80_FR_56613 80 FR 56432 - Establish a Single Small Business Size Standard for Commercial Fishing Businesses

80 FR 56432 - Establish a Single Small Business Size Standard for Commercial Fishing Businesses

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 181 (September 18, 2015)

Page Range56432-56436
FR Document2015-23375

NMFS proposes to establish a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411), for Regulatory Flexibility Act (RFA) compliance purposes only. The proposed $11 million standard would be used in RFA analyses in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry, respectively. Establishing a single size standard of $11 million for the commercial fishing industry would simplify the RFA analyses done in support of NMFS' rules, better meet the RFA's intent by more accurately representing expected disproportionate effects of NMFS' rules between small and large businesses, create a standard that more accurately reflects the size distribution of all businesses in the commercial fishing industry, and allow NMFS to determine when changes to the standard are necessary and appropriate.

Federal Register, Volume 80 Issue 181 (Friday, September 18, 2015)
[Federal Register Volume 80, Number 181 (Friday, September 18, 2015)]
[Proposed Rules]
[Pages 56432-56436]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-23375]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 200

[Docket No. 150227193-5193-01]
RIN 0648-BE92


Establish a Single Small Business Size Standard for Commercial 
Fishing Businesses

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

ACTION: Proposed rule; request for comment.

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SUMMARY: NMFS proposes to establish a small business size standard of 
$11 million in annual gross receipts for all businesses in the 
commercial fishing industry (NAICS 11411), for Regulatory Flexibility 
Act (RFA) compliance purposes only. The proposed $11 million standard 
would be used in RFA analyses in place of the U.S. Small Business 
Administration's (SBA) current standards of $20.5 million, $5.5 
million, and $7.5 million for the finfish (NAICS 114111), shellfish 
(NAICS 114112), and other marine fishing (NAICS 114119) sectors of the 
U.S. commercial fishing industry, respectively. Establishing a single 
size standard of $11 million for the commercial fishing industry would 
simplify the RFA analyses done in support of NMFS' rules, better meet 
the RFA's intent by more accurately representing expected 
disproportionate effects of NMFS' rules between small and large 
businesses, create a standard that more accurately reflects the size 
distribution of all businesses in the commercial fishing industry, and 
allow NMFS to determine when changes to the standard are necessary and 
appropriate.

DATES: Comments must be received by October 19, 2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2015-0061, 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-2015-0061, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Send written comments to Mike Travis, NOAA Fisheries 
Service,

[[Page 56433]]

Southeast Regional Office, 263 13th Ave. S., 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, etc.), 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), and will accept attachments to electronic comments in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Mike Travis, Industry Economist, at 
(727) 209-5982.

SUPPLEMENTARY INFORMATION:

Background

    Prior to 2013, SBA had set the small business size standard for all 
sectors of the commercial fishing industry at the same amount. Since 
2005, this standard had been $4 million in annual gross receipts 
(revenues). Effective July 22, 2013, SBA established significantly 
different and higher size standards for the three separate sectors of 
the industry (78 FR 37398, June 20, 2013): $19 million for commercial 
finfish fishing businesses (NAICS 114111), $5.0 million for commercial 
shellfish fishing businesses (NAICS 114112), and $7.0 million for other 
commercial marine fishing businesses (NAICS 114119). These standards 
were subsequently adjusted for inflation to $20.5 million, $5.5 
million, and $7.5 million, respectively, via an interim final rule, 
effective July 14, 2014 (79 FR 33647, June 12, 2014). The Small 
Business Jobs Act of 2010 requires SBA to review all size standards 
every five years to account for changes in industry structure and 
market conditions. SBA is also required to assess the impact of 
inflation on its monetary-based size standards at least once every five 
years (13 CFR 121.102). However, as reflected by the timing of the two 
recent rulemakings adjusting the size standards, SBA is not required to 
conduct the reviews for these two purposes simultaneously. Thus, these 
size standards are likely to change on a regular basis.
    Under the RFA, an agency must prepare an initial and final 
regulatory flexibility analysis (IRFA/FRFA) for each proposed and final 
rule, respectively, unless it certifies that a rule will not have a 
significant economic impact on a substantial number of small entities. 
Agencies generally rely on the SBA size standards to identify small 
entities for RFA purposes. For NMFS, rulemaking activities that have 
been impacted by changes to the size standards for defining ``small'' 
businesses include, but are not limited to, regulatory actions and 
analyses undertaken pursuant to the Magnuson-Stevens Act (MSA), 
Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and 
National Environmental Policy Act (NEPA). Between 2012 and 2014, NMFS 
published an average of 285 final rules per year, more than 40 percent 
of which required an RFA analysis, and a majority of those directly 
regulated commercial fishing businesses. Thus, NMFS' costs of complying 
with the RFA are significant even when the small business size 
standards are stable, and those costs increase substantially when the 
standards are changing on a recurring basis.
    NMFS and the Regional Fishery Management Councils (Councils) have 
encountered significant difficulties implementing and adjusting to the 
new standards because: (1) The change was from a single size standard 
for all commercial fishing businesses to three very different 
standards, (2) many commercial fishing businesses participate in both 
finfish and shellfish fishing activities, making it unclear which 
standard to apply in the RFA analyses, and (3) a number of rules 
simultaneously implement regulations under fishery management plans for 
both finfish and shellfish species (for e.g., 76 FR 82044, December 29, 
2011; 76 FR 82414, December 30, 2011; 77 FR 15916, March 26, 2012; and 
80 FR 41472, July 15, 2015), again making it unclear which standard to 
apply in the RFA analyses.
    Furthermore, one of the RFA's primary purposes is to determine if 
proposed regulations are expected to have disproportionate economic 
impacts on small businesses relative to large businesses and, if so, to 
consider alternatives that would minimize any significant adverse 
economic impacts on small businesses. Under SBA's current standards for 
commercial fishing businesses, practically all commercial fishing 
businesses, and particularly commercial finfish fishing businesses, 
would likely be determined to be small. Thus, in their RFA analyses, 
NMFS and the Councils would not be able to discern, consider, or 
address any disproportionate economic impacts that various regulatory 
alternatives might have on businesses NMFS and the Councils think are 
``small'' in the commercial fishing industry. Such an outcome 
effectively precludes NMFS from fulfilling one of the RFA's primary 
purposes and thus is not desirable.
    Section 601(3) of the RFA provides that an agency, after 
consultation with SBA's Office of Advocacy and after an opportunity for 
public comment, may establish one or more definitions of ``small 
business'' which are appropriate to the activities of the agency and 
publish such definition(s) in the Federal Register. Further, 13 CFR 
121.903(c) states that ``where the agency head is developing a size 
standard for the sole purpose of performing a Regulatory Flexibility 
Analysis pursuant to section 601(3) of the Regulatory Flexibility Act, 
the department or agency may, after consultation with the SBA Office of 
Advocacy, establish a size standard different from SBA's which is more 
appropriate for such analysis.'' NMFS and the Department of Commerce 
General Counsel's Office had preliminary discussions with SBA's Office 
of Advocacy about these provisions, and SBA was supportive of NMFS 
using RFA section 601(3) and 13 CFR 121.903(c) to establish its own 
size standard for the commercial fishing industry for purposes of RFA 
analyses only.
    SBA has also previously expressed support for the idea of creating 
a single size standard in instances where industries are closely 
related, as is the case for the commercial finfish and shellfish 
fishing industries. In its proposed rule to change the size standard 
for businesses in manufacturing industries (79 FR 54146, Sept. 10, 
2014), SBA stated: ``To simplify size standards and for other reasons, 
SBA may propose a common size standard for closely related industries. 
Although the size standard analysis may support a separate size 
standard for each industry, SBA believes that establishing different 
size standards for closely related industries may not always be 
appropriate. For example, in cases where many of the same businesses 
operate in the same multiple industries, a common size standard for 
those industries might better reflect the Federal marketplace. This 
might also make size standards among related industries more consistent 
than separate size standards for each of those industries.'' (79 FR 
54146, 54150, Sept. 10, 2014).
    NMFS has determined that the data used by SBA's Office of Size 
Standards to develop the new standards are incomplete and, as a result, 
not

