        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 600
        [Docket No. 111014628-3329-01]
        RIN 0648-BB54
        Magnuson-Stevens Act Provisions; Implementation of the Shark Conservation Act of 2010

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes a rule to implement the provisions of the Shark Conservation Act of 2010 (SCA) and prohibit any person from removing any of the fins of a shark at sea, possessing shark fins on board a fishing vessel unless they are naturally attached to the corresponding carcass, transferring or receiving fins from one vessel to another at sea unless the fins are naturally attached to the corresponding carcass, landing shark fins unless they are naturally attached to the corresponding carcass, or landing shark carcasses without their fins naturally attached. NMFS proposes this action to amend existing regulations and make them consistent with the SCA.

          DATES:
          Written comments must be received by June 17, 2013.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2012-0092, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2012-0092 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.
          • Mail: Submit written comments to Kim Marshall, National Marine Fisheries Service, NOAA; 1315 East-West Highway, Silver Spring, MD 20910.
          • Fax: 301-713-1193; Attn: Kim Marshall.

            Instructions: Comments must be submitted by one of the above methods to ensure that the comments 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). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

          Electronic copies of the Environmental Assessment (EA), the Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action are available on the Federal e-Rulemaking Portal www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:
          Kim Marshall, 301-427-8556.

        SUPPLEMENTARY INFORMATION:

        On December 21, 2000, the President signed into law the Shark Finning Prohibition Act (Pub. L. 106-557) (SFPA). Among other things, the SFPA amended section 307 of the Magnuson-Stevens Act to prohibit removing any of the fins of a shark (including the tail) and returning the remainder of the shark to the sea. In addition, the SFPA prohibited any person from having custody, control, or possession of shark fins aboard a fishing vessel without the corresponding carcass, and prohibited any person from landing shark fins without the corresponding carcass. NMFS published a final rule to implement the SFPA on February 11, 2002 (67 FR 6194).

        In 2010, the President signed into law the Shark Conservation Act of 2010 (Pub. L. 111-348, Jan. 4, 2011) (SCA). The SCA amended two existing acts, the High Seas Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act), 16 U.S.C. 1826d et seq., and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act or MSA), 16 U.S.C. 1801 et seq., to improve the conservation of sharks.
        In particular, the SCA amended the Magnuson-Stevens Act to prohibit any person from: (1) Removing any of the fins of a shark (including the tail) at sea; (2) having custody, control, or possession of a fin aboard a fishing vessel unless it is naturally attached to the corresponding carcass; (3) transferring a fin from one vessel to another vessel at sea, or receiving a fin in such transfer, unless the fin is naturally attached to the corresponding carcass; or (4) landing a fin that is not naturally attached to the corresponding carcass, or landing a shark carcass without its fins naturally attached. For the purpose of the SCA and these regulations, “naturally attached,” with respect to a shark fin, means to be attached to the corresponding shark carcass through some portion of uncut skin.

        This proposed action would amend NMFS' regulations to implement these provisions of the SCA. Specifically, the proposed rule would amend regulations at 50 CFR Part 600, Subpart N to prohibit the removal of shark fins at sea, namely, the possession, transfer and landing of shark fins that are not naturally attached to the corresponding carcass, and the landing of shark carcasses without the corresponding fins naturally attached. NMFS notes that it interprets the prohibitions in that section as applying to sharks, not skates and rays, and solicits public comment on whether clarification is needed in the regulatory text on this or any other issues (see ADDRESSES).
        NMFS also proposes here to adopt language from section 103(b) of the SCA regarding individuals engaged in commercial fishing for smooth dogfish. While this proposed rule adopts the statutory text, NMFS intends to further develop those provisions in a subsequent rulemaking. This rule would also combine the existing sections §§ 600.1203 and 600.1204 into one section. The text in all sections would be amended to implement the provisions of the SCA.
        The MSA authorizes the Secretary to regulate fisheries seaward of the inner boundary of the EEZ, which is defined as a line coterminous with the seaward boundary of each U.S. coastal state. 16 U.S.C. 1802(11). Thus, the SCA provisions apply to any person subject to the jurisdiction of the U.S., including persons on board U.S. and foreign vessels, engaging in activities prohibited under the statute for sharks harvested seaward of the inner boundary of the EEZ. Federal regulations pertaining to the conservation and management of specific shark fisheries are set forth in Parts 635, 648 and 660 of Title 50 of the Code of Federal Regulations. For Atlantic highly migratory species fisheries, as a condition of its federal permit, a vessel's fishing, catch, and gear are subject to federal requirements even when fishing in state waters. See 50 CFR 635.4(a)(10) (noting that, when fishing within the waters of a state with more restrictive regulations, persons aboard the vessel must comply with those requirements). This rule amends 50 CFR part 600, subpart N, and does not supersede or amend any other federal regulation or requirement related to the conservation and management of sharks.
        The SCA also amended the Moratorium Protection Act, which provides for identification and certification of nations to address illegal, unreported, or unregulated fishing; bycatch of protected living marine resources; and, as amended by the SCA, shark catches. 16 U.S.C. 1826h-1826k. With regard to sharks, the Moratorium Protection Act provides for identification of a nation if its fishing vessels have been engaged during the preceding calendar year in fishing activities or practices in waters beyond any national jurisdiction that target or incidentally catch sharks and the nation has not adopted a regulatory program for sharks that is comparable to the United States, taking into account different conditions. 16 U.S.C. 1826k(a)(2). NMFS published a final rule that amends the Moratorium Protection Act regulations consistent with the SCA on January 16, 2013 (78 FR 3338).
        Relationship of Regulations With Current State Rules
        Several states and territories have enacted or are considering enacting statutes that address shark fins. Each statute differs in its precise details, but generally most contain a prohibition on possession, landing or sale of, or other activities involving, shark fins. Depending on how they are interpreted and implemented, these statutes have the potential to undermine significantly conservation and management of federal shark fisheries.
        Under the Magnuson-Stevens Act, the United States claims sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the U.S. exclusive economic zone (EEZ) and also claims exclusive fishery management authority for specified resources beyond the EEZ. 16 U.S.C. 1811. To conserve and manage fishery resources and promote domestic commercial and recreational fishing under sound conservation and management principles, the Magnuson-Stevens Act authorizes NMFS and Fishery Management Councils to develop and implement federal fishery management plans, which must be consistent with ten national standards and other mandatory provisions set forth in the statute. 16 U.S.C. 1801, 1851(a) and 1853(a). The Magnuson-Stevens Act defines “conservation and management” as including measures “which are designed to assure that . . . a supply of food and other products may be taken, and that recreational benefits may be obtained, on a continuing basis.” 16 U.S.C. 1802(5). National Standard 1 requires that conservation and management measures under a fishery management plan, plan amendment or implementing regulations “prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” 16 U.S.C. 1851(a)(1). Obtaining optimum yield, which includes providing the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, is a fundamental principle under the Magnuson-Stevens Act. State prohibitions on possession, landing, transfer, or sale of sharks or shark fins lawfully harvested seaward of state boundaries constrain the ability of federal fishery participants to make use of those sharks for commercial and other purposes.

