would be bounded as follows: (1) On the north by a straight line connecting points 39°14.6'N. lat., 74°30.9'W. long. (3 nm off of Peck Beach, New Jersey) and 39°14.6'N lat., 74°22.5'W. long.; (2)  On the east by a straight line connecting points 39°14.6'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 74°22.5'W. long.; (3) On the south side by a straight line connecting points 38°22.0'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 75°00.4'W. long. (3 nm off of Ocean City, MD); and (4) On the west by state waters.
        The Horseshoe Crab Fishery
        Horseshoe crabs are used as bait in American eel, whelk, and catfish fisheries, and are utilized by the biomedical industry.  Also, horseshoe crabs play an important ecological role because they are a food source for loggerhead sea turtles, and their eggs are an important food source for migratory shorebirds.  They have been directly harvested by hand and by various gears including gill nets, traps, pound nets, otter trawls, and seines.  There is no evidence that a recreational fishery ever developed for horseshoe crab.  While no complete coastwide assessment exists for horseshoe crabs, some mid-Atlantic surveys show several cases of localized horseshoe crab population declines that are of concern.
        Estimated total landings of horseshoe crabs for bait from 1993 to 1997 increased from 1,906,059 lb (864.6 metric tons) to 6,146,487 lb (2788 metric tons).  These numbers are probably an underestimation of landings for these years because all horseshoe crab landings have not been reported due to a lack of reporting requirements in some states.  Improvements in the collection of landings data in recent years could account for some of the increase in landings.  However, estimates of landings in Delaware, Maryland, New Jersey, New York, and Rhode Island indicate a rapid growth in the fishery due primarily to the increased use of horseshoe crab as bait in the American eel, whelk, and catfish fisheries, and a shift in fishing pressure from declining traditional fisheries to the horseshoe crab fishery.  The current estimate for total Atlantic coast horseshoe crab bait landings for 1998, based on a 1998/99 NMFS/Commission  Horseshoe Crab Technical Committee harvest survey, is 8,995,700 lb (4080.4 metric tons).
        Addendum 1 to the ISFMP for Horseshoe Crabs
        Historically, horseshoe crabs were managed by individual states until 1998 when the Commission adopted an ISFMP for horseshoe crab in response to concerns of possible localized declines in the Atlantic Coast horseshoe crab stock.  The Commission approved and implemented Addendum 1 to the Commission’s ISFMP for horseshoe crab in February 2000.  Addendum 1's intent is to protect and maintain horseshoe crab spawning stock at levels that can sustain fisheries and that will provide an abundance of horseshoe crab eggs as a food source for migratory shorebirds.  Addendum 1 mandates that all Atlantic coastal states implement their portion of a Commission quota system for the bait harvest of horseshoe crabs and implement a stock and fishery monitoring program as established by the Commission.  In addition, Addendum 1 requests that NMFS prohibit the transfer of horseshoe crabs in Federal waters, and establish an offshore horseshoe crab sanctuary in Federal waters within a 30-nautical mile radius off the mouth of the Delaware Bay.
        To support the Commission's horseshoe crab management efforts under Addendum 1, NMFS published an Advance Notice of Proposed Rulemaking (ANPR)(65 FR 25698, May 3, 2000), to ask the public to consider the establishment of an offshore horseshoe crab closed area in the EEZ encompassing a 30-nm radius off the mouth of the Delaware Bay.  Because of the difficulty in enforcing a semi-circular closed area, NMFS proposes establishing a closed area in Federal waters that would be roughly equivalent in area to a semi-circle with a 30-nm radius, but roughly in the shape of a rectangle.  The comment period closed on June 2, 2000.  Public response was overwhelming for proceeding with a proposed rule to implement the closed area.  Two-hundred-eighty-one comments were received in favor of continuing the rulemaking process, and one was against.  Thirteen conservation organizations, whose combined membership is estimated at over one million people, wrote in support of the closure.  The States of Delaware, Maryland, and New Jersey also sent in letters supporting the closure.  The one letter opposing the closure was written on behalf of two Virginia conch processing companies.  It stated that a closed area in addition to the other measures in the Commission’s ISFMP for horseshoe crabs is not scientifically justified.  The commenter felt that the closed area will force the harvest of horseshoe crabs from more offshore areas to more nearshore areas where female horseshoe crabs tend to be more prominent, which would be detrimental to the protection of the stock.

        NMFS feels the closed area is a risk-averse (i.e., minimizes the risk to the horseshoe crab resource) measure that is based on the best available scientific information and designed to protect the horseshoe crabs in the Delaware Bay area.  Furthermore, the closed area, in conjunction with current state laws including the Atlantic coast states’ implementation of their quotas in Addendum 1, is part of a comprehensive management program that will control fishing effort on horseshoe crabs in nearshore areas and the EEZ off Delaware Bay.  Addendum 1 is adequate to protect horseshoe crabs because it will reduce fishing effort on both male and female horseshoe crabs by protecting them when they are concentrated in the closed area and by reducing state quotas.
        The Need for a Closed Area Off Delaware Bay
        Under Addendum 1, Atlantic coast states have recently implemented measures to control the harvest of horseshoe crabs as bait.  As a result, more fishing for horseshoe crabs is taking place in the EEZ, particularly in the mid-Atlantic area.  Therefore, efforts to support the Commission’s management plan and provide adequate conservation measures for horseshoe crabs by implementing compatible management measures in the EEZ are a very important part of the coastwide management program for horseshoe crab.
        Addendum 1 manages horseshoe crabs as a coastwide stock from Maine through Florida, but pays particular attention to protecting the localized Delaware Bay population of horseshoe crabs by recommending a closed area to horseshoe crab fishing in the EEZ encompassing a 30-nm radius off the mouth of Delaware Bay.  Since there are no Federal laws restricting harvest for horseshoe crab in EEZ waters adjoining Delaware Bay, horseshoe crabs in the Delaware Bay area can be legally caught in the EEZ, and landed in other states that have less strict conservation measures for horseshoe crabs than the Delaware Bay states.  Under current state laws, all Atlantic coast states monitor and manage fishing for horseshoe crabs in state waters.  The states of New Jersey, Delaware, and Maryland have implemented especially strong conservation measures to protect horseshoe crabs in the Delaware Bay area, such as restricting the types of gear used, number of vessels that can harvest horseshoe crabs, and the amounts of horseshoe crabs that can be harvested from their waters.  While some fishing may be allowed in state waters near the mouth of Delaware Bay, it is very closely controlled by state regulations.  However, adjoining EEZ waters have no Federal restrictions on horseshoe crab harvest.
        This special concern for horseshoe crabs in the Delaware Bay area arises because the Delaware Bay area is the epicenter of abundance for the Atlantic coast horseshoe crab stock and concentrated fishing effort in the EEZ near the mouth of Delaware Bay could deplete the horseshoe crab population in the Delaware Bay area.  Maintaining the abundance of horseshoe crabs in the Delaware Bay is important because migratory shorebirds stop in the Delaware Bay area where they depend on horseshoe crab eggs as an important food source at a critical time during their migrations.  Also, the Delaware Bay area supports horseshoe crab fisheries that harvest horseshoe crabs for whelk and eel bait, and for medical use.  The increased landings of horseshoe crabs from the EEZ has caused concern for the ability of the mid-Atlantic horseshoe crab population to continue to provide enough eggs for migratory shorebird needs as well as maintaining a sustainable fisheries over the long term.  The proposed closed area will give added protection to the localized population of horseshoe crabs that tend to concentrate near the mouth of the Delaware Bay.  Horseshoe crabs have been found as far as 35 nm from shore.  They tend to concentrate nearshore in the spring and move further offshore into deeper water in the fall and winter.  The proposed closed area is known to have high concentrations of horseshoe crabs and is large enough to protect horseshoe crabs in the shallow and deeper waters adjacent to Delaware Bay as they move inshore and offshore throughout the year.  The proposed closed area will serve as an integral part of the comprehensive State/Federal management program detailed in Addendum 1.
        In addition to this proposed rule, NMFS intends to propose, under a separate rulemaking, a rule to establish reporting and permitting requirements, and prohibit transfers at sea of horseshoe crabs by federally permitted vessels, as recommended to NMFS by the Commission.