[[Page 56434]]

representative of all commercial fishing businesses. Specifically, the 
data used by SBA only account for commercial fishing businesses that 
have employees (i.e., employer firms), and thus do not include 
commercial fishing businesses that do not have employees (i.e., non-
employer firms). Non-employer commercial fishing businesses typically 
pay their self-employed crew a percentage of the gross or net revenue 
on each commercial fishing trip rather than a standard wage or salary, 
and thus self-employed crew are not considered employees. Commercial 
fishing businesses with employees represent only about 3 percent of all 
commercial fishing businesses, while the other 97 percent are non-
employer firms.
    Further, according to SBA, annual gross revenues for finfish and 
shellfish commercial fishing businesses with employees average $1.6 and 
$0.6 million, respectively. Conversely, NMFS determined the annual 
gross revenues for commercial fishing businesses without employees is 
only about $44,000 on average. Thus, NMFS concluded the exclusion of 
commercial fishing businesses without employees is primarily 
responsible for the magnitude of the size standard increases, 
particularly for finfish fishing businesses, and the standards would 
have been very different if SBA had used data for all commercial 
fishing businesses. Because the size standards apply to all commercial 
fishing businesses, not just those with employees, when used to analyze 
the economic impacts of management actions on directly regulated 
entities under the RFA, NMFS thinks it is more appropriate to have size 
standards for RFA purposes that are based on all commercial fishing 
businesses.
    In conjunction with its recent review of size standards, SBA 
developed a ``Size Standards Methodology'' for establishing, reviewing, 
and modifying size standards, where necessary. SBA included it as a 
supporting document in the electronic docket of the September 11, 2012, 
proposed rule to change the size standards for the three sectors of the 
commercial fishing industry (77 FR 55755) at www.regulations.gov. 
Application of this new methodology resulted in the significantly 
different size standards for the three separate sectors of the 
industry. NMFS referenced this document in developing the proposed size 
standard in this proposed rule. Consistent with that methodology, SBA 
used the following industry factors to establish the current size 
standards for NAICS Sector 11 (Agriculture, Forestry, Fishing, and 
Hunting): Average firm size, as measured by simple average receipts and 
weighted average receipts; average assets size; the four-firm 
concentration ratio (i.e., the percentage of receipts accounted for by 
the four largest firms in the industry); and the Gini coefficient, 
which measures the degree of inequality in the distribution of firms by 
receipts size class under SBA's approach.
    SBA's primary source of industry data used in the rule to establish 
the new size standards for the three sectors of the commercial fishing 
industry was a special tabulation of the 2007 County Business Patterns 
data from the U.S. Bureau of Census (Census Bureau). This special 
tabulation provided SBA with data on the number of employer firms, 
number of establishments, number of employees, annual payroll, and 
annual receipts of companies by U.S. industry (6-digit NAICS code). 
These data were arrayed by various classes of firms' size based on the 
overall number of employees and gross receipts of the entire enterprise 
(all establishments and affiliated firms) from all industries. These 
data allowed SBA to estimate average firm size, the four-firm 
concentration ratio, and the Gini coefficient.
    SBA's Office of Size Standards provided these data upon request to 
NMFS. NMFS subsequently requested and received from the Census Bureau 
comparable data for non-employer businesses. NMFS aggregated data to 
the industry level (i.e., NAICS 11411) for employer and non-employer 
businesses and then combined these data. Although data confidentiality 
was not an issue with the non-employer data, prior to aggregation NMFS 
had to estimate total gross receipts in certain receipts classes for 
employer firms where the Census Bureau determined the data were 
confidential and thus could not be released. The combined data provide 
a complete accounting of the distribution of businesses and receipts by 
receipt size class category for all commercial fishing businesses. NMFS 
used these data to generate estimates of certain industry factors 
needed to establish a single size standard for the commercial fishing 
businesses, consistent with SBA's methodology to the extent 
practicable.
    Specifically, NMFS used the data it received from SBA and the 
Census Bureau to generate estimates of simple average receipts, 
weighted average receipts, and the Gini coefficient. For simple average 
receipts, each firm's share of the industry's total receipts is 
weighted equally, whereas the shares of larger firms receive larger 
weights in estimating weighted average receipts. Weighted average 
receipts and the Gini coefficient were estimated using the equations 
provided in SBA's Size Standards Methodology document. NMFS generated 
the following estimates for the commercial fishing industry: $77,178 
for simple average receipts, $12,322,365 for weighted average receipts, 
and 0.755 for the Gini coefficient. Based on the information in Table 2 
of SBA's proposed rule to change the size standards for the finfish, 
shellfish, and other marine fishing sectors of the commercial fishing 
industry (77 FR 55755), these estimates support size standards of $5 
million, $5 million, and $19 million, respectively.
    SBA also considers the average assets size of firms to be an 
important factor in establishing a size standard. NMFS does not possess 
and was not able to procure assets size data for non-employer 
businesses. SBA has such data for employer firms in the finfish and 
shellfish sectors, though not for employer firms in the other marine 
fishing sector because of the very small number of firms in that 
sector. The number of firms in the other marine fishing sector is very 
small because it includes firms primarily involved in the harvest of 
corals, sponges, reef associated plants (e.g., algae), and aquarium 
trade species, whose allowable harvest levels are very small. However, 
SBA had to purchase the assets size data for employer firms in the 
finfish and shellfish sectors from a private source and thus could not 
share the data with NMFS due to their proprietary nature. Therefore, 
NMFS created an estimate based on data that SBA published in its 
proposed rule, using the following approach.
    According to SBA's proposed rule, the average assets sizes for the 
finfish and shellfish commercial fishing sectors are $1.4 million and 
$0.4 million, respectively. Finfish fishing firms and shellfish fishing 
firms represent approximately 54 percent and 46 percent, respectively, 
of the 2,039 employer firms in those two sectors combined. Based on 
these percentages, the weighted average assets size of the combined 
finfish and shellfish commercial fishing sectors is approximately $0.94 
million. Based on Table 2 in SBA's proposed rule, this estimate 
supports a $7 million size standard.
    SBA does not consider the average receipts of the four largest 
firms to be an important factor in establishing a size standard for 
industries where the four-firm concentration ratio is below 40 percent 
(i.e., receipts of the 4 largest firms account for less than 40 percent 
of the total receipts). According to the data

