[Federal Register Volume 89, Number 38 (Monday, February 26, 2024)]
[Proposed Rules]
[Pages 14036-14039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03778]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 240220-0053]
RIN 0648-BM01


Pacific Island Fisheries; Catch and Retention Limits for Striped 
Marlin in the Western and Central Pacific Ocean North of the Equator

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes a catch limit of 457 metric tons (t) for Western 
and Central North Pacific Ocean (WCNPO) striped marlin caught by U.S. 
fishing vessels in the Commission for the Conservation and Management 
of Highly Migratory Fish Stocks in the Western and Central Pacific 
Ocean (Commission or WCPFC) Convention area north of the Equator and 
west of 150[deg] W longitude (the action area) and a retention limit of 
443 t for U.S. fishing vessels with Hawaii longline limited entry 
permits. If the retention limit is projected to be reached, NMFS will 
prohibit retention of striped marlin caught in the WCNPO by Hawaii 
longline vessels for the calendar year. Action is required under 
Magnuson-Stevens Fishery Conservation and Management Act Section 304(i) 
to address U.S. fishing vessels' relative impact on this 
internationally managed stock, which is overfished and experiencing 
overfishing.

DATES: NMFS must receive comments by March 27, 2024.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-NMFS-2022-0148, by either of the following methods:
    <bullet> Electronic Submission: Submit all electronic comments via 
the Federal e-Rulemaking Portal. Go to http://www.regulations.gov and 
enter NOAA-NMFS-2022-0148 in the Search box, click the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    <bullet> Mail: Send written comments to Sarah Malloy, Acting 
Regional Administrator, NMFS Pacific Islands Regional Office (PIRO), 
1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818.
    Instructions: NMFS may not consider comments sent by any other 
method, to any other address or individual, or received after the end 
of the comment period. All comments received are a part of the public 
record and will generally be posted for public viewing on https://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).
    The Western Pacific Fishery Management Council (Council) and NMFS 
prepared an environmental assessment (EA) that supports this proposed 
rule. The EA is available at https://www.regulations.gov, or from the 
Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-
8220, or https://www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Savannah Lewis, PIRO Sustainable 
Fisheries, 808-725-5144.

SUPPLEMENTARY INFORMATION: NMFS and the Council manage U.S. commercial 
fishing for Pelagic Management Unit Species (PMUS) under the Fishery 
Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region 
(FEP) and implementing Federal regulations. Although the FEP indicates 
that PMUS have statutory exemptions from annual catch limits (ACL), the 
Magnuson-Stevens Act authorizes the Council to determine ACLs or other 
catch limits for PMUS if such actions are deemed appropriate and 
consistent with the Magnuson-Stevens Act and other statutory mandates. 
Magnuson-Stevens

[[Page 14037]]