        Additional background for the proposed rule for the closed area is available and contained in a EA/RIR/IRFA prepared by NMFS (see ADDRESSES).
        Changes from ANPR
        The following are minor adjustments to the closed area’s latitude and longitude readings identified in the ANPR:
        39°15.0'N. lat., has been changed to 39°14.6'N. lat.; 74°32.66'W. long., has been changed to 74°30.9'W. long.; 74°22.0'W. long., has been changed to 74°22.5'W. long.; and 75°35.46'W. long., has been changed to 75°00.4'W. long.
        Classification
        NMFS prepared an initial regulatory flexibility analysis (IRFA) that describes the impact this proposed rule, if adopted, would have on small entities.  A summary of the IRFA is as follows:

        This proposed rule is published under the authority of section 803 of the ACFCMA.  The purpose of the proposed rule is to improve cooperative management for the Atlantic coast horseshoe crab (Limulus polyphemus)  and to provide protection to the Delaware Bay population of horseshoe crabs to support conservation of the resource and help assure an adequate supply of horseshoe crab eggs for migrating shorebirds as well as an adequate supply of horseshoe crabs for bait and medical purposes over time.  The need for the closed area is explained in the preamble to this proposed rule and is not repeated here.   The proposed rule is estimated to affect 18 fishing vessels, all of which are small businesses; effects on them are expected to be minor.  Of these 18 vessels, 8 target horseshoe crabs directly and 10 land horseshoe crabs caught incidentally while targeting other species.  This proposed rule may also affect vessels that fish for whelks and other species on the same trip in the closed area.  However, it is unknown whether any vessels make such trips in the closed area and, if so, how many.  NMFS requests comments on this issue.

        There is an application requirement for persons or vessels seeking to obtain an exempted fishing permit under 50 CFR sections 697.22 and 600.745.  No special skills are required to complete the application for an exempted fishing permit.  The response time to complete the application is estimated to be 1 hour per vessel.  No other Federal rules duplicate or conflict with the proposed action.  Six alternatives were examined counting the proposed action.  They were: Alternative 1: no action; Alternative 2: a closed area using a radius of 30 nm, prohibition on possession of horseshoe crabs; Alternative 3: a closed area using a radius of 30 nm, limited possession of horseshoe crabs by whelk fishermen allowed; Alternative 4: a closed area using a radius of 15 nm, prohibition on possession of horseshoe crabs; Alternative 5: a closed area using a radius of 15 nm, limited possession of horseshoe crabs by whelk fishermen; and Alternative 6: a closed area using a radius of 60 nm, limited possession of horseshoe crabs by whelk fishermen.
        The preferred alternative would close an area encompassing a 30-nm radius off the mouth of Delaware Bay to horseshoe crab fishing, and allow limited possession of horseshoe crabs in the closed area by whelk vessels.  Of the 18 vessels affected, 8 direct effort on horseshoe crabs, and 10 harvest and sell horseshoe crabs that were caught incidently while directing effort on other species.  The reduction in annual total revenue  for the 8 vessels that conduct directed fishing trips is likely to be much lower than the $694,650, which is the total 1998 EEZ horseshoe crab combined dockside landings for Maryland, Delaware, and Virginia).  Since these vessels would be able to continue to fish for horseshoe crabs in adjoining areas, NMFS assumes they would do so with a reduction in efficiency because the density of horseshoe crabs decreases as you move further away from the mouth of Delaware Bay.  For the purpose of our analysis, we assumed that efficiency is reduced by 10 percent, which is likely since NMFS trawl surveys show horseshoe crabs to be less dense in areas outside the closed areas.  A corresponding 10-percent reduction in landings value would be about $69,465.  The reduction in annual revenue for the 10 vessels that incidently harvest horseshoe crabs is expected to be less than $3,000 per vessel or about $30,000.
        Analysis for the non-preferred alternatives as compared to the preferred alterative is as follows:

        The no action alternative would not reduce revenue to any vessels in the short term, but may reduce future ex-vessel revenues if taking no action results in a decline in the horseshoe crab resource off Delaware Bay.   Alternative 2 to close an area encompassing a 30-nm radius off of mouth of Delaware Bay to horseshoe crab fishing and to prohibit  possession of horseshoe crabs would affect the same number of vessels that harvest horseshoe crabs by either directed effort or incidental catch and have the same associated revenue reduction for those vessels as the preferred Alternative 3 ($30,000 for the 10 vessels that have incidental harvest, and less than $69,465 for the 8 vessels that make directed horseshoe crab trips).  Also, under Alternative 2 all whelk vessels that fish in the proposed area and use horseshoe crabs for bait would be affected. Under Alternative 3, they could continue to fish for whelks with horseshoe crabs.  It is not known how many whelk vessels fish in the proposed area but it is assumed that some whelk vessels would have to use alternate baits or search for other fishing areas under Alternative 2.  Therefore, revenue would be reduced for some of the whelk fishing fleet.  Alternative 4 to close an area encompassing a radius of 15 nm and prohibit possession of horseshoe crabs would have lower economic impacts on vessels that harvest horseshoe crabs than the preferred Alternative 3 because the area is smaller.  However, impacts on whelk fishermen under Alternative 4 may be greater than those on whelk fishermen under Alternative 3 because whelk fishermen would have to travel around the Alternative 4 closed area if they have horseshoe crabs on board.  Under Alternative 4, as in Alternative 2, whelk vessels would be prevented from using horseshoe crabs as bait in the closed area.  For Alternative 5 to close an area using a radius of 15 nm with limited possession of horseshoe crabs, economic impacts are expected to be similar to or slightly lower than those for the preferred Alternative 3 because the closed area is smaller than under the preferred alternative.  For Alternative 6 to close an area using a radius of 60 nm while allowing limited possession of horseshoe crabs, economic impacts are expected to be similar but more than those for the preferred alternative, because the closed area is larger than the preferred alternative.  A copy of the IRFA is available from NMFS (see ADDRESSES).
        Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.

        This rule contains a collection-of-information requirement subject to the PRA.  That collection of information requirement is for persons or vessels requesting an exempted fishing permit subject to § 697.22 and § 600.745 to complete and submit an application.  The response time to complete the application is estimated to be 1 hour per vessel.  The collection of this information has been approved by the OMB under OMB Control Number 0648-0309.  This includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.  Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).
        This proposed rule has been determined to be significant for purposes of Executive Order 12866.

          List of Subjects in 50 CFR Part 697
          Fisheries, Fishing.

          Dated: October 10, 2000.
          William T. Hogarth,
          Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

          For the reasons set out in the preamble, 50 CFR chapter VI, part 697, is proposed to be amended as follows:

            PART 697—ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

          1.  The authority citation for part 697 is revised to read as follows:

            Authority:
            16 U.S.C. 5101 et seq.

          2.  In § 697.2, the definitions for “Whelk” and “Whelk trap” are added alphabetically to read as follows:

            § 697.2
            Definitions.

            Whelk means Busycon sp.

            Whelk trap means any structure or device, other than a net or a dredge, that is placed or designed to be placed on the ocean bottom, is designed for or is capable of catching whelks, and has an unobstructed opening on its top of not less than eight inches (20.3 cm) square or nine inches (22.9 cm) in diameter through which whelks may pass.

          3.  Section 697.7, paragraphs (e) (3) through (5) are added to read as follows:

            § 697.7
            Prohibitions.

        (e) * * *
        (3) Fish for horseshoe crabs in the Carl N. Shuster Jr., Horseshoe Crab Reserve described in § 697.23(f)(1).
        (4) Possess any horseshoe crabs in the area described in § 697.23(f)(1), except as allowed by § 697.23(f)(2).
        (5) Fail to return immediately to the water horseshoe crabs caught in the area described in § 697.23(f)(1).

          4.  Section 697.22 is revised to read as follows:

            § 697.22
            Exempted fishing.
            The Regional Administrator may exempt any person or vessel from the requirements of this part for the conduct of exempted fishing beneficial to the management of the American lobster, weakfish, Atlantic striped bass, Atlantic sturgeon, or horseshoe crab, resource or fishery pursuant to the provisions of § 600.745 of this chapter.

            (a) The Regional Administrator may not grant such exemption unless it is determined that the purpose, design, and administration of the exemption is consistent with the objectives of any applicable stock rebuilding program, the provisions of the ACFCMA, the Magnuson-Stevens Act, and other applicable law, and that granting the exemption will not:
            (1) Have a detrimental effect on the American lobster, Atlantic striped bass, weakfish, Atlantic sturgeon, or horseshoe crab resource or fishery; or
            (2) Create significant enforcement problems.
            (b) Each vessel participating in any exempted fishing activity is subject to all provisions of this part, except those explicitly relating to the purpose and nature of the exemption.  The exemption will be specified in a letter issued by the Regional Administrator to each vessel participating in the exempted activity.  This letter must be carried aboard the vessel seeking the benefit of such exemption.  Exempted fishing activity shall be authorized pursuant to and consistent with § 600.745 of this chapter.

          5.  Section 697.23, paragraph (f) is added to read as follows:

            § 697.23
            Restricted gear areas.

            (f) Carl N. Schuster Jr., Horseshoe Crab Reserve— (1) No fishing vessel or person on a fishing vessel may fish for or possess horseshoe crabs in the area known as the Carl N. Shuster Jr., Horseshoe Crab Reserve bounded as follows:
            (i) On the north by a straight line connecting points 39°14.6'N. lat., 74°30.9'W. long. (3 nm off of Peck Beach, NJ) and 39°14.6'N lat., 74°22.5'W. long.
            (ii) On the east by a straight line connecting points 39°14.6'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 74°22.5'W. long.
            (iii) On the south side by a straight line connecting points 38°22.0'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 75°00.4'W. long. (3 nm off of Ocean City, MD).
            (iv) On the west by state waters.
            (2) Paragraph (f)(1) of this section does not apply to fishing vessels or persons on fishing vessels fishing with whelk traps or with whelk traps on board, provided that no other commercial fishing gear aside from whelk traps is on board or is being used.
            (3) Horseshoe crabs caught in the area described in paragraph (f)(1) of this section must be returned immediately to the water.

      [FR Doc. 00-26498 Filed 10-11-00; 4:11 pm]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        RIN 0648-BK22
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Dolphin and Wahoo Fishery Off the Atlantic States; Amendment 12

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

          ACTION:
          Announcement of availability of fishery management plan amendment; request for comments.

          SUMMARY:
          The South Atlantic Fishery Management Council (Council) submitted Amendment 12 to the Fishery Management Plan (FMP) for the Dolphin and Wahoo Fishery off the Atlantic States (Dolphin Wahoo FMP) for review, approval, and implementation by NMFS. If approved by the Secretary of Commerce, Amendment 12 to the Dolphin Wahoo FMP (Amendment 12) would add bullet mackerel and frigate mackerel to the Dolphin Wahoo FMP and designate them as ecosystem component (EC) species. The purpose of Amendment 12 is to acknowledge the ecological role of bullet mackerel and frigate mackerel as forage fish and to achieve the ecosystem management objectives in the Dolphin Wahoo FMP.