[[Page 56435]]

SBA provided to NMFS, the four largest firms in the commercial fishing 
industry are commercial finfish fishing businesses. Within the finfish 
sector, these firms only account for 29 percent of total receipts 
within that sector. Therefore, within the larger commercial fishing 
industry as a whole, the percentage of receipts they account for must 
be less than 29 percent. Because the four largest firms account for 
less than 40 percent of the total receipts for the commercial fishing 
industry, consistent with SBA's methodology, NMFS did not use the four-
firm concentration ratio in establishing a single size standard for the 
commercial fishing industry.
    According to SBA's methodology, all factors should be weighted 
equally. Therefore, NMFS averaged the standards supported by the simple 
average receipts ($5 million), weighted average receipts ($5 million), 
Gini coefficient ($19 million), and average assets size ($7 million) 
estimates, which results in a size standard of $9 million. However, SBA 
only allowed for eight size standards in its final rule (79 FR 54146, 
September 10, 2014): $5 million, $7 million, $10 million, $14 million, 
$19 million, $25.5 million, $30 million, and $35.5 million. When the 
estimated size standard is not equivalent to one of these eight 
standards, SBA rounds up to the next highest size standard. For NMFS' 
estimated $9 million size standard, the next highest size standard 
would be $10 million. If the average assets size factor is not 
included, because it is based on aggregated employer data only rather 
than a combination of employer and non-employer data, the average of 
the other 3 factors is $9.67 million. Thus, the next highest size 
standard would still be $10 million.
    NMFS is aware the Census Bureau has recently released the 2012 
County Business Patterns data for employer firms. However, 2012 data 
for non-employer firms has not yet been released. As previously 
discussed, NMFS does not think it is prudent to propose a size standard 
based only on employer data because 97 percent of the commercial 
fishing businesses are non-employers. Further, even if the 2012 non-
employer data is released and NMFS generates new estimates of the 
various industry factors, NMFS would still not be able to determine 
what standards are implied by the new estimates until SBA generates an 
updated version of Table 2 in its proposed rule to change the size 
standards for the finfish, shellfish, and other marine fishing sectors 
of the commercial fishing industry (77 FR 55755) using 2012 rather than 
2007 data.
    As previously stated, SBA recently implemented a rule to adjust all 
of its receipts based size standards for inflation using the chain-type 
price index for the U.S. Gross Domestic Product (GDP price index) (79 
FR 33647, June 12, 2014). According to that rule, for all industries 
with a non-inflation-adjusted size standard of $10 million, the new 
inflation-adjusted size standard is $11 million.
    Thus, this rule proposes to establish a small business size 
standard of $11 million for all businesses in the commercial fishing 
industry (NAICS 11411) for RFA compliance purposes only. This single 
size standard for commercial fishing businesses would be used in all 
RFA analyses conducted in support of NMFS' regulatory actions. 
Establishing this single size standard would simplify the RFA analyses 
done in support of NMFS' rules, better meet the RFA's intent by more 
accurately representing expected disproportionate effects of NMFS' 
rules between small and large commercial fishing businesses, create a 
standard that more accurately reflects the size distribution of all 
businesses in the commercial fishing industry, and allow NMFS to 
determine when changes to the standard are necessary and appropriate.
    Consistent with SBA's review requirements under the Small Business 
Jobs Act of 2010 and 13 CFR 121.102, NMFS also proposes to review this 
standard at least once every 5 years to determine if a change is 
warranted. A change may be warranted because of changes in industry 
structure, market conditions, inflation, or other relevant factors. The 
reviews for these potential reasons will be conducted simultaneously in 
order to minimize the frequency of changes to the standard and 
additional rulemakings.
    Consistent with the requirements in 13 CFR 121.903(c), NMFS will 
formally consult SBA's Office of Advocacy to ensure their concurrence 
with this proposed action.

Classification

    Pursuant to section 601(3) of the RFA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
the RFA and other applicable law, subject to further consideration 
after public comment.
    This proposed rule has been determined by the Office of Management 
and Budget to be significant for purposes of Executive Order 12866 
because it raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the SBA that this rule, 
if adopted, would not have a significant economic impact on a 
substantial number of small entities. The factual basis for this 
determination is as follows.
    The purposes of the rule are to establish a single small business 
size standard of $11 million in annual gross receipts for the 
commercial fishing industry (NAICS 11411), for RFA compliance purposes 
only, and a requirement for NMFS to assess at least once every 5 years 
whether this size standard should be changed. The objectives of the 
rule are to simplify the RFA analyses done in support of NMFS' rules, 
better meet the RFA's intent by more accurately representing expected 
disproportionate effects of NMFS' rules between small and large 
businesses, create a standard that more accurately reflects the size 
distribution of all businesses in the commercial fishing industry, and 
allow NMFS to determine when changes to the standard are necessary and 
appropriate. The RFA and 13 CFR 121.903(c) serve as the legal basis for 
the rule.
    The actions in this rule are administrative in nature and thus 
would only potentially generate indirect economic effects on commercial 
fishing businesses. Specifically, the proposed size standard would only 
affect how NMFS and the Councils determine whether commercial fishing 
businesses directly regulated by future regulatory actions are small or 
large, whether and to what extent those actions have disproportionate 
economic impacts on those two classes of businesses, and when it is 
appropriate for NMFS to change the standard in the future. This rule 
would not impose any new requirements on commercial fishing businesses. 
Therefore, no small entities would be directly regulated by this rule. 
This rule would not be expected to affect the behavior or operations of 
commercial fishing businesses. As such, this rule is not expected to 
generate any direct economic effects on commercial fishing businesses.
    Based on the information above, a reduction in profits for a 
substantial number of small entities is not expected. Because this 
rule, if implemented, is not expected to have a significant economic 
impact on a substantial number of small entities, an IRFA is not 
required and none has been prepared.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. This rule would not establish

[[Page 56436]]

any new reporting or record-keeping requirements.

