[Federal Register Volume 76, Number 62 (Thursday, March 31, 2011)]
[Proposed Rules]
[Pages 17808-17811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7622]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 100803320-1201-01]
RIN 0648-AY93


Fisheries in the Western Pacific; Mechanism for Specifying Annual 
Catch Limits and Accountability Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would establish procedures and timing for 
specifying annual catch limits (ACLs) and accountability measures (AMs) 
for western Pacific fisheries. The proposed rule is procedural in 
nature, and is intended to help NMFS end and prevent overfishing, 
rebuild overfish stocks, and achieve optimum yield.

DATES: Comments on the proposed rule must be received by May 16, 2011.

ADDRESSES: Comments on this proposed rule, identified by 0648-AY93, may 
be sent to either of the following addresses:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov; or
    <bullet> Mail: Mail written comments to Michael D. Tosatto, 
Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 
Kapiolani Blvd, Suite 1110, Honolulu, HI 96814-4700.
    Instructions: Comments must be submitted to one of the two 
addresses to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent to any other address or individual, 
or received after the end of the comment period, may not be considered. 
All comments received are a part of the public record and will 
generally be posted for public viewing on http://www.regulations.gov 
without

[[Page 17809]]

change. All personal identifying information (e.g., name, address, 
etc.) submitted voluntarily by the sender may be publicly accessible. 
Do not submit confidential business information, or otherwise sensitive 
or protected information. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word 
or Excel, WordPerfect, or Adobe PDF file formats only.
    This proposed rule would implement the recommendations of the 
Western Pacific Fishery Management Council (Council) in Amendment 1 to 
the Fishery Ecosystem Plan (FEP) for the Pacific Remote Islands Areas 
(PRIA), Amendment 2 to the American Samoa FEP, Amendment 2 to the 
Mariana Archipelago FEP, Amendment 3 to the Hawaii FEP, and Amendment 4 
to the Western Pacific Pelagic FEP. The amendments establish a 
procedural framework (mechanism) that the Council would use to set ACLs 
and AMs in the western Pacific, and are consolidated into a single 
document. The amendments are currently under review by the Secretary of 
Commerce. The amendment document, which contains an environmental 
assessment and background information on this proposed rule, is 
available from http://www.regulations.gov, and from the Council, 1164 
Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-
522-8226, http://www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Jarad Makaiau, NMFS PIR, Sustainable 
Fisheries, 808-944-2108.