          DATES:
          Written comments must be received on or before March 30, 2021.

          ADDRESSES:
          You may submit comments on Amendment 12, identified by “NOAA-NMFS-2020-0146,” by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0146, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Nikhil Mehta, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: 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 by NMFS. 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), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Electronic copies of Amendment 12, which includes a fishery impact statement, a Regulatory Flexibility Act analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/amendment-12-add-bullet-mackerel-and-frigate-mackerel-ecosystem-component-species.

          FOR FURTHER INFORMATION CONTACT:
          Nikhil Mehta, telephone: 727-824-5305, or email: nikhil.mehta@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any FMP or FMP amendment to the Secretary of Commerce (the Secretary) for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, publish an announcement in the Federal Register notifying the public that the FMP or amendment is available for review and comment.
        The Council prepared the Dolphin Wahoo FMP that is being revised by Amendment 12. If approved, Amendment 12 would be implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.
        Background

        The Council manages dolphin and wahoo under the Dolphin Wahoo FMP in Federal waters off the Atlantic states from Maine south to the Florida Keys in the Atlantic. In the western North Atlantic, bullet mackerel are found from Cape Cod to the Gulf of Mexico, and frigate mackerel are found mostly from North Carolina to Florida. As described in Amendment 12, both bullet mackerel and frigate mackerel are found in the diets of dolphin and wahoo in the North Atlantic. In particular, wahoo has been demonstrated to have a strong dietary reliance on bullet and frigate mackerel, indicating that these mackerel species are the most dominant forage species observed in the diets of wahoo. Dolphin tend to have more diverse diets than wahoo and have a lower reliance on these mackerel species as prey. Additionally, bullet and frigate mackerel have been identified as important forage species for other offshore pelagic predatory species in the Atlantic such as blue marlin and yellowfin tuna. Bullet mackerel feed on a variety of prey, especially clupeoids (i.e., herrings and sardines), crustaceans, and squids. Frigate mackerel feed on a variety of fish, squid, and small crustaceans. Therefore, given their presence as a common forage fish and prey food source, bullet mackerel and frigate mackerel are an important component of the marine environment in the Atlantic. There is no stock assessment for dolphin, wahoo, bullet mackerel, or frigate mackerel. In Atlantic Federal waters, dolphin and wahoo are targeted both commercially and recreationally. Annual reported commercial and recreational landings of bullet mackerel and frigate mackerel are low along the entire Atlantic coastline.
        Regulations implemented under the Magnuson-Stevens Act define EC species as “stocks that a Council or the Secretary has determined do not require conservation and management, but desire to list in a FMP in order to achieve ecosystem management objectives” (50 CFR 600.305(d)(13)). National Standards (NS) General guidelines state that a Council should consider a list of ten non-exhaustive list of factors when deciding whether additional stocks require Federal conservation and management (50 CFR 600.305(c)(1)). The proposed EC designation for bullet and frigate mackerel was recommended to the Council by the Council's Scientific and Statistical Committee (SSC), their Dolphin Wahoo Advisory Panel (AP), the Habitat Protection and Ecosystem-Based Management (Habitat) AP, and through extensive positive comments from the public during scoping of Amendment 12. The Dolphin Wahoo AP and Habitat AP members acknowledged that wahoo particularly target these mackerel species as prey. The AP members also stated that the Council should consider a “conservative approach” to ensure there are no major increases in the harvest of bullet mackerel and frigate mackerel in the foreseeable future as a result of any EC designation. This designation would address the Council's growing emphasis on developing ecosystem management approaches to fisheries management and advancing ecosystem management objectives in the Dolphin Wahoo FMP.

        The extent to which the low landings of bullet mackerel and frigate mackerel occur within the dolphin and wahoo fishery is unknown; however, it is unlikely that these species are often harvested in conjunction with efforts to target dolphin and wahoo, especially in the commercial sector. Bullet and frigate mackerel have largely been landed commercially in the Mid-Atlantic region using gill net, pound net, float trap, and otter trawl gear, none of which are allowable gear types in the dolphin and wahoo fishery. Recreational landings of bullet and frigate mackerel have largely occurred in the South Atlantic Region, with some limited catches reported from the Mid-Atlantic Region. Furthermore, recreational fishermen have also noted that these species are used as bait for tuna and billfish, such as blue marlin. NMFS and the Council have determined that bullet mackerel and frigate mackerel are currently not in need of conservation and management, making them eligible for consideration as EC species. This preliminary eligibility determination was done after consideration of the provisions within the NS Guidelines and requirements of the Magnuson-Stevens Act. Furthermore, adding bullet mackerel and frigate mackerel to the Dolphin Wahoo FMP as EC species meets the FMP's ecosystem management objectives (50 CFR 600.305(c)(5) and 600.310(d)(1)).
        Action Contained in Amendment 12
        Amendment 12 would add bullet mackerel and frigate mackerel to the Dolphin Wahoo FMP and designate them as EC species. There would be no additional management measures added to the Dolphin Wahoo FMP as a result of this EC species designation, either for bullet and frigate mackerel, or for dolphin and wahoo.
        If approved and implemented, Amendment 12 and the proposed rule could be expected to result in potential indirect benefits such as increased awareness among the fishermen, fishing communities, data collecting agencies, and regulatory entities managing dolphin, wahoo, bullet mackerel, and frigate mackerel. If landings for these two mackerel species were to greatly increase in the future to unsustainable levels, fisheries managers could be made aware of the changing stock status before the stocks are depleted which may have subsequent beneficial effects on populations of several economically important predatory fish species, including dolphin, wahoo, blue marlin, and yellowfin tuna.
        Proposed Rule for Amendment 12

        A proposed rule to implement Amendment 12 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule for Amendment 12 to determine whether it is consistent with the Dolphin Wahoo FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.
        Consideration of Public Comments
        The Council has submitted Amendment 12 for Secretarial review, approval, and implementation. Comments on Amendment 12 must be received by March 30, 2021. Comments received during the respective comment periods, whether specifically directed to Amendment 12 or the proposed rule, will be considered by NMFS in the decision to approve, partially approve, or disapprove, Amendment 12. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: January 14, 2021.
          Kelly Denit,
          Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2021-01224 Filed 1-28-21; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 010823213-1213-01; I.D. 071701C]
        RIN 0648-AK70
        Fisheries of the Exclusive Economic Zone Off Alaska; Individual Fishing Quota Program