        Neither the SFPA nor the SCA suggest that Congress intended to amend the Magnuson-Stevens Act to prohibit the possession or sale of shark fins. Rather, Congress chose to prohibit discarding shark carcasses at sea, and required that fins be naturally attached to the carcass of the corresponding shark. The SCA therefore reflects a balance between addressing the wasteful practice of shark finning and preserving opportunities to land and sell sharks harvested consistent with the Magnuson-Stevens Act. Although state shark fin laws are also intended to conserve sharks, they may not unduly interfere with the conservation and management of federal fisheries.
        The Magnuson-Stevens Act preempts state regulation of fisheries in waters outside the boundaries of a state, except according to the narrow opportunities for state regulation specified at 16 U.S.C. 1856(a)(3). Within the U.S. EEZ, a State may regulate a fishing vessel only where: (1) The fishing vessel is registered under the laws of that State, and there is no federal fishery management plan or regulations for the fishery, or the State's laws and regulations are consistent with the applicable federal plan and regulations; or (2) the applicable federal plan delegates management of the fishery to the State, and the State's laws and regulations are consistent with that plan (16 U.S.C. 1856(a)(3)(A-B)). “State” means each of the several States, the District of Columbia, Puerto Rico, American Samoa, the Virgin Islands, Guam, and any other Commonwealth, territory, or possession of the United States (16 U.S.C. 1802(41)).
        State or territorial shark fin laws are preempted if they are inconsistent with the Magnuson-Stevens Act as amended by the SCA, implementing regulations for the statutes, or applicable federal fishery management plans or regulations. If state or territorial laws are construed or interpreted so they are consistent with federal law, fishery management plans and regulations, those laws are not preempted. For example, if a state law prohibiting the possession, landing, or sale of shark fins is interpreted not to apply to sharks legally harvested in federal waters, the law would not be preempted. On the other hand, a state law that interferes with accomplishing the purposes and objectives of the Magnuson-Stevens Act would be preempted. As described above, promoting commercial fishing under sound conservation and management principles is a key purpose of the Act. If sharks are lawfully caught in federal waters, state laws that prohibit the possession and landing of those sharks with fins naturally attached or that prohibit the sale, transfer or possession of fins from those sharks unduly interfere with achievement of Magnuson-Stevens Act purposes and objectives.
        The Magnuson-Stevens Act generally does not preempt a state's laws applicable to its fisheries in state waters and states that, “Except as provided in subsection (b), nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.” 16 U.S.C. 1856(a)(1). Regulations issued in 2002 at 50 CFR 600.1201(c) provide that: “Nothing in this regulation supersedes more restrictive state laws or regulations regarding shark finning in state waters.” The intent of this provision was to affirm that the regulations would not infringe on a state's jurisdiction or authority. It was not intended to imply that states may interfere with or impede accomplishment of fishery management objectives for federally-managed commercial and recreational fisheries. NMFS' view regarding state and federal authority has not changed since 2002, but the agency believes that section 600.1201(c) could be clarified. Thus, this proposed rule would revise section 600.1201(c) to state that the subpart does not supersede state laws or regulations governing conservation and management of state shark fisheries in state waters.
        Classification
        Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the other provisions of the Magnuson-Stevens Act and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are included at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
        NMFS proposes this action to implement the SCA. This proposed action would revise existing regulations that implement the SFPA, which banned “shark finning” (the practice of removing the fin or fins from a shark and discarding the remainder of the shark at sea). The proposed rule would amend regulations to prohibit the removal of shark fins at sea, namely, the possession, transfer and landing of shark fins that are not naturally attached to the corresponding carcass, and the landing of shark carcasses without the corresponding fins naturally attached. The SCA applies to any person subject to the jurisdiction of the U.S., including persons on board U.S. and foreign vessels, who engages in activities prohibited under the statute for sharks harvested seaward of the inner boundary of the EEZ. For Atlantic highly migratory species fisheries, as a condition of its federal permit, a vessel's fishing, catch, and gear are subject to federal requirements even when fishing in state waters. See 50 CFR 635.4(a)(10) (noting that, when fishing within the waters of a state with more restrictive regulations, persons aboard the vessel must comply with those requirements).
        This rule is expected to directly affect commercial and for-hire fishing vessels that land sharks harvested seaward of the inner boundary of the U.S. EEZ or possess permits which allow them to land sharks harvested seaward of the inner boundary of the U.S. EEZ. The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting 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 $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. For for-hire vessels, the other qualifiers apply and the receipts threshold is $7.0 million (NAICS code 713990, recreational industries).
        Sharks are harvested in several commercial fisheries that occur in the U.S. EEZ, including the spiny dogfish fishery in the northeast United States, the Atlantic HMS fishery in the northeast and southeast United States, the west coast HMS and groundfish fisheries, and the Hawaii and American Samoa-based pelagic longline fisheries, which allow retention of incidentally caught sharks. In addition, groundfish vessels in the Gulf of Alaska and Bering Sea and Aleutian Islands can retain sharks, although there are no directed shark fisheries and the vast majority of incidentally caught sharks are discarded.
        In 2011, 2,743 vessels were issued federal spiny dogfish permits, but only 326 of these vessels actually landed spiny dogfish. The total ex-vessel value of commercially landed spiny dogfish in calendar year 2011 was about $4.646 million. Thus, average ex-vessel revenue per vessel from spiny dogfish was approximately $14,250 in calendar year 2011. Based on these figures, all spiny dogfish vessels that might be affected by this proposed rule are determined for the purpose of this analysis to be small entities.