Act Sec.  304(i) provides that where a fishery is overfished or 
approaching a condition of being overfished due to excessive 
international fishing pressure for which there are no management 
measures nor an international agreement to end overfishing, the 
appropriate Council is to develop recommendations for domestic 
regulations to address the relative impact of U.S. fishing vessels on 
the stock.
    Striped marlin (Kajikia audax) are an internationally managed, non-
target species often caught in fisheries targeting tuna and retained 
due to their economic value. In a 2019 stock assessment, the 
Commission, of which the United States is a member, determined that 
WCNPO striped marlin were overfished and experiencing overfishing.
    To address the Council's obligations under Section 304(i) of the 
Magnuson-Stevens Act, the Council took action at their 195th meeting in 
December 2022. The Council recommended and NMFS proposes domestic 
regulations to implement a 457 t U.S. catch limit for WCNPO striped 
marlin and a domestic retention limit of 443 t. The proposed 457 t 
domestic catch limit is consistent with the international catch limit 
for the United States based on the WCPFC Conservation and Management 
Measure (CMM) 2010-01, ``Conservation and Management Measure for North 
Pacific Striped Marlin.'' Following the terms of the CMM, the U.S. 
catch limit was determined by calculating 20 percent of the highest 
annual U.S. catch of striped marlin reported from 2000-2003; the 
highest reported catch was 571 t, so a 20 percent reduction is 456.8 t, 
or 457 t.
    Hawaii-based longline fisheries catch 97 percent or more of the 
total U.S. striped marlin landings and are monitored in-season. Other 
U.S. fisheries that catch striped marlin, including Hawaii-based troll 
and handline fisheries, catch less than 3 percent of the total annual 
U.S. catch and lack real-time monitoring during the fishing season. To 
ensure that the proposed catch limit is not exceeded, the Council 
recommended and NMFS proposes a retention limit of 443 t, or 97 percent 
of the catch limit, for any U.S. fishing vessel with a Hawaii longline 
limited entry permit issued under 50 CFR 665.801(b). This limit ensures 
that when troll and handline catches are finalized after the season 
ends, the total U.S. catch of WCNPO striped marlin will not exceed the 
457 t catch limit.
    Under the proposed rule, striped marlin caught in the action area 
by a vessel holding a Hawaii limited entry longline permit issued under 
50 CFR 665.801(b), including vessels that also hold an American Samoa 
longline limited entry permit or other permit, would be counted toward 
the proposed catch and retention limits. Currently, WCNPO striped 
marlin catch on the high seas (outside the 200 nautical miles (nm), or 
370.4 km, exclusive economic zone adjacent to Hawaii) by fishing 
vessels with American Samoa longline limited entry permits are 
attributed to American Samoa.
    With this proposed rule, all retained catch of WCNPO striped marlin 
in the action area by vessels with both Hawaii longline limited entry 
permits and American Samoa limited entry permits would be counted 
toward the proposed domestic 457 t catch and 443 t retention limit. 
NMFS proposes this change to ensure that all U.S. catch of this stock 
is managed under the proposed domestic catch limit, as no separate 
limit for American Samoa currently exists. By itself, this limit is not 
expected to end overfishing, which is primarily the result of 
international fishing pressure. Additional international measures 
through the WCPFC will be necessary to end overfishing and rebuild the 
stock.
    If NMFS projects, based on vessel logbook, landing and other 
available information, that the retention limit will be reached, the 
retention of striped marlin caught by U.S. longline vessels holding a 
Hawaii limited entry longline permit issued under 50 CFR 665.801(b) in 
the action area will be prohibited for the remainder of the calendar 
year. A retention prohibition would go into effect no earlier than 7 
days after NMFS publishes a no-retention date notice in the Federal 
Register.
    As indicated above, this rule alone is not expected to end 
overfishing on WCNPO striped marlin, which must be addressed at the 
international level. To that end, Section 304(i) requires the Secretary 
of Commerce, in cooperation with the Secretary of State, to take 
immediate and appropriate action at the international level to end 
overfishing. The U.S. delegation has brought recommendations to the 
WCPFC and continues to pursue revised international measures. As these 
international negotiations continue, the U.S. domestic responsibility 
under Section 304(i) is to address the relative impact of U.S. fishing 
vessels on the stock.
    Neither the Magnuson-Stevens Act nor its implementing regulations 
define relative impact. The regulations do, however, offer guidance on 
how to assess relative impacts in the international overfishing 
context. Specifically, the National Standard 1 (Optimal Yield) 
guidelines provide that the agency may consider such factors as 
domestic measures already in place, estimates of a nation's landings, 
estimates of a nation's mortality contributions, and management history 
of a nation, although these factors are not exhaustive. In evaluating 
the relative impacts of U.S. vessels to the striped marlin stock here, 
we recognize that no single nation's management actions can end the 
overfished status of this stock. We have taken into account the 
National Standard 1 factors in assessing the level of catch by U.S. 
vessels relative to the historical catch of other nations landing 
striped marlin along with other existing management measures expected 
to decrease striped marlin catch (e.g., wire leader prohibition). Until 
the WCPFC adopts management measures that can meaningfully address the 
status of the striped marlin, we believe this proposed catch and 
retention limit are consistent with our obligations under the Magnuson-
Stevens Act and WCPFC because they reflect the terms of CMM 2010-02 as 
applied to U.S. striped marlin catch.
    International negotiations at the WCPFC have resulted in adoption 
of a rebuilding plan for this stock which requires rebuilding to 20 
percent of unfished biomass with at least 60 percent probability by 
2034. The rebuilding plan currently does not contain catch limits, 
although it acknowledges that catch reductions by all member nations 
are required to achieve the rebuilding target. Disagreement over 
international conservation measures and delayed stock assessments have 
hindered progress at the international level. Ahead of negotiations on 
catch limits at WCPFC, we recognize that any substantial changes to the 
catch limits of U.S. fishermen could create a conservation burden on 
U.S. fishermen that fishermen from other nations may not face. 
Therefore, the agency is proposing a catch limit that complies with 
existing international guidance without imposing additional burdens on 
U.S. fishing interests.
    NMFS will consider public comments on this proposed rule and will 
announce the final rule in the Federal Register. NMFS must receive 
comments on this proposed action by the date provided in the DATES 
heading. NMFS may not consider comments postmarked or otherwise 
transmitted after that date. Regardless of the proposed rule, all other 
existing management measures would continue to apply in these 
fisheries.