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations to implement Amendment 54 to the Fishery Management Plan (FMP) for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and Amendment 54 to the FMP for Groundfish of the Gulf of Alaska (collectively, Amendments 54/54).  These amendments would make three changes in the Individual Fishing Quota (IFQ) Program: (1) allow a quota share (QS) holder’s indirect ownership of a vessel, through corporate or other collective ties, to substitute for vessel ownership in the QS holder’s own name for purposes of hiring a skipper to fish the QS holder’s IFQ; (2) revise the definition of “a change in the corporation or partnership” to include language specific to estates; and (3) revise sablefish use limits to be expressed in QS units rather than as percentages of the QS pool.  These proposed amendments are intended to improve the effectiveness of the IFQ Program and are necessary to promote the objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982 (Halibut Act) with respect to the IFQ fisheries.

          DATES:
          Comments on the proposed rule must be received by November 26, 2001.

          ADDRESSES:
          Comments must be sent to Sue Salveson, Assistant Regional Administrator for Sustainable Fisheries, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK  99802, Attn:  Lori Gravel, or delivered to the Federal Building, 709 West 9th Street, Juneau, AK.  Copies of Amendments 54/54 and the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for the amendments are available from NMFS at the above address.

          FOR FURTHER INFORMATION CONTACT:
          John Lepore, 907-586-7228 or email at john.lepore.noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        The groundfish fisheries in the Exclusive Economic Zone (3 to 200 nautical miles offshore) of the Bering Sea and Aleutian Islands management area (BSAI) and Gulf of Alaska (GOA) are managed under their respective FMPs.  Both FMPs were prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act, Public Law 94-265, 16 U.S.C. 1801.  The GOA and BSAI FMPs were approved by NMFS and became effective in 1978 and 1982, respectively.  The IFQ Program, a limited access management system for the fixed gear Pacific halibut and sablefish fisheries off Alaska, was approved by NMFS in January 1993, and fully implemented beginning in March 1995.  The IFQ Program for the sablefish fishery is implemented by the FMPs and Federal regulations under 50 CFR part 679, Fisheries of the Exclusive Economic Zone Off Alaska, under authority of the Magnuson-Stevens Act.  The IFQ Program for the halibut fishery is implemented by Federal regulations promulgated under the authority of the Halibut Act.
        Indirect Vessel Ownership

        The IFQ Program contains a number of provisions designed to promote an owner-operator IFQ fishing fleet.  For example, one exception to the owner-onboard provisions of the IFQ Program allows initial recipients of QS in categories B, C, or D (catcher vessel QS) to employ hired skippers to fish their IFQ, provided that the QS holder owns the vessel on which the IFQ species are being fished.  This exception was created to allow IFQ fishermen who had operated their fishing businesses in this manner before implementation of the IFQ Program to continue such business practices.  While the IFQ Program prohibits leasing of IFQ derived from catcher vessel QS, this exception allows initial recipients of catcher vessel QS to remain ashore while having their IFQ harvested by a hired skipper.  Corporations, partnerships, and other collective entities that hold initial allocations of QS must designate a hired skipper, the individual who will actually fish the IFQ derived from the collective’s QS.
        Since implementing the IFQ Program in 1995, NMFS has broadly interpreted the regulations’ vessel ownership provision to allow a person holding an initial allocation of QS to hire a skipper to fish the QS holder’s IFQ on a vessel owned by another “person,” provided that the QS holder can show an association to the owner of the vessel through corporate or other collective ties.  For example, the QS holder may be a shareholder or partner in the corporation or partnership that owns the vessel or a collective QS holder may have the individual owner of the vessel as a shareholder or partner in the collective.
        At the beginning of the 1997 IFQ season, NMFS announced to the IFQ fleet that this policy of broadly interpreting the hired skipper provision’s vessel ownership requirement would continue in effect for the 1997 season, or until the Council determined whether the policy comports with its original intention.  In September 1997, the Council requested an analysis of alternatives for this issue and, in October 1998, recommended that the regulations be revised to provide explicitly for this policy.  This proposed action would allow a QS holder’s association to a collective entity to substitute for the QS holder’s vessel ownership in his or her own name for purposes of hiring a skipper to fish the QS holder’s IFQ.
        The hired skipper provisions define “vessel ownership” as a minimum of 20 percent interest in the vessel to prevent persons from acquiring minimal or nominal vessel ownership interest simply to exploit the hired skipper provision in ways not intended by the Council (see 64 FR 24960, May 10, 1999).  To maintain the intent of the requirement for minimum ownership interest in a vessel, a QS holder would have to hold the same 20 percent minimum interest in the collective that he or she otherwise would have to hold in a vessel to hire a skipper to fish his or her IFQ.  For example, an individual wishing to hire a skipper to fish his or her IFQ on a vessel owned by a corporation in which he or she is a shareholder must hold a minimum of 20 percent interest in the corporation.  Likewise, a corporation may hire a skipper to fish its collectively held IFQ on a vessel owned by a shareholder in the corporation only if that shareholder holds a minimum of 20 percent interest in the vessel, either indirectly through an interest in the corporation or through direct ownership of the vessel or through a combination of both indirect and direct ownership of the vessel.
        Revising the Definition of a Change in Corporation or Partnership
        To prevent excessive consolidation of QS and promote an owner-operator IFQ fleet, the IFQ Program provides a means for determining corporations, partnerships, and other collective entities to be qualified to hold catcher vessel QS.  The regulations pertaining to collective QS holdings provide that upon any “change” in a collective entity, any collectively held QS will cease to generate annual IFQ for harvesting IFQ species until the QS is transferred to a qualified individual.  The regulations define a “change” in the collective entity to mean the addition of a shareholder or partner to the collective entity.  By thus defining such a “change,” the Council clearly expressed its intent to prevent collective entities from holding catcher vessel QS and using the resulting IFQ indefinitely.
        The current IFQ regulations do not address changes in estates holding QS.  Under the current rules, an estate may be issued an initial allocation of catcher vessel QS based on the qualifications of a deceased fisherman.  However, because an estate is not a “collective” with the potential to acquire additional members, the present definition of a “change in the corporation or partnership” provides no way of determining at which point an estate’s QS holdings will cease to generate annual IFQ.  This allows an estate to hold QS and fish the resulting IFQ indefinitely.
        To assure that catcher vessel QS held by estates eventually transfer into the possession of qualified individuals, these proposed amendments would revise the definition of “a change in the corporation or partnership” to state that for estates holding QS a “change” occurs upon a legal order for final distribution of the estate.  At the point that an estate’s holdings are legally distributed, the estate is effectively dissolved.  Allowing an estate to continue holding catcher vessel QS and fishing the resulting IFQ beyond that point would compromise the Council’s intent to ensure that catcher vessel QS eventually transfer to qualified individuals.  Therefore, when an estate “changes” in this manner, its QS would be restricted from generating annual IFQ until the QS is transferred to a qualified individual.  This requirement would prevent estates from holding QS and fishing the resulting IFQ indefinitely.  Upon a legal order for the final distribution of an estate, the estate’s QS holdings would become restricted in the same way QS held by a corporation or partnership becomes restricted when the corporation or partnership adds a shareholder or partner.
        Sablefish Use Limits
        The IFQ Program limits the amount of QS an individual may use to harvest IFQ species.  Such use limits were created to address the concern that an unrestricted market for QS could result in a few powerful interests controlling most of the landings.  They were also created to address the possibility of   excessive decreases in the number and demographic distribution of vessels and fishermen participating in the IFQ Program.  In the original implementing regulations for the IFQ Program (58 FR 59375, November 9, 1993), use limits are expressed as percentages of the QS pool, the total amount of QS available in a given year.

