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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 665
          - [Docket No. 100803320-1201-01]
          - RIN 0648-AY93

# AGENCY:

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

# ACTION:

Proposed rule; request for comments.

# 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:
      -  Electronic Submission:                          Submit all electronic public comments via the Federal e-Rulemaking Portal                          http://www.regulations.gov;                          or                    
      -  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                               ( print 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                           ( print 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 § 665.4 to read as follows:

§ 665.4 

                            (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                                   ( print 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 § 665.12 add the definitions of “Ecosystem component species” and “SSC” in alphabetical order to read as follows:

§ 665.12 

* * * * *

*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 § 665.15 add a new paragraph (u) to read as follows:

§ 665.15 

* * * * *

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

[FR Doc. 2011-7622 Filed 3-30-11; 8:45 am]

BILLING CODE 3510-22-P