        As of October 2011, NMFS had issued 217 directed shark permits and 262 incidental shark permits in the Atlantic highly migratory species fishery. In 2011, the ex-vessel revenues for all sharks landed in the Atlantic highly migratory species fishery totaled $3,067,116. Thus, the average ex-vessel revenue per permitted vessel was approximately $6,400 in 2011. Based on these figures, all Atlantic highly migratory species shark vessels that might be affected by this proposed rule are determined for the purpose of this analysis to be small entities.
        Most sharks on the west coast are caught in the drift gillnet component of the HMS fishery and the northwest groundfish fishery. In 2011, 243 commercial vessels had shark landings on the west coast and total ex-vessel revenue for west coast shark landings was $349,634. Thus, in 2011, average ex-vessel revenue per vessel from shark landings was approximately $1,450. Average total ex-vessel revenue per vessel was about $107,000 in 2011. The maximum total ex-vessel revenue for a single vessel that commercially harvested sharks on the west coast was approximately $1.48 million in 2011. Based on these figures, all west coast commercial fishing vessels that land sharks and might be affected by this proposed rule are determined for the purpose of this analysis to be small entities.
        Entry into the Hawaii-based pelagic longline fishery is limited, with a maximum of 164 vessels allowed. As of March 2012, 132 vessels held Hawaii longline limited entry permits (out of 164 total permits). NMFS estimates the 2010 ex-vessel revenue of pelagic fish landed by Hawaii-based longline vessels to be about $70 million, or approximately $427,000 per vessel. In addition, in 2010, 267,000 pounds of sharks were landed by Hawaii-based longline vessels, and the average price for these sharks was $0.50 per pound in 2010. Thus, ex-vessel revenue from shark landings was $135,000 and average revenue per vessel was approximately $1,020. Thus, shark landings represent a very small portion of the ex-vessel revenue for the Hawaii-based longline vessels. In 2009, 50 vessels obtained American Samoa longline limited entry permits, and 26 of those vessels actively fished. These vessels' operations are economically smaller than those based in Hawaii. Based on these figures, all Hawaii and American Samoa-based pelagic longline vessels that might be affected by this proposed rule are determined for the purpose of this analysis to be small entities.
        As of 2009, approximately 867 vessels operated in the Bering Sea/Aleutian Islands (BSAI) or Gulf of Alaska (GOA) groundfish fisheries, with some vessels operating in both. Approximately 97% of shark catch in Alaska groundfish fisheries is discarded. The other 3 percent is retained and largely processed into fishmeal. Both large and small fishing entities operate in the BSAI groundfish fisheries. In 2008, 215 small groundfish entities operated in the BSAI, with estimated average 2008 gross revenues from all sources of about $1.53 million. Most of these (204) are catcher vessels, with estimated average gross revenues of $1.49 million. About half of the catcher-vessels (103) are trawlers with average gross revenues of about $1.71 million, 46 are hook-and-line vessels with average gross revenues of about $0.58 million, and 62 are pot vessels with average gross revenues of about $1.70 million. There were 11 small catcher-processors, seven of which were hook-and-line vessels with average gross revenues of about $2.65 million. These figures may overstate the number of small entities since it considers individual vessel gross revenues, but does not capture affiliations among vessels. The key fleets harvesting shark are the Pollock trawlers and the hook-and-line vessels fishing for Pacific cod. All of the Pollock trawlers are believed to be large entities, either because the vessels themselves gross more than $4 million or because they are members of American Fisheries Act cooperatives that gross more than that. The BSAI hook-and-line vessels targeting Pacific cod are predominately large vessels, though two are considered small.
        In 2008, 702 small groundfish entities operated in the GOA groundfish fisheries, with average revenues from all sources of about $0.60 million. Almost all of these vessels (697) are catcher vessels with average revenues of about $0.60 million. A majority of the catcher-vessels (520) use hook-and-line gear and have average revenues of about $0.49 million, while 73 are trawlers with average revenues of about $1.27 million, and 142 are pot vessels with average revenues of $0.85 million. There were five catcher-processors, mostly hook-and-line vessels, with average gross revenues of about $1.52 million. These figures may overstate the number of small entities since it considers individual vessel gross revenues, but does not capture affiliations among vessels. Halibut hook-and-line vessels took a significant proportion of the shark catch. There were an estimated 270 small sablefish hook-and-line vessels with an estimated average gross revenue from all sources of $0.77 million, an estimated 128 Pacific cod hook-and-line vessels with an average gross of $0.59 million, an estimated 21 small pelagic pollock trawlers with average gross revenues of about $1.02 million, five non-pelagic trawlers targeting arrowtooth flounder with average gross revenues of about $0.58 million, and five non-pelagic trawlers targeting shallow water flatfish with average gross revenues of about $0.65 million.
        Owners of charter boats or headboats (i.e., for-hire vessels) that are used to fish for, take, retain, or possess Atlantic tunas, sharks, swordfish, or billfish must obtain an Atlantic HMS Charter/Headboat permit. As of October 2011, NMFS had issued 4,194 Atlantic HMS Charter/Headboat permits. No information is currently available regarding the number of for-hire vessels that specifically land sharks in the Atlantic, Gulf of Mexico, or Caribbean Sea. However, in 2010, average annual gross revenue for headboats and charter vessels in the Northeast were approximately $214,000 and $27,650, respectively. In the South Atlantic, average annual gross revenue for headboats and charter vessels in 2009 were approximately $187,500 and $106,000, respectively. In the Gulf of Mexico, average annual gross revenue for headboats and charter vessels were about $230,000 and $45,500, respectively. According to these studies, no individual for-hire vessel had annual gross revenues exceeding $7 million. Thus, all for-hire vessels that may be affected by this proposed rule are determined for the purpose of this analysis to be small entities.