        In 1997, in an action that increased the halibut use limits in IFQ regulatory area 4, all halibut use limits were revised to be expressed in numbers of QS units based on the 1996 QS pool (62 FR 7947, February 21, 1997).  A use limit expressed as a percentage of the QS pool provides a variable use limit, because the size of the QS pool may vary from year to year.  Consequently, a fisherman’s QS holdings that have reached the limit in one year may actually exceed the limit in a subsequent year without the fisherman having acquired any additional QS.  To allow QS holders the means to gauge more accurately the position of their holdings in relation to the use limits and thus to manage their fishing businesses in a more rational manner, NMFS, in consultation with the Council, revised the halibut use limits to provide a fixed limit that does not change according to the size of the QS pool.  This revision of the halibut use limits was accomplished with a regulatory amendment, because the halibut provisions of the IFQ Program are implemented under authority of the Halibut Act, and no halibut fishery management plan exists.
        The sablefish use limits are set in the FMPs and can be revised only through the FMP amendment process specified at section 304 of the Magnuson-Stevens Act.  If approved, proposed Amendments 54/54 would standarize the application of use limits for halibut and sablefish by providing sablefish QS holders with the same benefit of a stable use limit by which to manage their fishing businesses more rationally.
        Current regulations at 50 CFR 679.42 (e) restrict sablefish QS use, so that (1) no person, individually or collectively, may use an amount of sablefish QS greater than 1 percent of the combined total sablefish QS for the GOA and BSAI IFQ regulatory areas, unless the amount in excess of 1 percent was received in the initial allocation of QS; and (2) in the IFQ regulatory area east of 140° W. long., no person, individually or collectively, may use more than 1 percent of the total amount of QS for this area, unless the amount in excess of 1 percent was received in the initial allocation of QS.  This action would revise the sablefish use limit percentages to 3,229,721 units of sablefish QS; and (2) for the IFQ regulatory area 2C: 688,485 units of sablefish QS.
        The 1996 regulatory amendment that changed halibut use limits to QS units based the limit on that year’s QS pool (62 FR 7947, February 21, 1997).  In that action, NMFS implied that sablefish use limits would be similarly changed.  For the sake of consistency and to meet expectations raised by NMFS in the former action, the sablefish use limits would be based also on the 1996 QS pool.  NMFS is particularly interested in receiving public comments on this aspect of the proposed amendments.
        This alternative would not change the amount of QS that an individual could use.  It simply proposes to set those limits in QS units, instead of as a percentage of the QS pool.
        Classification
        At this time, NMFS has not determined that the FMP amendments that this proposed rule would implement are consistent with the national standards of the Magnuson-Stevens Act and the provisions of the Halibut Act and other applicable laws.  NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.
        The proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
        This action proposes to make changes to the IFQ program that are necessary to ensure the program continues to be managed in a manner intended by the Council.  The proposed changes would: (1) Specify the vessel ownership level for purposes of hiring a skipper, (2) clarify when estates must distribute QS being held, and (3) revise sablefish QS limit to be expressed as a specific number rather than as a percentage.
        The proposed rule would allow a QS holder’s indirect ownership of a vessel, through corporate or other ties, to substitute for vessel ownership in the QS holder’s own name for purposes of hiring a skipper to fish the QS holder’s QS.  This  action merely modifies NMFS’ regulations to more explicitly reflect current NMFS’ policy of allowing QS holders to substitute a corporate link to vessel ownership for purposes of hiring a skipper.
        Another alternative considered was to prohibit a corporation or partnership from hiring a skipper to fish its collectively held QS on a vessel owned by an individual, even if that individual is a member of the corporation or partnership.  Under such an alternative, an individual would not be allowed to hire a skipper to fish his or her individually held QS on a vessel owned by a corporation or partnership, even if that individual is a shareholder or partner in the collective that owns the vessel.  This could result in considerable disruptions to small entities, as it would deviate from current NMFS practice and could prevent collective entities from fishing the QS of their shareholders or partners.  Such collective entities would suffer considerable adverse impacts if they were unable to use their vessels to catch IFQ fish.
        Although the proposed action may cause individual partners or shareholders to incur costs associated with meeting the proposed ownership requirements, this proposed action is unlikely to have adverse effects on the small entities themselves, as corporations or partnerships will not incur significant new costs and their net values will remain unchanged.
        The proposed rule would also revise the definition of a “change in corporation or partnership” to include language specific to estates.  NMFS proposes that upon a legal order for final distribution of the estate the estate would lose its eligibility to hold QS.  Upon such legal order for the final distribution, the estate’s QS holdings would become restricted in the same way QS held by a corporation or partnership becomes restricted when the corporation or partnership adds a shareholder or partner and would accordingly be required to transfer any estate-held QS to a qualified individual.  It is the intent of the IFQ Program to promote an owner-operator fleet in the fixed gear fisheries for Pacific halibut and sablefish.
        This alternative should make more QS available on the open market for qualified individuals.  Market prices for QS could go down, thereby making it easier for qualified small entities to acquire and use QS.  Under the other alternative, keeping the status quo, QS held by an estate does not automatically transfer.  Such estates could continue to receive annual allocations of QS, thereby limiting the supply of QS available.  This could raise the price of such shares such that it could prevent others who desire to fish and are otherwise qualified from purchasing those shares.  Such an occurrence would frustrate the intent of the IFQ Program to promote an owner-operator fleet.
        The proposed rule would revise sablefish use limits to be expressed in QS units, rather than as a percentage of the QS pool.  In 1996, the Council recommended that halibut use limits be expressed as fixed numbers of QS units, rather than percentage.  This change was implemented by NMFS and provided halibut QS holders with a more stable reference for measuring their halibut QS holdings against area use limits.  Amendment 54/54 would change the calculation of sablefish use limits to a fixed number of QS units, based on the 1996 QS pools, for consistency with the halibut fishery and eliminate operational problems resulting from differing QS systems in the IFQ fishery.