List of Subjects in 50 CFR Part 200

    Commercial fishing, Small businesses.

    Dated: September 14, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to add 50 
CFR part 200 under subchapter A to read as follows:

SUBCHAPTER A--GENERAL PROVISIONS

PART 200--SMALL BUSINESS SIZE STANDARDS ESTABLISHED BY NMFS FOR 
REGULATORY FLEXIBILITY ACT COMPLIANCE PURPOSES ONLY

Sec.
200.1 Purpose and scope.
200.2 Small business size standards and frequency of review.

    Authority:  5 U.S.C. 601 et seq.


Sec.  200.1  Purpose and scope.

    (a) This part sets forth the National Marine Fisheries Service 
(NMFS) small business size standards for NMFS to use in conducting 
Regulatory Flexibility Act (RFA) analyses for NMFS actions subject to 
the RFA. This part also sets forth the timeframe for NMFS to review its 
small business size standards.
    (b) NMFS has established the alternative size standards in this 
part, for RFA compliance purposes only, in order to simplify the RFA 
analyses done in support of NMFS' rules, better meet the RFA's intent 
by more accurately representing expected disproportionate effects of 
NMFS' rules between small and large businesses, create a standard that 
more accurately reflects the size distribution of all businesses in the 
industry, and allow NMFS to determine when changes to the standard are 
necessary and appropriate.


Sec.  200.2  Small business size standards and frequency of review.

    (a) NMFS' small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing is $11 
million in annual gross receipts. This standard applies to all 
businesses classified under North American Industry Classification 
System (NAICS) code 11411 for commercial fishing, including all 
businesses classified as commercial finfish fishing (NAICS 114111), 
commercial shellfish fishing (NAICS 114112), and other commercial 
marine fishing (NAICS 114119) businesses.
    (b) NMFS will review each of the small business size standards in 
paragraph (a) of this section at least once every 5 years to determine 
if a change is warranted. A change may be warranted because of changes 
in industry structure, market conditions, inflation, or other relevant 
factors.

[FR Doc. 2015-23375 Filed 9-17-15; 8:45 am]
BILLING CODE 3510-22-P



                                                56432                 Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Proposed Rules

                                                www.regulations.gov under Docket No.                    Virgin River spinedace, wood turtle, and              DEPARTMENT OF COMMERCE
                                                FWS–R2–ES–2015–0124 under the                           the Yuman desert fringe-toed lizard
                                                Supporting Documents section.                           present substantial scientific or                     National Oceanic and Atmospheric
                                                                                                        commercial information indicating that                Administration
                                                Species and Range
                                                                                                        the requested actions may be warranted.
                                                Yuman desert fringe-toed lizard (Uma                                                                          50 CFR Part 200
                                                  rufopunctata); Arizona (United States)                   Because we have found that these
                                                  and Sonora (Mexico)                                   petitions present substantial                         [Docket No. 150227193–5193–01]
                                                                                                        information indicating that the
                                                Petition History                                        petitioned actions may be warranted, we               RIN 0648–BE92
                                                   On July 11, 2012, we received a                      are initiating status reviews to                      Establish a Single Small Business Size
                                                petition dated July 11, 2012, from the                  determine whether these actions under                 Standard for Commercial Fishing
                                                Center for Biological Diversity,                        the Act are warranted. At the conclusion              Businesses
                                                requesting that 53 species of reptiles                  of the status reviews, we will issue a 12-
                                                and amphibians, including the Yuman                     month finding, in accordance with                     AGENCY:  National Marine Fisheries
                                                desert fringe-toed lizard, be listed as                 section 4(b)(3)(B) of the Act, as to                  Service (NMFS), National Oceanic and
                                                endangered or threatened and that                       whether or not the Service believes                   Atmospheric Administration (NOAA),
                                                critical habitat be designated for these                listing is warranted.                                 Commerce.
                                                species under the Act. The petition                                                                           ACTION: Proposed rule; request for
                                                clearly identified itself as such and                      It is important to note that the
                                                                                                        ‘‘substantial information’’ standard for a            comment.
                                                included the requisite identification
                                                information for the petitioner, required                90-day finding differs from the Act’s                 SUMMARY:   NMFS proposes to establish a
                                                at 50 CFR 424.14(a). This finding                       ‘‘best scientific and commercial data’’               small business size standard of $11
                                                addresses the petition.                                 standard that applies to a status review              million in annual gross receipts for all
                                                                                                        to determine whether a petitioned                     businesses in the commercial fishing
                                                Finding                                                 action is warranted. A 90-day finding                 industry (NAICS 11411), for Regulatory
                                                   Based on our review of the petition                  does not constitute a status review                   Flexibility Act (RFA) compliance
                                                and sources cited in the petition, we                   under the Act. In a 12-month finding,                 purposes only. The proposed $11
                                                find that the petition presents                         we will determine whether a petitioned                million standard would be used in RFA
                                                substantial scientific or commercial                    action is warranted after we have                     analyses in place of the U.S. Small
                                                information indicating that listing the                 completed a thorough status review of                 Business Administration’s (SBA)
                                                Yuman desert fringe-toed lizard (Uma                    the species, which is conducted                       current standards of $20.5 million, $5.5
                                                rufopunctata) may be warranted based                    following a substantial 90-day finding.               million, and $7.5 million for the finfish
                                                on Factors A and E. However, during                     Because the Act’s standards for 90-day                (NAICS 114111), shellfish (NAICS
                                                our status review, we will thoroughly                   and 12-month findings are different, as               114112), and other marine fishing
                                                evaluate all potential threats to the                   described above, a substantial 90-day                 (NAICS 114119) sectors of the U.S.
                                                species. Thus, for this species, the                                                                          commercial fishing industry,
                                                                                                        finding does not mean that the 12-
                                                Service requests information on the five                                                                      respectively. Establishing a single size
                                                                                                        month finding will result in a warranted
                                                listing factors under section 4(a)(1) of                                                                      standard of $11 million for the
                                                the Act, including the factors identified               finding.
                                                                                                                                                              commercial fishing industry would
                                                in this finding (see Request for                        References Cited                                      simplify the RFA analyses done in
                                                Information for Status Reviews, above).                                                                       support of NMFS’ rules, better meet the
                                                                                                          A complete list of references cited is              RFA’s intent by more accurately
                                                Conclusion                                              available on the Internet at http://                  representing expected disproportionate
                                                   On the basis of our evaluation of the                www.regulations.gov and upon request                  effects of NMFS’ rules between small
                                                information presented under section                     from the appropriate lead field offices               and large businesses, create a standard
                                                4(b)(3)(A) of the Act, we have                          (contact the person listed under FOR                  that more accurately reflects the size
                                                determined that the petitions                           FURTHER INFORMATION CONTACT).                         distribution of all businesses in the
                                                summarized above for the Cahaba                                                                               commercial fishing industry, and allow
                                                pebblesnail and Stephens’ kangaroo rat                  Authors
                                                                                                                                                              NMFS to determine when changes to
                                                do not present substantial scientific or                                                                      the standard are necessary and
                                                                                                          The primary authors of this notice are
                                                commercial information indicating that                                                                        appropriate.
                                                the requested actions may be warranted.                 staff members of the Ecological Services
                                                Therefore, we are not initiating status                 Program, U.S. Fish and Wildlife Service.              DATES:  Comments must be received by
                                                reviews for these species.                                                                                    October 19, 2015.
                                                                                                        Authority
                                                   The petitions summarized above for                                                                         ADDRESSES: You may submit comments
                                                the blue Calamintha bee, California                       The authority for these actions is the              on this document, identified by NOAA–
                                                spotted owl, Cascade torrent                            Endangered Species Act of 1973, as                    NMFS–2015–0061, by either of the
                                                salamander, Columbia torrent                            amended (16 U.S.C. 1531 et seq.).                     following methods:
                                                salamander, Florida pine snake, Inyo                      Dated: August 31, 2015.
                                                                                                                                                                • Electronic Submission: Submit all
                                                Mountains salamander, Kern Plateau                                                                            electronic public comments via the
                                                                                                        Stephen Guertin,
tkelley on DSK3SPTVN1PROD with PROPOSALS