        Party and charter boats target sharks on the west coast as well. In 2011, about 620,256 west coast recreational trips (days) by party and charter boats retained about 16 metric tons of sharks. Similarly, an estimate of about 778,798 recreational trips (days) by west coast private or rental boats retained about 48 metric tons of sharks in 2011. In 2011, only 13 for-hire vessels were known to land sharks in California that were harvested from the EEZ. In 2000, the average annual gross revenue for a large or medium size charter vessel on the west coast was approximately $401,000, while the maximum annual gross revenue for one of these vessels was $7 million. In 2007, the average annual gross revenue for a charter vessel in Washington and Oregon was approximately $70,600. Based on these figures, all for-hire vessels that land sharks and might be affected by this proposed rule are determined for the purpose of this analysis to be small entities. Based on these figures, all charter boats, headboats, and that land sharks and might be affected by this proposed rule are determined for the purpose of this analysis to be small business entities.
        NMFS does not have information on types of small entities other than those discussed above. However, other types of small entities may exist. In addition, NMFS has little information on the number of transshipment vessels that would be affected by this rule. However, it is likely that the number of vessels would be small.
        The SCA and this proposed rule would not allow fins to be removed from sharks at sea. Shark fins from for-hire vessels generally are not removed from the carcass and not sold in commerce, so for-hire vessels are not expected to experience any economic effects as a result of this proposed rule.
        In many commercial fisheries across the country, such as Atlantic HMS and Northeast spiny dogfish, SCA provisions are consistent with current federal regulations. Further, directed fishing for sharks is prohibited and incidentally harvested sharks are largely processed as fishmeal in the BSAI and GOA groundfish fisheries. As a result, commercial vessels in these fisheries are not expected to experience any economic effects as a result of this proposed rule.
        The implementation of state shark fin laws in Washington, Oregon, California, Hawaii, and American Samoa, raises concerns about potential negative economic effects on some entities in West Coast, Western Pacific and other fisheries. State or territorial shark fin laws are preempted under the Supremacy Clause of the U.S. Constitution if they are inconsistent with the Magnuson-Stevens Act as amended by the SCA, implementing regulations for the statutes, or applicable federal fishery management plans or regulations. The clarification provided in this proposed rule may have positive economic effects on these fisheries. Therefore, the effect of this proposed rule on the commercial vessels in these fisheries is expected to be non-existent or potentially positive.
        No duplicative, overlapping, or conflicting Federal rules have been identified. This rule would not establish any new reporting or record-keeping requirements.
        One alternative, the status quo, was considered for the proposed action. This alternative would maintain the current regulations under the SFPA. Under this alternative, any person may remove and retain on the vessel fins (including the tail) from a shark harvested seaward of the inner boundary of the U.S. EEZ; however, the corresponding carcass must also be retained on board the vessel. It would be a rebuttable presumption that shark fins landed by a U.S. or foreign fishing vessel were taken, held, or landed in violation of the regulations if the total weight of the shark fins landed exceeds 5 percent of the total dressed weight of shark carcasses on board or landed from the fishing vessel. This alternative was rejected because it would not comply with the requirements of the SCA. No other alternatives meet the statutory requirements, and so none were considered.

          List of Subjects in 50 CFR Part 600
          Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics.

          Dated: April 26, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 600 as follows:

          PART 600-MAGNUSON-STEVENS ACT PROVISIONS

        1. The authority citation for part 600 continues to read as follows:

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

        2. Subpart N is revised to read as follows:

            Subpart N—Shark Fin Removal, Possession, Transfer and Landing
            Sec.
            600.1200
             Purpose and scope.
            600.1201
             Relation to other laws.
            600.1202
             Definitions.
            600.1203
             Prohibitions.

          Subpart N—Shark Fin Removal, Possession, Transfer and Landing

            § 600.1200
            Purpose and scope.
            The regulations in this subpart implement the Shark Conservation Act of 2010.

            § 600.1201
            Relation to other laws.
            (a) Regulations pertaining to conservation and management (including record keeping and reporting) for certain shark fisheries are also set forth in parts 635 (for Federal Atlantic Ocean, Gulf of Mexico, and Caribbean shark fisheries), 648 (for spiny dogfish fisheries), 660 (for fisheries off West Coast states), and 665 (for fisheries in the western Pacific) of this chapter.

            (b)(1) This subpart does not apply to an individual engaged in commercial fishing for smooth dogfish (Mustelus canis) in that area of the waters of the United States located shoreward of a line drawn in such a manner that each point on it is 50 nautical miles from the baseline of a State from which the territorial sea is measured, if the individual holds a valid State commercial fishing license, unless the total weight of smooth dogfish fins landed or found on board a vessel to which this subsection applies exceeds 12 percent of the total weight of smooth dogfish carcasses landed or found on board.
            (2) State, for the purpose of paragraph (b)(1) of this section, means Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, the District of Columbia, or the Potomac River Fisheries Commission.
            (c) This subpart does not supersede state laws or regulations governing conservation and management of state shark fisheries in state waters.
            (d) State and territorial statutes that address shark fins are preempted if they are inconsistent with the Magnuson-Stevens Act as amended by the Shark Conservation Act of 2010, regulations under this part, and applicable federal fishery management plans and regulations.

            § 600.1202
            Definitions.
            (a) In addition to the definitions in the Magnuson-Stevens Act and in § 600.10, the terms used in this subpart have the following meanings:

              Fin means any of the fins of a shark (including the tail) or a portion thereof.

              Land or landing means offloading fish, or causing fish to be offloaded, from a fishing vessel, either to another vessel or to a shore side location or facility, or arriving in port, or at a dock, berth, beach, seawall, or ramp to begin offloading fish.

              Naturally attached, with respect to a shark fin, means attached to the corresponding shark carcass through some portion of uncut skin.
            (b) If there is any difference between a definition in this section and in § 600.10, the definition in this section is the operative definition for the purposes of this subpart.

            § 600.1203
            Prohibitions.

            (a) It is unlawful for any person to do, or attempt to do, any of the following:

            (1) Remove a fin at sea.
            (2) To have custody, control, or possession of a fin, aboard a fishing vessel, unless the fin is naturally attached.
            (3) Transfer a fin from one vessel to another vessel at sea unless the fin is naturally attached.
            (4) Receive a fin in a transfer from one vessel to another vessel at sea unless the fin is naturally attached.
            (5) Land a fin unless the fin is naturally attached.
            (6) Land a shark carcass without all of its fins naturally attached.
            (7) Possess, purchase, offer to sell, or sell fins or shark carcasses taken, transferred, landed, or possessed in violation of this section.
            (8) When requested, fail to allow an authorized officer or any employee of NMFS designated by a Regional Administrator, or by the Director of the Office of Sustainable Fisheries in the case of the Atlantic Highly Migratory Species, access to or inspection or copying of any records pertaining to the landing, sale, transfer, purchase, or other disposition of fins or shark carcasses.
            (b) For purposes of this section, it is a rebuttable presumption that:
            (1) If a fin is found aboard a vessel, other than a fishing vessel, without being naturally attached, such fin was transferred in violation of this section.
            (2) If, after landing, the total weight of fins landed from any vessel exceeds five percent of the total weight of shark carcasses landed, such fins were taken, held, or landed in violation of this section.

      [FR Doc. 2013-10439 Filed 5-1-13; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF DEFENSE
        Defense Acquisition Regulations System
        48 CFR Part 245
        Defense Federal Acquisition Regulation Supplement; Responsibility and Liability for Government Property (DFARS Case 2010-D018)

          AGENCY:
          Defense Acquisition Regulations System, Department of Defense (DoD).