        This proposed rule would eliminate year-to-year fluctuations in the user limit and facilitate the ability of sablefish IFQ fishermen to stay within the user limit for sablefish QS.  Under the no action alternative to the proposed action, sablefish fishing capacity, measured in terms of QS, may fluctuate each year as the TAC changes.  This uncertainty may impose a burden on fishermen close to, or at, the user limit.  They may be forced to adjust their holdings each year to stay within the user limit for sablefish.  As individual fishermen are likely to catch the same amount of sablefish under either system, the proposed action mostly likely reduces impacts on small entities as it eases compliance with sablefish user limits and sablefish fixed gear fishermen, who also catch halibut, would no longer have to operate under two different use limit systems.   Because the halibut fixed gear fishery is operating successfully under the fixed QS number system, the most feasible alternative is to use the fixed number QS system for sablefish, rather than devise a completely different system for both fisheries.
        At the end of 2000, NMFS determined that 4,546 entities hold QS (3,649 unique persons hold halibut QS and 897 unique persons hold sablefish QS).  Given the average price levels for halibut and sablefish and the maximum amount of QS for both species that could be held by any unique entity, the maximum amount of annual revenue would not exceed 3 million dollars (implied maximum of $1,400,000).  Therefore, all these entities would be treated as small entities for purposes of the Regulatory Flexibility Act (RFA).  However, this likely overestimates the number of small entities that may be affected by this action because it does not take into account income these entities may derive from other fisheries and assumes that all QS holders would be affected by these changes.

        No additional recordkeeping and reporting requirements are associated with this action, nor is NMFS aware of any other Federal rules that would duplicate, overlap, or conflict with this proposed action.  At present, the data necessary to determine the full extent of impact to small entities is not available to NMFS (i.e., operational cost data).   Therefore, NMFS is unable to conclude that this action has no impact on small entities as defined by the RFA.  A copy of the IRFA is available from NMFS (see ADDRESSES).   NMFS specifically requests comments on any additional alternatives to these proposed actions that may achieve the stated goals and reduce impacts to small entities.

          List of Subjects in 50 CFR Part 679

        Alaska, Fisheries, Recordkeeping and reporting requirements.

          Dated:  October 5, 2001.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

          For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

            PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

          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., and 3631 et seq.

          2.  In § 679.42, paragraphs (e), (j)(2), and (j)(3) are revised, and paragraphs (i)(3) and (j)(6) are added to read as follows.

            § 679.42
            Limitations on use of QS and IFQ.

          (e) Sablefish QS use. (1) No person, individually or collectively, may use more than 3,229,721 units of sablefish QS, except if the amount of a person’s initial allocation of sablefish QS is greater than 3,229,721 units, in which case that person may not use more than the amount of the initial allocation.
          (2) In the IFQ regulatory area east of 140° W. long., no person, individually or collectively, may use more than 688,485 units of sablefish QS for this area, except if the amount of a person’s initial allocation of sablefish QS is greater than 688,485 units, in which case that person may not use more than the amount of the initial allocation.

          (i) * * *
          (3) The exemption provided in paragraph (i)(1) of this section may be exercised by an individual on a vessel owned by a corporation, partnership, or other entity in which the individual is a shareholder, partner, or member with a minimum of 20 percent interest, provided that the corporation, partnership, or other entity owns a minimum of 20 percent interest in the vessel.

          (j) * * *
          (2) For purposes of this paragraph (j), “a change” means:
          (i) For corporations and partnerships, the addition of any new shareholder(s) or partner(s), except that a court appointed trustee to act on behalf of a shareholder or partner who becomes incapacitated is not a change in the corporation or partnership; or
          (ii) For estates, the final or summary distribution of the estate.
          (3)  The Regional Administrator must be notified of a change in the corporation, partnership, or other entity as defined in this paragraph (j) within 15 days of the effective date of the change.  The effective date of change, for purposes of this paragraph (j), is the date on which the new shareholder(s) or partner(s) may realize any corporate liabilities or benefits of the corporation or partnership or, for estates, the date of the determination of a legal heir to the estate.

          (6) The exemption provided in paragraph (j) of this section may be exercised by a corporation, partnership, or other entity on a vessel owned by a person who holds a minimum of 20 percent interest in the corporation, partnership, or other entity, provided that the person who owns the vessel possesses a minimum of 20 percent interest in the vessel.

      [FR Doc. 01-25716  Filed 10-11-01; 8:45 am]
      BILLING CODE  3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 210407-0077]
        RIN 0648-BK42
        Pacific Halibut Fisheries; Catch Sharing Plan

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule to revise regulations for the commercial individual fishing quota (IFQ) Pacific halibut (halibut) fisheries for the 2021 IFQ fishing year. This proposed rule would remove limits on the maximum amount of halibut 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 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, and other applicable laws.

          DATES:
          Submit comments on or before April 28, 2021.

          ADDRESSES:
          You may submit comments, identified by FDMS Docket Number NOAA-NMFS-2021-0032, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2021-0032 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Susan Meyer. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

            Instructions: NMFS may not consider comments sent by any other method, to any other address or individual, or received after the end of the comment period. All comments received are a part of the public record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous).