                                                salamander, lesser slender salamander,                                                                        Federal e-Rulemaking Portal. Go to
                                                limestone salamander, northern bog                      Acting Director, U.S. Fish and Wildlife               www.regulations.gov/
                                                lemming, Panamint alligator lizard,                     Service.                                              #!docketDetail;D=NOAA-NMFS-2015-
                                                Peaks of Otter salamander, regal                        [FR Doc. 2015–23315 Filed 9–17–15; 8:45 am]           0061, click the ‘‘Comment Now!’’ icon,
                                                fritillary, rusty patched bumble bee,                   BILLING CODE 4310–55–P                                complete the required fields, and enter
                                                Shasta salamander, short-tailed snake,                                                                        or attach your comments.
                                                southern rubber boa, Tinian monarch,                                                                            • Mail: Send written comments to
                                                tricolored blackbird, tufted puffin,                                                                          Mike Travis, NOAA Fisheries Service,


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                                                                      Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Proposed Rules                                        56433

                                                Southeast Regional Office, 263 13th                     each proposed and final rule,                         various regulatory alternatives might
                                                Ave. S., St. Petersburg, FL 33701.                      respectively, unless it certifies that a              have on businesses NMFS and the
                                                   Instructions: Comments sent by any                   rule will not have a significant                      Councils think are ‘‘small’’ in the
                                                other method, to any other address or                   economic impact on a substantial                      commercial fishing industry. Such an
                                                individual, or received after the end of                number of small entities. Agencies                    outcome effectively precludes NMFS
                                                the comment period, may not be                          generally rely on the SBA size standards              from fulfilling one of the RFA’s primary
                                                considered by NMFS. All comments                        to identify small entities for RFA                    purposes and thus is not desirable.
                                                received are a part of the public record                purposes. For NMFS, rulemaking                           Section 601(3) of the RFA provides
                                                and will generally be posted for public                 activities that have been impacted by                 that an agency, after consultation with
                                                viewing on www.regulations.gov                          changes to the size standards for                     SBA’s Office of Advocacy and after an
                                                without change. All personal identifying                defining ‘‘small’’ businesses include,                opportunity for public comment, may
                                                information (e.g., name, address, etc.),                but are not limited to, regulatory actions            establish one or more definitions of
                                                confidential business information, or                   and analyses undertaken pursuant to the               ‘‘small business’’ which are appropriate
                                                otherwise sensitive information                         Magnuson-Stevens Act (MSA),                           to the activities of the agency and
                                                submitted voluntarily by the sender will                Endangered Species Act (ESA), Marine                  publish such definition(s) in the Federal
                                                be publicly accessible. NMFS will                       Mammal Protection Act (MMPA), and                     Register. Further, 13 CFR 121.903(c)
                                                accept anonymous comments (enter                        National Environmental Policy Act                     states that ‘‘where the agency head is
                                                ‘‘N/A’’ in the required fields if you wish              (NEPA). Between 2012 and 2014, NMFS                   developing a size standard for the sole
                                                to remain anonymous), and will accept                   published an average of 285 final rules               purpose of performing a Regulatory
                                                attachments to electronic comments in                   per year, more than 40 percent of which               Flexibility Analysis pursuant to section
                                                Microsoft Word, Excel, or Adobe PDF                     required an RFA analysis, and a                       601(3) of the Regulatory Flexibility Act,
                                                file formats only.                                      majority of those directly regulated                  the department or agency may, after
                                                                                                        commercial fishing businesses. Thus,                  consultation with the SBA Office of
                                                FOR FURTHER INFORMATION CONTACT:
                                                                                                        NMFS’ costs of complying with the RFA                 Advocacy, establish a size standard
                                                Mike Travis, Industry Economist, at
                                                                                                        are significant even when the small                   different from SBA’s which is more
                                                (727) 209–5982.
                                                                                                        business size standards are stable, and               appropriate for such analysis.’’ NMFS
                                                SUPPLEMENTARY INFORMATION:                                                                                    and the Department of Commerce
                                                                                                        those costs increase substantially when
                                                Background                                              the standards are changing on a                       General Counsel’s Office had
                                                                                                        recurring basis.                                      preliminary discussions with SBA’s
                                                   Prior to 2013, SBA had set the small                    NMFS and the Regional Fishery                      Office of Advocacy about these
                                                business size standard for all sectors of               Management Councils (Councils) have                   provisions, and SBA was supportive of
                                                the commercial fishing industry at the                  encountered significant difficulties                  NMFS using RFA section 601(3) and 13
                                                same amount. Since 2005, this standard                  implementing and adjusting to the new                 CFR 121.903(c) to establish its own size
                                                had been $4 million in annual gross                     standards because: (1) The change was                 standard for the commercial fishing
                                                receipts (revenues). Effective July 22,                 from a single size standard for all                   industry for purposes of RFA analyses
                                                2013, SBA established significantly                     commercial fishing businesses to three                only.
                                                different and higher size standards for                 very different standards, (2) many                       SBA has also previously expressed
                                                the three separate sectors of the industry              commercial fishing businesses                         support for the idea of creating a single
                                                (78 FR 37398, June 20, 2013): $19                       participate in both finfish and shellfish             size standard in instances where
                                                million for commercial finfish fishing                  fishing activities, making it unclear                 industries are closely related, as is the
                                                businesses (NAICS 114111), $5.0                         which standard to apply in the RFA                    case for the commercial finfish and
                                                million for commercial shellfish fishing                analyses, and (3) a number of rules                   shellfish fishing industries. In its
                                                businesses (NAICS 114112), and $7.0                     simultaneously implement regulations                  proposed rule to change the size
                                                million for other commercial marine                     under fishery management plans for                    standard for businesses in
                                                fishing businesses (NAICS 114119).                      both finfish and shellfish species (for               manufacturing industries (79 FR 54146,
                                                These standards were subsequently                       e.g., 76 FR 82044, December 29, 2011;                 Sept. 10, 2014), SBA stated: ‘‘To
                                                adjusted for inflation to $20.5 million,                76 FR 82414, December 30, 2011; 77 FR                 simplify size standards and for other
                                                $5.5 million, and $7.5 million,                         15916, March 26, 2012; and 80 FR                      reasons, SBA may propose a common
                                                respectively, via an interim final rule,                41472, July 15, 2015), again making it                size standard for closely related
                                                effective July 14, 2014 (79 FR 33647,                   unclear which standard to apply in the                industries. Although the size standard
                                                June 12, 2014). The Small Business Jobs                 RFA analyses.                                         analysis may support a separate size
                                                Act of 2010 requires SBA to review all                     Furthermore, one of the RFA’s                      standard for each industry, SBA
                                                size standards every five years to                      primary purposes is to determine if                   believes that establishing different size
                                                account for changes in industry                         proposed regulations are expected to                  standards for closely related industries
                                                structure and market conditions. SBA is                 have disproportionate economic                        may not always be appropriate. For
                                                also required to assess the impact of                   impacts on small businesses relative to               example, in cases where many of the
                                                inflation on its monetary-based size                    large businesses and, if so, to consider              same businesses operate in the same
                                                standards at least once every five years                alternatives that would minimize any                  multiple industries, a common size
                                                (13 CFR 121.102). However, as reflected                 significant adverse economic impacts on               standard for those industries might
                                                by the timing of the two recent                         small businesses. Under SBA’s current                 better reflect the Federal marketplace.
                                                rulemakings adjusting the size                          standards for commercial fishing                      This might also make size standards
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                                                standards, SBA is not required to                       businesses, practically all commercial                among related industries more
                                                conduct the reviews for these two                       fishing businesses, and particularly                  consistent than separate size standards
                                                purposes simultaneously. Thus, these                    commercial finfish fishing businesses,                for each of those industries.’’ (79 FR
                                                size standards are likely to change on a                would likely be determined to be small.               54146, 54150, Sept. 10, 2014).
                                                regular basis.                                          Thus, in their RFA analyses, NMFS and                    NMFS has determined that the data
                                                   Under the RFA, an agency must                        the Councils would not be able to                     used by SBA’s Office of Size Standards
                                                prepare an initial and final regulatory                 discern, consider, or address any                     to develop the new standards are
                                                flexibility analysis (IRFA/FRFA) for                    disproportionate economic impacts that                incomplete and, as a result, not