          ACTION:
          Proposed rule.

          SUMMARY:
          DoD is issuing a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to extend the Government self-insurance policy to Government property provided under negotiated fixed-price contracts that are awarded on a basis other than submission of certified cost or pricing data.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before June 20, 2011, to be considered in the formation of the final rule.

          ADDRESSES:
          You may submit comments, identified by DFARS Case 2010-D018, using any of the following methods:
          ○ Regulations.gov:
            http://www.regulations.gov.

          Submit comments via the Federal eRulemaking portal by inputting “DFARS Case 2010-D018” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2010-D018.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2010-D018” on your attached document.
          ○ E-mail:
            dfars@osd.mil. Include DFARS Case 2010-D018 in the subject line of the message.
          ○ FAX: 703-602-0350.
          ○ Mail: Defense Acquisition Regulations System, Attn: Mrs. Jennifer Abi-Najm, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

          Comments received generally will be posted without change to http://regulations.gov, including any personal information provided. To confirm receipt of your comment, please check http://www.regulations.gov approximately two to three days after submission to verify posting, except allow 30 days for posting of comments submitted by mail.

          FOR FURTHER INFORMATION CONTACT:
          Mrs. Jennifer Abi-Najm, 703-602-1013.

        SUPPLEMENTARY INFORMATION:
        I. Background
        This proposed rule will amend the DFARS to extend the Federal Acquisition Regulation (FAR) Government self-insurance policy for loss of Government property to negotiated fixed-price contracts awarded on a basis other than submission of certified cost or pricing data. FAR 45.104, Responsibility and liability for Government property, provides that contractors are not held liable for loss of Government property occurring under the following types of contracts:
        (1) Cost-reimbursement contracts.
        (2) Time-and-materials contracts.
        (3) Labor-hour contracts.
        (4) Fixed-price contracts awarded on the basis of submission of certified cost or pricing data.
        An exception to the FAR 45.104 policy for Government assumption of risk of loss is for negotiated fixed-price contracts awarded on a basis other than submission of certified cost or pricing data. This rule proposes that DoD contractors not be held liable for loss of Government property under such contracts, and eliminates the use of Alternate I of the FAR clause at 52.245-1, Government Property. Use of Alternate I requires contractors to assume the risk and be responsible for loss of Government property.
        II. Executive Order 12866 and Executive Order 13563
        Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        III. Regulatory Flexibility Act

        DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows:

        The objective of this rule is to add negotiated fixed-priced contracts, awarded on a basis other than submission of certified cost or pricing data, to the list of contracts for which the Government is self-insuring and assumes risk of loss for Government property provided under such contracts. The basic premise of this case, that the Government should be self-insuring under contracts that provide Government property, is supported by the Government Accountability Office (GAO) policy contained in GAO publication, GAO-04-261SP Appropriations Law, and its decisions.
        The Government generally self-insures against contractor loss of Government property acquired or provided under most negotiated Government contracts. An exception to this policy at FAR 45.104 is for negotiated fixed-price contracts awarded on a basis other than submission of certified cost or pricing data. For those contracts, the contractor is liable for loss of Government property (except for reasonable fair wear and tear) invoked by use of FAR clause 52.245-1, Government Property, with its Alternate I.
        DoD has approximately 3,000 contractors with contracts that authorize furnishing some form of Government contract property. The majority of property (over 80 percent in terms of original acquisition value) is accountable to large businesses, with the remainder accountable to small entities.
        Any impact of this rule on small entities is expected to be beneficial. Large businesses with substantial cash reserves may be in a financial position that enables those firms to select a high insurance deductible in order to garner lower premiums by electing to become self-insuring for potential property loss up to the level of the deductible. Small entities may not have the financial capacity or capability to select a high insurance deductible in order to be self-insuring up to the higher thresholds. The effect of small entities not being able to select higher deductible thresholds may be to incur higher insurance premiums, which might negatively impact their ability to compete. The Government assuming the liability for loss of Government property under negotiated fixed-price contracts awarded on a basis other than submission of certified cost or pricing data should provide some relief for the small entities concerning costs to acquire insurance against risk of loss.
        DoD invites comments from small businesses and other interested parties on the expected impact of this rule on small entities.
        DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2010-D018), in correspondence.
        IV. Paperwork Reduction Act
        This rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

          List of Subjects in 48 CFR Part 245
          Government procurement.

          Ynette R. Shelkin,
          Editor, Defense Acquisition Regulations System.

        Therefore, 48 CFR part 245 is proposed to be amended as follows:

          PART 245-GOVERNMENT PROPERTY
          1. The authority citation for 48 CFR part 245 continues to read as follows:

            Authority:
             41 U.S.C. 1303 and 48 CFR chapter 1.

          2. Section 245.104 is added to subpart 245.1 to read as follows:

            245.104
            Responsibility and liability for Government property.
            (a) In addition to the contract types listed at FAR 45.104, contractors are not held liable for loss of Government property under negotiated fixed-price contracts awarded on a basis other than submission of certified cost or pricing data.
            3. Section 245.107 is revised to read as follows:

            245.107
            Contract clauses.
            (1) Use the clause at 252.245-7000, Government-Furnished Mapping, Charting, and Geodesy Property, in solicitations and contracts when mapping, charting, and geodesy property is to be furnished.
            (2) Use the clause at 252.245-7001, Tagging, Labeling, and Marking of Government-Furnished Property, in solicitations and contracts that contain the clause at FAR 52.245-1, Government Property.
            (3) Use the clause at 252.245-7002, Reporting Loss of Government Property, in solicitations and contracts that contain the clause at FAR 52.245-1, Government Property.
            (4) For negotiated fixed-price contracts awarded on a basis other than submission of certified cost or pricing data for which Government property is provided, use the clause at FAR 52.245-1, Government Property, without its Alternate I.

      [FR Doc. 2011-8958 Filed 4-18-11; 8:45 am]
      BILLING CODE 5001-08-P


        DEPARTMENT OF TRANSPORTATION
        Federal Aviation Administration
        14 CFR Part 39
        [Docket No. FAA-2007-27230; Directorate Identifier 2007-NE-04-AD]
        RIN 2120-AA64
        Airworthiness Directives; Pratt & Whitney (PW) PW4164, PW4168, and PW4168A Turbofan Engines

          AGENCY:
          Federal Aviation Administration (FAA), Department of Transportation (DOT).