[[Page 14038]]

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 FEP, Magnuson-Stevens Act Section 304(i) and other 
provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.

Certification of Finding of No Significant Impact on Substantial Number 
of Small Entities

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the attached proposed rule, issued under the 
authority of the Magnuson-Stevens Act, will not have a significant 
economic impact on a substantial number of small entities.
    The WCNPO striped marlin stock is overfished and experiencing 
overfishing due to excessive international fishing pressure. NMFS 
proposes to implement an annual catch limit of 457 t and retention 
limit of 443 t for striped marlin caught in the action area. The 457 t 
catch limit would apply to vessels with Hawaii longline limited entry 
permits as well as to Hawaii troll and handline vessels catching 
striped marlin in the action area. The retention limit would only apply 
to vessels with Hawaii longline limited entry permits wherein retention 
of striped marlin by these vessels would be prohibited if the 443 t 
retention limit were projected to be reached. The troll and handline 
fisheries historically catch less than 3 percent of the total U.S. 
striped marlin catch and have a delay in reporting that makes it 
impossible to monitor catch in-season, so the retention limit would not 
apply to these troll and handline vessels. The retention limit on 
Hawaii longline catch is intended to prevent the three fisheries 
combined from reaching the catch limit. The proposed action is needed 
to address the Magnuson-Stevens Act section 304(i) requirement to 
develop recommendations for domestic regulations to address the 
relative impact of fishing vessels of the United States on this 
internationally managed, overfished stock lacking effective 
international management measures to end overfishing.
    The proposed action would apply to up to 164 vessels with Hawaii 
longline limited entry permits. In 2021, 146 vessels participated in 
the Hawaii deep-set longline fishery, with annual fleet revenue of 
$108.5 million and average annual per-vessel revenues of $743,150. In 
2021, 17 vessels participated in the Hawaii shallow-set fishery, with 
annual fleet revenue of $4.7 million and average annual per-vessel 
revenues of $276,470 (WPFMC, 2022). There are no anticipated upfront 
costs associated with the proposed action for Hawaii permitted longline 
fishery participants and no direct impacts to longline fisheries if 
longline catch of striped marlin does not reach the retention limit, as 
they would be able to retain their striped marlin catch. However, the 
proposed action may lead to a loss in revenue for these fishery 
participants if the retention limit is reached. The Hawaii-based 
longline fishery targets tuna (deep-set) and swordfish (shallow-set); 
striped marlin is a non-target species for this fishery. However, 
because striped marlin has market value, longline fishermen generally 
retain striped marlin catch. Using the 2021 average price per pound for 
striped marlin and average annual landings over the 2016-2020 time 
frame, NMFS expects that the value of striped marlin from the action 
area would be $2 million annually. Between 2014 and 2020, the Hawaii 
longline fleet has exceeded the 443 t retention limit only once with a 
catch of 447 t in 2019. Had the retention limit been in place that 
year, at $2.54 per pound, the associated revenue loss would be an 
estimated $22,400 fleetwide. With 147 active vessels as of August 2022, 
the estimated expected loss per vessel would have been $152 per vessel, 
which likely would have been less than 0.1 percent of annual landed 
value among most, if not all, vessels. For most years, NMFS anticipates 
that the longline fishery would not exceed the retention limit and 
therefore anticipates little to no economic impact from the proposed 
rule to this fishery overall. The proposed action would also apply to 
the hundreds of vessels that participate in the Hawaii handline and 
troll fisheries through the catch limit, but these fisheries would not 
be directly affected by the proposed action, as neither the retention 
limit nor retention prohibition would apply to them.
    NMFS has established a small business size standard for businesses, 
including their affiliates, whose primary industry is commercial 
fishing (see 50 CFR 200.2). A business primarily engaged in commercial 
fishing, North American Industry Classification System (NAICS) code 
11411, is classified as a small business if it is independently owned 
and operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide. Based on available 
information, NMFS has determined that all affected entities are small 
entities under the NMFS standard, as they are engaged in the business 
of fish harvesting, independently owned or operated, are not dominant 
in their field of operation, and have annual gross receipts not in 
excess of $11 million. Even though this proposed action may apply to a 
substantial number of vessels, the implementation of this action would 
not result in significant adverse economic impact to individual 
vessels.
    NMFS anticipates no change in fishing activity from the proposed 
action, independent of the retention limit being reached (i.e., area 
fished, number of vessels and trips, number and depth of hooks, or 
deployment techniques) because striped marlin are not a target species. 
The proposed action does not duplicate, overlap, or conflict with other 
Federal rules and is not expected to have significant impact on small 
organizations or government jurisdictions. Furthermore, there would be 
little, if any, disproportionate adverse economic impacts from the 
proposed action based on gear type or relative vessel size. The 
proposed action also will not place a substantial number of small 
entities, or any segment of small entities, at a significant 
competitive disadvantage to large entities.
    For the reasons above, NMFS does not expect the proposed action to 
have a significant economic impact on a substantial number of small 
entities. As such, an initial regulatory flexibility analysis is not 
required and none has been prepared.