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                                                56434                 Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Proposed Rules

                                                representative of all commercial fishing                measured by simple average receipts                   Weighted average receipts and the Gini
                                                businesses. Specifically, the data used                 and weighted average receipts; average                coefficient were estimated using the
                                                by SBA only account for commercial                      assets size; the four-firm concentration              equations provided in SBA’s Size
                                                fishing businesses that have employees                  ratio (i.e., the percentage of receipts               Standards Methodology document.
                                                (i.e., employer firms), and thus do not                 accounted for by the four largest firms               NMFS generated the following estimates
                                                include commercial fishing businesses                   in the industry); and the Gini                        for the commercial fishing industry:
                                                that do not have employees (i.e., non-                  coefficient, which measures the degree                $77,178 for simple average receipts,
                                                employer firms). Non-employer                           of inequality in the distribution of firms            $12,322,365 for weighted average
                                                commercial fishing businesses typically                 by receipts size class under SBA’s                    receipts, and 0.755 for the Gini
                                                pay their self-employed crew a                          approach.                                             coefficient. Based on the information in
                                                percentage of the gross or net revenue                     SBA’s primary source of industry data              Table 2 of SBA’s proposed rule to
                                                on each commercial fishing trip rather                  used in the rule to establish the new                 change the size standards for the finfish,
                                                than a standard wage or salary, and thus                size standards for the three sectors of               shellfish, and other marine fishing
                                                self-employed crew are not considered                   the commercial fishing industry was a                 sectors of the commercial fishing
                                                employees. Commercial fishing                           special tabulation of the 2007 County                 industry (77 FR 55755), these estimates
                                                businesses with employees represent                     Business Patterns data from the U.S.                  support size standards of $5 million, $5
                                                only about 3 percent of all commercial                  Bureau of Census (Census Bureau). This                million, and $19 million, respectively.
                                                fishing businesses, while the other 97                  special tabulation provided SBA with                     SBA also considers the average assets
                                                percent are non-employer firms.                         data on the number of employer firms,                 size of firms to be an important factor
                                                   Further, according to SBA, annual                    number of establishments, number of                   in establishing a size standard. NMFS
                                                gross revenues for finfish and shellfish                employees, annual payroll, and annual                 does not possess and was not able to
                                                commercial fishing businesses with                      receipts of companies by U.S. industry                procure assets size data for non-
                                                employees average $1.6 and $0.6                         (6-digit NAICS code). These data were                 employer businesses. SBA has such data
                                                million, respectively. Conversely, NMFS                 arrayed by various classes of firms’ size             for employer firms in the finfish and
                                                determined the annual gross revenues                    based on the overall number of                        shellfish sectors, though not for
                                                for commercial fishing businesses                       employees and gross receipts of the                   employer firms in the other marine
                                                without employees is only about                         entire enterprise (all establishments and             fishing sector because of the very small
                                                $44,000 on average. Thus, NMFS                          affiliated firms) from all industries.                number of firms in that sector. The
                                                concluded the exclusion of commercial                   These data allowed SBA to estimate                    number of firms in the other marine
                                                fishing businesses without employees is                 average firm size, the four-firm                      fishing sector is very small because it
                                                primarily responsible for the magnitude                 concentration ratio, and the Gini                     includes firms primarily involved in the
                                                of the size standard increases,                         coefficient.                                          harvest of corals, sponges, reef
                                                particularly for finfish fishing                           SBA’s Office of Size Standards                     associated plants (e.g., algae), and
                                                businesses, and the standards would                     provided these data upon request to                   aquarium trade species, whose
                                                have been very different if SBA had                     NMFS. NMFS subsequently requested                     allowable harvest levels are very small.
                                                used data for all commercial fishing                    and received from the Census Bureau                   However, SBA had to purchase the
                                                businesses. Because the size standards                  comparable data for non-employer                      assets size data for employer firms in
                                                apply to all commercial fishing                         businesses. NMFS aggregated data to the               the finfish and shellfish sectors from a
                                                businesses, not just those with                         industry level (i.e., NAICS 11411) for                private source and thus could not share
                                                employees, when used to analyze the                     employer and non-employer businesses                  the data with NMFS due to their
                                                economic impacts of management                          and then combined these data. Although                proprietary nature. Therefore, NMFS
                                                actions on directly regulated entities                  data confidentiality was not an issue                 created an estimate based on data that
                                                under the RFA, NMFS thinks it is more                   with the non-employer data, prior to                  SBA published in its proposed rule,
                                                appropriate to have size standards for                  aggregation NMFS had to estimate total                using the following approach.
                                                RFA purposes that are based on all                      gross receipts in certain receipts classes               According to SBA’s proposed rule, the
                                                commercial fishing businesses.                          for employer firms where the Census                   average assets sizes for the finfish and
                                                   In conjunction with its recent review                Bureau determined the data were                       shellfish commercial fishing sectors are
                                                of size standards, SBA developed a                      confidential and thus could not be                    $1.4 million and $0.4 million,
                                                ‘‘Size Standards Methodology’’ for                      released. The combined data provide a                 respectively. Finfish fishing firms and
                                                establishing, reviewing, and modifying                  complete accounting of the distribution               shellfish fishing firms represent
                                                size standards, where necessary. SBA                    of businesses and receipts by receipt                 approximately 54 percent and 46
                                                included it as a supporting document in                 size class category for all commercial                percent, respectively, of the 2,039
                                                the electronic docket of the September                  fishing businesses. NMFS used these                   employer firms in those two sectors
                                                11, 2012, proposed rule to change the                   data to generate estimates of certain                 combined. Based on these percentages,
                                                size standards for the three sectors of                 industry factors needed to establish a                the weighted average assets size of the
                                                the commercial fishing industry (77 FR                  single size standard for the commercial               combined finfish and shellfish
                                                55755) at www.regulations.gov.                          fishing businesses, consistent with                   commercial fishing sectors is
                                                Application of this new methodology                     SBA’s methodology to the extent                       approximately $0.94 million. Based on
                                                resulted in the significantly different                 practicable.                                          Table 2 in SBA’s proposed rule, this
                                                size standards for the three separate                      Specifically, NMFS used the data it                estimate supports a $7 million size
                                                sectors of the industry. NMFS                           received from SBA and the Census                      standard.
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                                                referenced this document in developing                  Bureau to generate estimates of simple                   SBA does not consider the average
                                                the proposed size standard in this                      average receipts, weighted average                    receipts of the four largest firms to be an
                                                proposed rule. Consistent with that                     receipts, and the Gini coefficient. For               important factor in establishing a size
                                                methodology, SBA used the following                     simple average receipts, each firm’s                  standard for industries where the four-
                                                industry factors to establish the current               share of the industry’s total receipts is             firm concentration ratio is below 40
                                                size standards for NAICS Sector 11                      weighted equally, whereas the shares of               percent (i.e., receipts of the 4 largest
                                                (Agriculture, Forestry, Fishing, and                    larger firms receive larger weights in                firms account for less than 40 percent of
                                                Hunting): Average firm size, as                         estimating weighted average receipts.                 the total receipts). According to the data