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:
          The FAA proposes to adopt a new airworthiness directive (AD) for PW PW4164, PW4168, and PW4168A turbofan engines with certain low pressure turbine (LPT) stage 4 disks, part number (P/N) 51N404, installed. This proposed AD would require removing certain LPT stage 4 disks, listed by serial number at the next piece-part exposure or within 7,500 cycles-since-new (CSN), whichever occurs first. This proposed AD results from a report of improperly manufactured LPT stage 4 disks. We are proposing this AD to prevent an uncontained engine failure due to low-cycle fatigue (LCF), which could result in damage to the airplane.

          DATES:
          We must receive any comments on this proposed AD by July 20, 2007.

          ADDRESSES:
          Use one of the following addresses to comment on this proposed AD.
          • DOT Docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically.
          • Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
          • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
          • Fax: (202) 493-2251.
          • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

          You may examine the comments on this proposed AD in the AD docket on the Internet at http://dms.dot.gov.

          FOR FURTHER INFORMATION CONTACT:
          V. Rose Len, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone (781) 238-7772; fax (781) 238-7199.

        SUPPLEMENTARY INFORMATION:
        Comments Invited

        We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2007-27230; Directorate Identifier 2007-NE-04-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.
        We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the DOT Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.
        Examining the AD Docket

        You may examine the docket that contains the proposal, any comments received and, any final disposition in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the Docket Management Facility receives them.
        Discussion
        On September 29, 2006, we received a report of 16 LPT stage 4 disks, P/N 51N404, manufactured with an improper material process. The disks were not properly heat treated during the manufacturing process. The manufacturer solution-heat treated the disks for one hour instead of the four hours required. We believe this manufacturing discrepancy will result in reduced LCF properties for the disks. Operating the affected disks to the certified life limit could result in uncontained failure of the disk due to LCF. Although we have received no reports of disk separations, this condition, if not corrected, could result in the disk separating from the engine due to LCF, which could result in damage to the airplane.
        FAA's Determination and Requirements of the Proposed AD
        We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require removing certain LPT stage 4 disks, P/N 51N404, listed by serial number in the proposed AD, at the next piece-part exposure, or within 7,500 CSN, whichever occurs first.
        Costs of Compliance
        We estimate that this proposed AD would affect 11 engines installed on airplanes of U.S. registry. We also estimate that it would take about 250 work-hours per engine to perform the proposed action, if not done at piece-part exposure, and that the average labor rate is $80 per work-hour. Required parts would cost about $186,288 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $2,269,168.
        Authority for This Rulemaking
        Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
        We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
        Regulatory Findings
        We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
        For the reasons discussed above, I certify that the proposed AD:
        1. Is not a “significant regulatory action” under Executive Order 12866;
        2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
        3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

        We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. You may get a copy of this summary at the address listed under ADDRESSES.

          List of Subjects in 14 CFR Part 39
          Air transportation, Aircraft, Aviation safety, Safety.

        The Proposed Amendment
        Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows:

          PART 39—AIRWORTHINESS DIRECTIVES
          1. The authority citation for part 39 continues to read as follows:

            Authority:
            49 U.S.C. 106(g), 40113, 44701.

            § 39.13
            [Amended]
            2. The FAA amends § 39.13 by adding the following new airworthiness directive:

                Pratt & Whitney: Docket No. FAA-2007-27230; Directorate Identifier 2007-NE-04-AD.
              Comments Due Date
              (a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by July 20, 2007.
              Affected ADs
              (b) None.
              Applicability
              (c) This AD applies to Pratt & Whitney PW4164, PW4168, and PW4168A turbofan engines with certain low pressure turbine (LPT) stage 4 disks, part number (P/N) 51N404, that have a serial number listed in the following Table 1 of this AD installed. These engines are installed on, but not limited to, Airbus A330-200 and A330-300 series airplanes.

                Table 1.—Affected LPT Stage 4 Disks by Serial Number

                  LPT stage 4 disk serial numbers

                  CLDLC01142

                  CLDLC01143

                  CLDLC01144

                  CLDLC01145

                  CLDLC01146

                  CLDLC01148

                  CLDLC01149

                  CLDLC01150

                  CLDLC01151

                  CLDLC01152

                  CLDLC01181

                  CLDLC01182

                  CLDLC01183

                  CLDLC01185

                  CLDLC01186

                  CLDLC01187

              Unsafe Condition
              (d) This AD results from a report of improperly manufactured LPT stage 4 disks. We are issuing this AD to prevent an uncontained engine failure due to low-cycle fatigue, which could result in damage to the airplane.
              Compliance
              (e) You are responsible for having the actions required by this AD performed at the next piece-part exposure after the effective date of this AD or within 7,500 cycles-since-new, unless the actions have already been done.
              Removing the LPT Stage 4 Disk
              (f) Remove from service any LPT stage 4 disk that has a serial number listed in Table 1 of this AD.
              Prohibition Against Installing an Affected Disk
              (g) After the effective date of this AD, do not install any disk, P/N 51N404, that has a serial number listed in Table 1 of this AD or any disk removed as specified in paragraph (f) of this AD except as allowed by paragraph (h) of this AD.
              Alternative Methods of Compliance
              (h) The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
              Special Flight Permits
              (i) Under 14 CFR part 39.23, we are prohibiting the special flight permits for this AD.
              Related Information
              (j) None.

            Issued in Burlington, Massachusetts, on May 11, 2007.
            Peter A. White,
            Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service.

      [FR Doc. E7-9697 Filed 5-18-07; 8:45 am]
      BILLING CODE 4910-13-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 130808697-5999-01]
        RIN 0648-XC808
        Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Multi-Year Specifications for Monitored and Prohibited Harvest Species Stock Categories

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

          ACTION:
          Proposed rule.

          SUMMARY:

          NMFS proposes to implement annual catch limits (ACL) and, where necessary, other annual reference points (overfishing limits (OFL) and acceptable biological catches (ABC)) for certain stocks in the monitored and prohibited harvest species categories under the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed ACLs are: Jack mackerel, 31,000 metric tons (mt); northern subpopulation of northern anchovy, 9,750 mt; central subpopulation of northern anchovy, 25,000 mt; and krill, zero. Additionally, an OFL of 39,000 mt, an ABC of 9,750 mt and an annual catch target (ACT) of 1,500 mt is being proposed for the northern subpopulation of northern anchovy. This rule is intended to conserve and manage these stocks off the U.S. West Coast. If the ACL for any one of these stocks is reached, then fishing for that stock will be closed until it reopens at the start of the next fishing season.