SUPPLEMENTARY INFORMATION: In 2006, Congress amended the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
to include provisions to help NMFS prevent and end overfishing and 
rebuild overfished stocks, the objectives of National Standard 1. 
Specifically, the Magnuson-Stevens Act requires that regional fishery 
management councils develop fishery management plans that include a 
mechanism for specifying ACLs at a level such that overfishing does not 
occur and that does not exceed the fishing level recommendation of a 
council's Scientific and Statistical Committee (SSC). AMs are also 
required to prevent ACLs from being exceeded, and to correct or 
mitigate overage of an ACL should it occur. Currently, the FEPs do not 
contain ACLs or AMs, nor do they contain a procedure by which to 
establish ACLs or AMs; the Council addressed this issue in the 
amendments to the FEPs, which this proposed rule would implement.
    The Magnuson-Stevens Act requirements for ACLs and AMs does not 
apply to fisheries for stocks that are subject to international fishery 
agreements in which the U.S. participates, or for species with life 
cycles of approximately one year. These stocks are excepted either 
because ACLs and AMs are provided for by the international agreements 
(and establishing ACL mechanisms and AMs on just the U.S. portion of 
the fishery is unlikely to have any impact on ending overfishing and 
rebuilding), or because ACLs or AMs are unnecessary or impractical for 
short-lived species. Accordingly, this proposed rule contains these two 
types of exceptions. Even though they are exempt from the ACL and AM 
requirements, the FEPs for international stocks must identify status 
determination criteria and maximum sustainable yield, and for short 
life cycle stocks, the FEPs must identify status determination 
criteria, maximum sustainable yield, optimum yield, and acceptable 
biological catch (ABC) with a related control rule.
    ACLs and AMs would also not be required for species classified in a 
fishery management plan as ``ecosystem component species,'' which this 
rule would define as ``any western Pacific [management unit species] 
that the Council has identified to be, generally, a non-target species, 
not determined to be subject to overfishing, approaching overfished, or 
overfished, not likely to become subject to overfishing or overfished, 
and generally not retained for sale or personal use.'' Because 
ecosystem component species are not in danger of being overfished, 
management measures are not necessary for them, and NMFS would exempt 
these species from the ACLs and AMs. While this rule would establish 
the procedures for the Council to use to establish the ACLs and AMs, 
the actual ACLs and AMs will be specified through future action.
    To comply with the Magnuson-Stevens Act and National Standard 1 
guidelines, this proposed rule would implement a mechanism for the 
Council and NMFS to specify ACLs, possibly including multi-year ACLs, 
and AMs in western Pacific fisheries. Briefly, the mechanism requires 
the Council to recommend an ACL to NMFS at least two months before the 
start of a fishing year. The ACL recommendation may include a downward 
adjustment to account for the fishery exceeding the ACL in the previous 
year. The Council's recommendation should be based on the SSC's 
recommendation of the ABC for the subject species or fishery, and it 
may not exceed the SSC's recommendation. At least one month before the 
fishing year starts, NMFS will announce the proposed ACL and request 
public comments. Before the start of the fishing year, NMFS will notify 
fishermen and the public of the final ACL specification.
    NMFS monitors the fishery on an ongoing basis throughout the 
fishing year. When an ACL is projected to be reached during the year, 
NMFS will notify fishermen and the public that fishing for the 
regulated stock will be restricted through one or more inseason 
accountability measures to ensure that the ACL is not exceeded. 
Restrictions may include, but are not limited to, closing the fishery, 
closing specific areas, changing bag limits, or otherwise restricting 
effort or catch. Any inseason restriction will generally remain in 
effect until the end of the fishing year. If inseason monitoring or 
subsequent data analyses indicate that an ACL was exceeded in the 
previous fishing year, the Council may recommend that NMFS reduce the 
ACL for the subsequent year by the amount of the overage. In 
determining whether an overage adjustment is necessary, the Council 
would consider the magnitude of the overage and its impact on the 
affected stock's status. Additionally, if an ACL is exceeded more than 
once in a four-year period, the Council will re-evaluate the mechanism 
of ACLs and AMs, and adjust the system, as necessary, to improve its 
performance and effectiveness.
    As described in the amendment, the Council's SSC would use a tier 
of control rules, based on the availability and quality of data about 
the stocks, to determine the appropriate ABC, which the Council would, 
in turn, use to identify appropriate ACLs and AMs. For example, if it 
has supporting data, the mechanism would allow the SSC to base ABC on a 
probability of overfishing that is less than 50 percent when biological 
reference points (e.g., biomass, maximum sustainable yield, etc.) are 
directly available from statistical-based stock assessments. The 
amendment also includes a qualitative approach for determining the 
appropriate probability of overfishing. Other control rules would 
estimate fishing mortality for stocks where information is insufficient 
to use model-based assessment tools, and would set ABC as a reduced 
proportion of the maximum sustainable yield or recent harvests. Details 
of the tiers and control rules are found in the amendment [see 
ADDRESSES].
    The Council and NMFS would use the mechanism implemented through 
this proposed rule to specify ACLs and AMs

[[Page 17810]]

starting in 2011, and would provide the public with opportunities to 
review and comment on the specific ACLs and AMs at the time they are 
specified.
    To be considered, comments on this proposed rule must be received 
by May 16, 2011, not postmarked or otherwise transmitted by that date.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FEPs for American Samoa, Hawaii, the Marianas, 
PRIA, and western Pacific pelagic fisheries, other provisions of the 
Magnuson-Stevens Act, and other applicable laws, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities, 
as follows:
    The Western Pacific Fishery Management Council proposes to amend 
its fishery ecosystem plans to establish a mechanism for specifying 
annual catch limits (ACL), and accountability measures (AM) to prevent 
an ACL from being exceeded, and correct or mitigate any overages of 
ACLs. The proposed rule would codify the ACL and AM mechanism, 
including the procedures for, and timing of, specifications, and 
exceptions to ACL and AM requirements. The proposed rule does not 
specify any ACL or AM for western Pacific fisheries. Rather, the rule 
is purely administrative in nature, and only applies to NMFS' and the 
Council's internal procedures to determine appropriate ACLs and AMs. If 
adopted, the rule would not add, remove or modify any existing rights 
or obligations of any parties, including business entities of any size. 
A description of the action, why it is being considered, and the legal 
basis for this action are contained in the preamble to this proposed 
rule.
    The proposed rule does not duplicate, overlap, or conflict with 
other Federal rules and is not expected to have any impact on small 
entities, organizations or government jurisdictions as the action is 
primarily administrative in nature and would only establish a mechanism 
for specifying ACLs and AMs for Federal fisheries.
    NMFS will begin specifying ACLs and AMs for each fishery that 
requires them using the proposed notice-and-comment mechanism starting 
in fishing year 2011. When fishery-specific ACLs and AMs are proposed 
through subsequent rulemaking, NMFS will assess each proposed 
specification for compliance with all applicable laws, including any 
relevant impacts on small businesses, organizations and small 
government jurisdictions, and will prepare an initial regulatory 
flexibility analysis for that action, if warranted.
    For these reasons, an initial regulatory flexibility analysis is 
not required and none has been prepared.