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                                                                      Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Proposed Rules                                         56435

                                                SBA provided to NMFS, the four largest                  55755) using 2012 rather than 2007                    the principles set forth in the Executive
                                                firms in the commercial fishing industry                data.                                                 Order.
                                                are commercial finfish fishing                             As previously stated, SBA recently                    The Chief Counsel for Regulation of
                                                businesses. Within the finfish sector,                  implemented a rule to adjust all of its               the Department of Commerce certified
                                                these firms only account for 29 percent                 receipts based size standards for                     to the Chief Counsel for Advocacy of the
                                                of total receipts within that sector.                   inflation using the chain-type price                  SBA that this rule, if adopted, would
                                                Therefore, within the larger commercial                 index for the U.S. Gross Domestic                     not have a significant economic impact
                                                fishing industry as a whole, the                        Product (GDP price index) (79 FR                      on a substantial number of small
                                                percentage of receipts they account for                 33647, June 12, 2014). According to that              entities. The factual basis for this
                                                must be less than 29 percent. Because                   rule, for all industries with a non-                  determination is as follows.
                                                the four largest firms account for less                 inflation-adjusted size standard of $10                  The purposes of the rule are to
                                                than 40 percent of the total receipts for               million, the new inflation-adjusted size              establish a single small business size
                                                the commercial fishing industry,                        standard is $11 million.                              standard of $11 million in annual gross
                                                consistent with SBA’s methodology,                         Thus, this rule proposes to establish              receipts for the commercial fishing
                                                NMFS did not use the four-firm                          a small business size standard of $11                 industry (NAICS 11411), for RFA
                                                concentration ratio in establishing a                   million for all businesses in the                     compliance purposes only, and a
                                                single size standard for the commercial                 commercial fishing industry (NAICS                    requirement for NMFS to assess at least
                                                fishing industry.                                       11411) for RFA compliance purposes                    once every 5 years whether this size
                                                   According to SBA’s methodology, all                  only. This single size standard for                   standard should be changed. The
                                                factors should be weighted equally.                     commercial fishing businesses would be                objectives of the rule are to simplify the
                                                Therefore, NMFS averaged the                            used in all RFA analyses conducted in                 RFA analyses done in support of NMFS’
                                                standards supported by the simple                       support of NMFS’ regulatory actions.                  rules, better meet the RFA’s intent by
                                                average receipts ($5 million), weighted                 Establishing this single size standard                more accurately representing expected
                                                average receipts ($5 million), Gini                     would simplify the RFA analyses done                  disproportionate effects of NMFS’ rules
                                                coefficient ($19 million), and average                  in support of NMFS’ rules, better meet                between small and large businesses,
                                                assets size ($7 million) estimates, which               the RFA’s intent by more accurately                   create a standard that more accurately
                                                results in a size standard of $9 million.               representing expected disproportionate                reflects the size distribution of all
                                                However, SBA only allowed for eight                     effects of NMFS’ rules between small                  businesses in the commercial fishing
                                                size standards in its final rule (79 FR                 and large commercial fishing                          industry, and allow NMFS to determine
                                                54146, September 10, 2014): $5 million,                 businesses, create a standard that more               when changes to the standard are
                                                $7 million, $10 million, $14 million,                   accurately reflects the size distribution             necessary and appropriate. The RFA
                                                $19 million, $25.5 million, $30 million,                of all businesses in the commercial                   and 13 CFR 121.903(c) serve as the legal
                                                and $35.5 million. When the estimated                   fishing industry, and allow NMFS to                   basis for the rule.
                                                size standard is not equivalent to one of               determine when changes to the standard                   The actions in this rule are
                                                these eight standards, SBA rounds up to                 are necessary and appropriate.                        administrative in nature and thus would
                                                the next highest size standard. For                        Consistent with SBA’s review                       only potentially generate indirect
                                                NMFS’ estimated $9 million size                         requirements under the Small Business                 economic effects on commercial fishing
                                                standard, the next highest size standard                Jobs Act of 2010 and 13 CFR 121.102,                  businesses. Specifically, the proposed
                                                would be $10 million. If the average                    NMFS also proposes to review this                     size standard would only affect how
                                                assets size factor is not included,                     standard at least once every 5 years to               NMFS and the Councils determine
                                                because it is based on aggregated                       determine if a change is warranted. A                 whether commercial fishing businesses
                                                employer data only rather than a                        change may be warranted because of                    directly regulated by future regulatory
                                                combination of employer and non-                        changes in industry structure, market                 actions are small or large, whether and
                                                employer data, the average of the other                 conditions, inflation, or other relevant              to what extent those actions have
                                                3 factors is $9.67 million. Thus, the next              factors. The reviews for these potential              disproportionate economic impacts on
                                                highest size standard would still be $10                reasons will be conducted                             those two classes of businesses, and
                                                million.                                                simultaneously in order to minimize the               when it is appropriate for NMFS to
                                                   NMFS is aware the Census Bureau has                  frequency of changes to the standard                  change the standard in the future. This
                                                recently released the 2012 County                       and additional rulemakings.                           rule would not impose any new
                                                Business Patterns data for employer                        Consistent with the requirements in                requirements on commercial fishing
                                                firms. However, 2012 data for non-                      13 CFR 121.903(c), NMFS will formally                 businesses. Therefore, no small entities
                                                employer firms has not yet been                         consult SBA’s Office of Advocacy to                   would be directly regulated by this rule.
                                                released. As previously discussed,                      ensure their concurrence with this                    This rule would not be expected to
                                                NMFS does not think it is prudent to                    proposed action.                                      affect the behavior or operations of
                                                propose a size standard based only on                                                                         commercial fishing businesses. As such,
                                                employer data because 97 percent of the                 Classification                                        this rule is not expected to generate any
                                                commercial fishing businesses are non-                    Pursuant to section 601(3) of the RFA,              direct economic effects on commercial
                                                employers. Further, even if the 2012                    the NMFS Assistant Administrator has                  fishing businesses.
                                                non-employer data is released and                       determined that this proposed rule is                    Based on the information above, a
                                                NMFS generates new estimates of the                     consistent with the RFA and other                     reduction in profits for a substantial
                                                various industry factors, NMFS would                    applicable law, subject to further                    number of small entities is not expected.
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                                                still not be able to determine what                     consideration after public comment.                   Because this rule, if implemented, is not
                                                standards are implied by the new                          This proposed rule has been                         expected to have a significant economic
                                                estimates until SBA generates an                        determined by the Office of                           impact on a substantial number of small
                                                updated version of Table 2 in its                       Management and Budget to be                           entities, an IRFA is not required and
                                                proposed rule to change the size                        significant for purposes of Executive                 none has been prepared.
                                                standards for the finfish, shellfish, and               Order 12866 because it raises novel                      No duplicative, overlapping, or
                                                other marine fishing sectors of the                     legal or policy issues arising out of legal           conflicting Federal rules have been
                                                commercial fishing industry (77 FR                      mandates, the President’s priorities, or              identified. This rule would not establish