          DATES:
          Comments must be received by December 21, 2015.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2013-0145, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0145, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Joshua Lindsay.
          • Instructions: Comments must be submitted by one of the above methods to ensure that the comments 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).

          FOR FURTHER INFORMATION CONTACT:
          Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.

        SUPPLEMENTARY INFORMATION:

        The CPS fishery in the U.S. exclusive economic zone (EEZ) off the West Coast is managed under the CPS FMP, which was developed by the Pacific Fishery Management Council (Pacific Council) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq. The six species managed under the CPS FMP are Pacific sardine, Pacific mackerel, jack mackerel, northern anchovy (northern and central subpopulations), market squid and krill. The CPS FMP is implemented by regulations at 50 CFR part 660, subpart I.
        Management unit stocks in the CPS FMP are classified under three management categories: Actively managed; monitored; and prohibited harvest species. Active stocks are characterized by periodic stock assessments, and/or periodic or annual adjustments of target harvest levels. Management of monitored stocks, in contrast, generally involves tracking landings against the relevant ACL (previously the ABCs) and qualitative comparison to available abundance data, but without regular stock assessments or annual adjustments to target harvest levels. Species in both categories may be subject to management measures such as catch allocation, gear regulations, closed areas, closed seasons, or other forms of “active” management. For example, trip limits and a limited entry permit program are already in place for all CPS finfish. The monitored category includes jack mackerel, two sub-populations of northern anchovy stock and market squid. Krill is the only stock in the prohibited harvest category. The monitored stocks have not been managed to a hard quota like the active category stocks by NMFS (although the state of California manages market squid with an annual limit). Instead, landings have been monitored against harvest reference levels to determine if overfishing is occurring and to gauge the need for more active management such as requiring periodic stock assessments and regular adjustments to a quota. Catches of the three finfish stocks in the monitored category—northern anchovy (northern and central subpopulations) and jack mackerel— have remained well below their respective ABC (now proposed ACL levels for jack mackerel and the central anchovy population) since implementation of the CPS FMP in 2000, with average catches over the last 10 years of approximately 7,300 mt, 270 mt and 660 mt for the central and northern subpopulations of northern anchovy and jack mackerel, respectively.

        In September 2011, NMFS approved Amendment 13 to the CPS FMP, which modified the framework process used to set and adjust fishery specifications and for setting ACLs and accountability measures (AMs); Amendment 13 was intended to ensure the FMP conforms with the 2007 amendments to the MSA and NMFS' revised MSA National Standard 1 guidelines at 50 CFR part 600. Specifically, Amendment 13 maintained the existing reference points and the primary harvest control rules for the monitored stocks (jack mackerel, northern anchovy and market squid), including the large buffer built into the ABC control rule for the finfish stocks, as well as the overfishing criteria for market squid, but modified these reference points and control rules to align with the revised advisory guidelines and to comply with the new statutory requirement to establish a process for setting ACLs and AMs. This included a default management framework under which the OFL for each monitored stock was set equal to the maximum sustainable yield (MSY) value and ABC was reduced from the OFL by 75 percent as an uncertainty buffer (based on the existing ABC control rule where ABC equals 25 percent of OFL/MSY). This default framework is used unless there is determined to be a more appropriate OFL, as is the case for the northern subpopulation of northern anchovy, or stock specific ABC control rule like the proxy for the Fishing rate that is expected to result in maximum sustainable yield (FMSY proxy) for market squid of Egg Escapement ≥ 30 percent. ACLs are then set equal to the ABC or could be set lower than the ABC, along with annual catch targets (ACTs), if deemed necessary. These control rules and harvest policies for monitored CPS stocks are simpler and more precautionary than those used for actively managed stocks in recognition of the low fishing effort and low landings for these stocks, as well as the lack of current estimates of stock biomass.

        Through this action, NMFS proposes to implement the ACLs shown in Table 1 below for jack mackerel, the two subpopulations of northern anchovy, and krill, as well an OFL, ABC and ACT for the northern subpopulation of northern anchovy.

          Table 1—Proposed ACLs for Monitored CPS Finfish, Including Proposed OFL, ABC, and ACT for the Northern Subpopulation of Northern Anchovy

            Stock
            OFL
            ABC
            ACL
            ACT

            Jack mackerel
            126,000 mt
            31,000 mt
            31,000 mt

            Northern anchovy, (northern subpopulation)
            39,000 mt
            9,750 mt
            9,750 mt
            1,500 mt.

            Northern anchovy, (central subpopulation)
            100,000 mt
            25,000 mt
            25,000 mt

            Market squid
            FMSY proxy resulting in Egg Escapement ≥ 30%
            FMSY proxy resulting in Egg Escapement ≥ 30%
            ACL not required (Less than 1-year lifecycle and no overfishing)

            Krill
            Undefined
            Undefined
            0

        The OFLs and ABCs listed in Table 1 for jack mackerel, the central subpopulation of northern anchovy, market squid and krill are included for information purposes only. The OFL and ABC specifications for those stocks are set in the FMP; NMFS does not propose to establish or revise them by this proposed rule.
        These proposed catch levels and reference points were recommended to NMFS by the Pacific Council and were based on recommendations from its advisory bodies according to the framework in the FMP established through Amendment 13, including OFL and ABC recommendations from its Science and Statistical Committee (SSC). The proposed ACLs for these monitored stocks would be in place for the calendar year fishing season (January 1-December 31), and would remain in place for each subsequent calendar year until new scientific information becomes available to warrant changing them, or if landings increase and consistently reach the ABC/ACL level and it necessitates a change to active management under the FMP. These management benchmarks provide a means to monitor these stocks on an annual basis. Each year, the total harvest of each stock will be assessed against the ACL until such time as the Pacific Council chooses to reassess the management of these stocks, new scientific information regarding these stocks becomes available, or harvest approaches or exceeds the ACL. These benchmarks implicitly include a postseason AM; harvest levels are monitored annually to assess whether a stock should become actively managed.