List of Subjects in 50 CFR Part 665

    Annual catch limits, Accountability measures, Fisheries, Fishing, 
Western and central Pacific.

    Dated: March 28, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 665 is 
proposed to be amended as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

    1. The authority for part 665 continues to read as follows:

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

    2. In part 665, add a new Sec.  665.4 to read as follows:


Sec.  665.4  Annual catch limits.

    (a) General. For each fishing year, the Regional Administrator 
shall specify an annual catch limit, including any overage adjustments, 
for each stock or stock complex of management unit species defined in 
subparts B through F of this part, as recommended by the Council, and 
considering the best available scientific, commercial, and other 
information about the fishery for that stock or stock complex. The 
annual catch limit shall serve as the basis for invoking accountability 
measures in paragraph (f) of this section
    (b) Overage adjustments. If landings of a stock or stock complex 
exceed the specified annual catch limit in a fishing year, the Council 
will take action in accordance with 50 CFR 600.310(g), which may 
include recommending that the Regional Administrator reduce the annual 
catch limit for the subsequent year by the amount of the overage or 
other measures, as appropriate.
    (c) Exceptions. The Regional Administrator is not required to 
specify an annual catch limit for a management unit species that is 
statutorily excepted from the requirement pursuant to 50 CFR 
600.310(h)(2), or that the Council has identified as an ecosystem 
component species. The Regional Administrator will publish in the 
Federal Register the list of ecosystem component species, and will 
publish any changes to the list, as necessary.
    (d) Annual catch target. For each fishing year, the Regional 
Administrator may also specify an annual catch target that is below the 
annual catch limit of a stock or stock complex, as recommended by the 
Council. When used, the annual catch target shall serve as the basis 
for invoking accountability measures in paragraph (f) of this section.
    (e) Procedures and timing. (1) No later than 60 days before the 
start of a fishing year, the Council shall recommend to the Regional 
Administrator an annual catch limit, including any overage adjustment, 
for each stock or stock complex. The recommended limit should be based 
on a recommendation of the SSC of the acceptable biological catch for 
each stock or stock complex. The Council may not recommend an annual 
catch limit that exceeds the acceptable biological catch recommended by 
the SSC. The Council may also recommend an annual catch target below 
the annual catch limit.
    (2) No later than 30 days before the start of a fishing year, the 
Regional Administrator shall publish in the Federal Register a notice 
of the proposed annual catch limit specification and any associated 
annual catch target, and request public comment.
    (3) No later than the start of a fishing year, the Regional 
Administrator shall publish in the Federal Register and use other 
methods to notify permit holders of the final annual catch limit 
specification and any associated annual catch target.
    (f) Accountability measures. When any annual catch limit or annual 
catch target is projected to be reached, based on available 
information, the Regional Administrator shall publish notification to 
that effect in the Federal Register and shall use other means to notify 
permit holders.
    (1) The notice will include an advisement that fishing for that 
stock or stock complex will be restricted beginning on a specified 
date, which shall not be earlier than 7 days after the date of filing 
the notice for public inspection at the Office of the Federal Register. 
The restriction may include, but is not limited to, closure of the 
fishery, closure of specific areas, changes to bag limits, or 
restrictions in effort. The restriction will remain in

[[Page 17811]]

effect until the end of the fishing year, except that the Regional 
Administrator may, based on a recommendation from the Council, remove 
or modify the restriction before the end of the fishing year.
    (2) It is unlawful for any person to conduct fishing in violation 
of the restrictions specified in the notification issued pursuant to 
paragraph (f)(1) of this section.
    3. In Sec.  665.12 add the definitions of ``Ecosystem component 
species'' and ``SSC'' in alphabetical order to read as follows:


Sec.  665.12  Definitions.

* * * * *
    Ecosystem component species means any western Pacific MUS that the 
Council has identified to be, generally, a non-target species, not 
determined to be subject to overfishing, approaching overfished, or 
overfished, not likely to become subject to overfishing or overfished, 
and generally not retained for sale or personal use.
* * * * *
    SSC means the Scientific and Statistical Committee of the Western 
Pacific Fishery Management Council.
* * * * *
    4. In Sec.  665.15 add a new paragraph (u) to read as follows:


Sec.  665.15  Prohibitions.

* * * * *
    (u) Fail to comply with the restrictions specified in the 
notification issued pursuant to Sec.  665.4(f)(1), in violation of 
Sec.  665.15(f)(2).

[FR Doc. 2011-7622 Filed 3-30-11; 8:45 am]
BILLING CODE 3510-22-P