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                                                56436                 Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Proposed Rules

                                                any new reporting or record-keeping                     § 200.1   Purpose and scope.                          § 200.2 Small business size standards and
                                                requirements.                                                                                                 frequency of review.
                                                                                                           (a) This part sets forth the National
                                                                                                        Marine Fisheries Service (NMFS) small                    (a) NMFS’ small business size
                                                List of Subjects in 50 CFR Part 200
                                                                                                                                                              standard for businesses, including their
                                                   Commercial fishing, Small businesses.                business size standards for NMFS to use
                                                                                                                                                              affiliates, whose primary industry is
                                                                                                        in conducting Regulatory Flexibility Act
                                                  Dated: September 14, 2015.                                                                                  commercial fishing is $11 million in
                                                                                                        (RFA) analyses for NMFS actions                       annual gross receipts. This standard
                                                Samuel D. Rauch III,                                    subject to the RFA. This part also sets
                                                Deputy Assistant Administrator for                                                                            applies to all businesses classified
                                                                                                        forth the timeframe for NMFS to review                under North American Industry
                                                Regulatory Programs, National Marine
                                                                                                        its small business size standards.                    Classification System (NAICS) code
                                                Fisheries Service.
                                                                                                           (b) NMFS has established the                       11411 for commercial fishing, including
                                                  For the reasons set out in the
                                                                                                        alternative size standards in this part,              all businesses classified as commercial
                                                preamble, NMFS proposes to add 50
                                                                                                        for RFA compliance purposes only, in                  finfish fishing (NAICS 114111),
                                                CFR part 200 under subchapter A to
                                                                                                        order to simplify the RFA analyses done               commercial shellfish fishing (NAICS
                                                read as follows:
                                                                                                        in support of NMFS’ rules, better meet                114112), and other commercial marine
                                                SUBCHAPTER A—GENERAL PROVISIONS                         the RFA’s intent by more accurately                   fishing (NAICS 114119) businesses.
                                                                                                        representing expected disproportionate                   (b) NMFS will review each of the
                                                PART 200—SMALL BUSINESS SIZE                                                                                  small business size standards in
                                                                                                        effects of NMFS’ rules between small
                                                STANDARDS ESTABLISHED BY NMFS                                                                                 paragraph (a) of this section at least
                                                FOR REGULATORY FLEXIBILITY ACT                          and large businesses, create a standard
                                                                                                        that more accurately reflects the size                once every 5 years to determine if a
                                                COMPLIANCE PURPOSES ONLY                                                                                      change is warranted. A change may be
                                                                                                        distribution of all businesses in the
                                                Sec.                                                    industry, and allow NMFS to determine                 warranted because of changes in
                                                200.1 Purpose and scope.                                                                                      industry structure, market conditions,
                                                                                                        when changes to the standard are
                                                200.2 Small business size standards and                                                                       inflation, or other relevant factors.
                                                                                                        necessary and appropriate.
                                                     frequency of review.                                                                                     [FR Doc. 2015–23375 Filed 9–17–15; 8:45 am]
                                                   Authority: 5 U.S.C. 601 et seq.                                                                            BILLING CODE 3510–22–P
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Document Created: 2015-12-15 09:27:40
Document Modified: 2015-12-15 09:27:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule; request for comment.
DatesComments must be received by October 19, 2015.
ContactMike Travis, Industry Economist, at (727) 209-5982.
FR Citation80 FR 56432 
RIN Number0648-BE92
CFR AssociatedCommercial Fishing and Small Businesses

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