List of Subjects in 50 CFR 665

    Fisheries, Fishing, Hawaii, Longline, Limited access permit, 
Pacific Islands, Western Pacific.

    Dated: February 20, 2024.
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 amend 50 
CFR part 665 as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for 50 CFR part 665 continues to read as 
follows:

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

0
2. Amend Sec.  665.800 by adding, in alphabetical order, the definition 
of ``Non-retention date'' to read as follows:


Sec.  665.800  Definitions.

* * * * *

[[Page 14039]]

    Non-retention date means the date upon which the Regional 
Administrator projects that a retention limit will be exceeded; 
retention of a species identified under Sec.  665.813 is prohibited as 
specified under Sec.  665.802, until the end of the fishing year.
* * * * *
0
3. Amend Sec.  665.802 by adding paragraph (p) to read as follows:


Sec.  665.802   Prohibitions.

* * * * *
    (p) Fail to immediately release any striped marlin captured after 
the non-retention date in the Pacific Ocean north of the Equator 
(0[deg] lat.) and west of 150[deg] W longitude by a vessel registered 
for use under a longline permit issued under Sec.  665.801(b), in 
violation of Sec.  665.813(k).
* * * * *
0
4. Amend Sec.  665.813 by redesignating paragraph (k) as paragraph (l) 
and adding a new paragraph (k) to read as follows:


Sec.  665.813   Western Pacific longline fishing restrictions.

* * * * *
    (k) Striped marlin retention limit. (1) There is a catch limit of 
457 metric tons of striped marlin each year from the Pacific Ocean 
north of the Equator (0[deg] lat.) and west of 150[deg] W longitude. 
There is a retention limit of 443 metric tons by vessels registered for 
use under a longline permit issued under Sec.  665.801(b).
    (2) NMFS will monitor striped marlin catch with respect to the 
limits established under paragraph (k)(1) of this section using 
longline landings, logbook, and other available information.
    (3) When the retention limit is projected to be reached, based on 
analyses of available information in paragraph (k)(2) of this section, 
the Regional Administrator shall publish notification to that effect in 
the Federal Register that includes a specified non-retention date that 
is not earlier than 7 days after the Federal Register publication date 
until the end of the calendar year in which the retention limit was 
projected to be reached.
    (4) Once a notification is made pursuant to paragraph (k)(3) of 
this section, a fishing vessel registered for use under a longline 
permit issued under Sec.  665.801(b) may not retain on board, 
transship, or land striped marlin captured by longline gear in the 
Pacific Ocean north the Equator (0[deg] lat.) and west of 150[deg] W 
longitude, except striped marlin retained prior to the non-retention 
date. Any striped marlin already on board upon the effective non-
retention date may be retained on board, transshipped, and/or landed, 
to the extent authorized by applicable laws and regulations, provided 
that the striped marlin is landed within 14 days after the effective 
non-retention date.
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[FR Doc. 2024-03778 Filed 2-23-24; 8:45 am]
BILLING CODE 3510-22-P