        Per the framework that was established through Amendment 13, the OFLs for the central subpopulation of northern anchovy and jack mackerel are set based on MSY values that were established through Amendment 8 to the FMP. In 2015, Amendment 14 to the CPS FMP established an FMSY of 0.3 as the MSY reference point for the northern subpopulation of northern anchovy in the CPS FMP. However, because the framework in the FMP for setting ABCs is based on applying a percentage to numerical MSY/OFLs, it was necessary to determine a numerical OFL value through the specifications process. Because the northern subpopulation of the northern anchovy is currently lightly fished and effort has been inconsistent over time, it was determined that using a catch time series as a way of setting the OFL was not appropriate as it likely was an unreliable indicator of stock status. Therefore, the best available scientific information on the population and biology of northern subpopulation northern anchovy was compiled to develop an OFL. The available information included two separate estimates of biomass; the average of these two estimates was approximately 130,000 mt. After reviewing this information, the SSC recommended that the OFL be set by multiplying the average of these two biomass estimates (130,000 mt), by an FMSY 0.3, which is also the FMSY value for Pacific mackerel. This is appropriate because, biologically, anchovy populations are likely to be as or more productive than Pacific mackerel. This calculation results in an OFL of 39,000 mt and with the established uncertainty buffer of 75 percent, an ABC of 9,750 mt. Although the proposed ACL for this stock is equal to the ABC, to further account for uncertainty surrounding the reference points for this stock, anchovy's role as forage, and because annual catch levels have been sustainably below the ACL, the Pacific Council recommended, and NMFS is proposing, an ACT of 1,500 mt.
        Market squid, because of its short life-cycle, falls under the statutory exception from the requirement to set ACLs and AMs. Section 303(a)(15) of the MSA states that the requirement for ACLs “shall not apply to a fishery for species that has a life cycle of approximately 1 year unless the Secretary has determined the fishery is subject to overfishing of that species.” Market squid have a lifecycle of less than 1 year and have not been determined to be subject to overfishing; therefore, an ACL is not required and is not being proposed for market squid.
        NMFS is not proposing to establish or change specifications for krill by this rulemaking. Krill are a prohibited harvest species. The targeting, harvesting and transshipment of krill are all explicitly prohibited; therefore, the ACL for krill is zero. Because the harvest level is zero, setting an OFL or ABC for krill would serve no function and is not being proposed in this rule.

        If the proposed ACL and/or ACT levels are reached, or are expected to be reached, for one of these fisheries, the directed fishery would be closed until the beginning of the next fishing season. The NMFS West Coast Regional Administrator would publish a notice in the Federal Register announcing the date of any such closure. Additionally, nearing or exceeding one of these ACLs or the ACT would trigger a review of whether the fishery should be moved into the actively managed category of the FMP.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.
        These proposed specifications are exempt from review 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, for the following reasons:

        The primary action being implemented through this rule as it relates to potential economic impacts on small entities is the establishment of multi-year ACLs for the two sub-stocks of northern anchovy and for jack mackerel in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set ACLs for these fisheries based on the harvest control rules in the FMP.
        On June 12, 2014, the SBA issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647). The rule increased the size standard for Finfish Fishing from $19.0 to 20.5 million, Shellfish Fishing from $5.0 to 5.5 million, and Other Marine Fishing from $7.0 to 7.5 million. 79 FR 33650, 33656 (June 12, 2014). NMFS conducted its analysis for this action in light of the new size standards.
        The entities that would be affected by the proposed action are the vessels that harvest jack mackerel and northern anchovy as part of the West Coast CPS purse seine fleet. Jack mackerel and northern anchovy are components of the CPS purse seine fishery off the U.S. West Coast, which generally fishes a complex of species, including Pacific sardine, Pacific mackerel and market squid. Currently there are 58 vessels permitted in the Federal CPS limited entry fishery off California. Annually 28 to 45 (average 39) of these CPS vessels landed anchovy and jack mackerel over the last five years. Approximately 26 baitfish licenses are issued annually in the state of Washington to harvest northern anchovy. Since 2009, the state of Oregon has not required a permit to harvest anchovy in Oregon waters. Jack mackerel is currently not fished in Oregon and Washington.
        The average annual per vessel revenue in 2013 for the West Coast CPS finfish small purse seine fleet, as well as the few vessels that target anchovy off of Oregon and Washington, was below $20.5 million; therefore, all of these vessels are considered small businesses under the SBA size standards. Because each affected vessel is a small business, this proposed rule has an equal effect on all of these small entities, and therefore will impact a substantial number of these small entities in the same manner. The corresponding annual revenues from these species averaged to about $60,000 and $653,000, for jack mackerel and anchovy respectively.
        To evaluate whether this proposed rule could potentially reduce the profitability of the affected vessels, NMFS compared current and average recent historical landings to the proposed ACLs. The proposed multi-year ACL (maximum fishing level for each year) for the northern anchovy central subpopulation is 25,000 mt and the proposed northern subpopulation ACL is 9,750 mt. In 2014, 10,511 mt of the northern anchovy central subpopulation and 112 mt of northern anchovy northern subpopulation were landed. The annual average harvest from 2004 to 2014 for the central and northern subpopulations of northern anchovy is 7,300 mt and 270 mt, respectively. The proposed jack mackerel ACL is 31,000 mt. In 2014, approximately 1,800 mt of jack mackerel were landed and average annual landings of jack mackerel over the last ten years is 549 mt. Prior landings of these stocks have been well below the proposed ACLs. Therefore, although the establishment of ACLs for these stocks is considered a new management measure for these fisheries, based on current and historical landings of these stocks, this proposed action will not result in changes in current fishery operations. As a result, it is unlikely that the ACLs proposed in this rule will limit the profitability of the fleets catching these stocks and thus would not impose a significant economic impact.
        The economic impact to the fleet from the proposed action cannot be viewed in isolation. CPS finfish vessels typically harvest a number of other species, including Pacific sardine, Pacific mackerel, squid, and tuna, making these fisheries only components of a multi-species CPS fishery. Vessels rely on multiple species for profitability because each CPS stock is highly associated with different ocean conditions and different time periods, and so are harvested at various times throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore as abundance levels and markets fluctuate, the CPS fishery as a whole relies on a group of species for annual revenues. Accordingly, even if the revenue derived from the specific e fisheries addressed in this proposed rule decline, such a decline will have only a small impact, if at all, on the profits of CPS fishery vessels.
        Pursuant to the Regulatory Flexibility Act and the SBA's June 20, 2013 and June 12, 2014 final rules (78 FR 37398 and 79 FR 33647, respectively), this certification was developed for this action using the SBA's revised size standards. All entities subject to this action are small entities as defined by both the former, lower size standards and the revised size standards. Because each affected vessel is a small business, this proposed action is considered to equally affect all of these small entities in the same manner. Based on the disproportionality and profitability analysis above, the proposed action, if adopted, will not have adverse or disproportional economic impact on these small business entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
        There are no reporting, recordkeeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.

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

          Dated: November 17, 2015.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2015-29684 Filed 11-19-15; 8:45 am]
      BILLING CODE 3510-22-P