          Electronic copies of the Categorical Exclusion and the Regulatory Impact Review (RIR) prepared for this action (referred to as the “Analysis”) are available from http://www.regulations.gov or from the NMFS Alaska Region website at http://alaskafisheries.noaa.gov.

          Additional requests for information regarding halibut may be obtained by contacting the IPHC, 2320 W Commodore Way, Suite 300, Seattle, WA 98199-1287; or Sustainable Fisheries Division, NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802; Sustainable Fisheries Division.

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

        SUPPLEMENTARY INFORMATION:
        Authority for Action
        The IPHC and NMFS manage fishing for halibut through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations governing the halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention). The IPHC's regulations are subject to approval by the Secretary of State with the concurrence of the Secretary of Commerce (Secretary). NMFS publishes the IPHC's regulations as annual management measures pursuant to 50 CFR 300.62. The 2021 IPHC annual management measures were published on March 9, 2021 (86 FR 13475).
        The Halibut Act, 16 U.S.C. 773c(a) and (b), provides the Secretary with general responsibility to carry out the Convention and the Halibut Act. The Halibut Act, 16 U.S.C. 773c(c), also provides the North Pacific Fishery Management Council (Council) with authority to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations. Regulations recommended by the Council may be implemented by NMFS only after approval by the Secretary.
        The Council has exercised its authority in developing halibut management programs for the subsistence, sport, and commercial halibut fisheries. The Secretary exercised authority to implement the commercial IFQ halibut fishery management program (58 FR 59375; November 9, 1993). The IFQ Program for the halibut fishery is implemented by Federal regulations at 50 CFR part 679.
        The halibut IFQ fishery is managed in specific areas defined by the IPHC. These IFQ regulatory areas (Areas) are: Area 2A (California, Oregon, and Washington); Area 2B (British Columbia); Area 2C (Southeast Alaska), Area 3A (Central Gulf of Alaska), Area 3B (Western Gulf of Alaska), and Area 4 (subdivided into five areas, 4A through 4E, in the Bering Sea and Aleutian Islands of Western Alaska). These Areas are described at 50 CFR part 679, Figure 15. Halibut allocated under the IFQ program in Areas 2C, 3A, 3B, and Area 4 are subject to limits on the maximum amount of halibut IFQ that may be harvested by a vessel, commonly known as vessel use caps.

        NMFS also allocates halibut to the Western Alaska Community Development Quota (CDQ Program) in Areas 4B, 4C, 4D, and 4E (§ 679.31(a)(2)). Halibut is allocated to the CDQ Program in Areas 4B, 4C, 4D, and 4E and those allocations are not subject to a vessel use cap. Throughout this preamble, the term “vessel use cap” refers to regulations applicable to the halibut IFQ fishery.
        Background
        This proposed rule would 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 would be implemented under this proposed 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, 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). 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), and for a specific range of vessel sizes that may be used to harvest the sablefish or 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, C, and D shares are designated to be fished on CVs that meet specific length designations (§ 679.40(a)(5)).
        NMFS annually issues IFQ permits to each QS holder. An annual IFQ permit authorizes the permit holder to harvest a specified amount of the IFQ species in an Area from a specific operation type and vessel category. IFQ is expressed in pounds (lbs) 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) (§ 679.42(f)); (2) limits on the number of small amounts of indivisible QS units, known as QS blocks, that a person can hold (§ 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 (§ 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 (§ 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 (§ 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.
        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 would 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 proposed 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 proposed rule is consistent with the IPHC, which establishes catch limits and calculates mortality in net pounds.
        Relevant to this proposed rule, regulations at § 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 lbs (42.1 mt). This vessel use cap applies to vessels harvesting IFQ halibut in the areas subject to this proposed rule: Areas 4A, 4B, 4C, and 4D.
        In addition, regulations at § 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 § 679.42(h)(1)'s vessel use cap, § 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 proposed 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 emergency rule for removing vessel use caps in Area 4 which provided flexibility to the IFQ halibut fleet: In multiple areas, vessels harvested up to or over the vessel use cap. Based on stakeholder engagement and considering a range of factors, the Council recommended, and now NMFS issues, this proposed 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 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);
        • 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 risk 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 emergency rule, the range of factors considered for this proposed 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 has established an expedited 15-day comment period for this proposed rule. Due to the widespread industry support and the Council's request for expedited rulemaking and NMFS determination that the final rule should take effect before fishing vessels approach their use caps, the benefits of providing a shortened comment period and potentially expedited implementation outweigh there is good cause to expedite this thoroughly-considered action.
        The Council did not recommend, and this proposed 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 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 proposed regulatory amendments in this rule would 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 proposed 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 proposed rule would not modify other elements of the IFQ Program. This proposed rule would 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 proposed rule would 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 proposed rule would not modify other limitations on the use of QS and IFQ described in the previous sections of this preamble.
        Proposed 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 proposed rule would add 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 proposed 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.
        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 proposed action is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Alaska.
        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 Initial Regulatory Flexibility Analysis section.
        Initial Regulatory Flexibility Analysis

        This Initial Regulatory Flexibility Analysis (IRFA) was prepared for this proposed rule, as required by Section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to describe the economic impact this proposed rule, if adopted, would have on small entities. The IRFA describes the action; the reasons why this proposed rule is proposed; the objectives and legal basis for this proposed rule; the number and description of directly regulated small entities to which this proposed rule would apply; the recordkeeping, reporting, and other compliance requirements of this proposed rule; and the relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule. The description of the proposed action, its purpose, and the legal basis are explained in the preamble and are not repeated here.
        For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
        Number and Description of Small Entities Regulated by This Proposed Rule

        This proposed rule would directly regulate the owners and operators of vessels that have traditionally harvested 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 proposed rule (see ADDRESSES).
        Impacts of This Action on Small Entities

        This action would relieve a restriction which could lead to a larger total harvest of IFQ in Area 4 in fishing season 2021. Although it is difficult to predict the direct impact of the regulatory exemptions 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 proposed rule that accomplish the stated objectives of the proposed action, consistent with applicable statutes, and that would minimize any significant economic impact of the proposed 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 proposed by 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 proposed 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 proposed 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: April 7, 2021.
          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 proposed to be amended as follows:

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

        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.

        2. In § 679.42, add paragraph (h)(1)(iii) to read as follows:

          § 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. 2021-07520 Filed 4-12-21; 8:45 am]
      BILLING CODE 3510-22-P