[Federal Register Volume 72, Number 60 (Thursday, March 29, 2007)]
[Proposed Rules]
[Pages 14761-14764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5825]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 070226045-7045-01; I.D. 020107A]
RIN 0648-AT55
Fisheries in the Western Pacific; Western Pacific Pelagic
Fisheries; Management Measures for Bigeye Tuna Pacific-wide and
Yellowfin Tuna in the Western and Central Pacific Ocean
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would implement Amendment 14 to the Fishery
Management Plan for Pelagic Fisheries of the Western Pacific Region
(Pelagics FMP). The amendment responds to the Secretary of Commerce's
determination that overfishing is occurring on bigeye tuna (Thunnus
obesus) Pacific-wide, and on yellowfin tuna (Thunnus albacares) in the
western and central Pacific Ocean (WCPO). The measures in the amendment
are designed to end overfishing of bigeye tuna Pacific-wide and
yellowfin tuna in the WCPO, as required under the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act).
Amendment 14 would establish Federal permitting and reporting
requirements for all U.S. Hawaii-based small boat commercial pelagic
fishermen. Internationally, Amendment 14 would establish for the
Western Pacific Fishery Management Council (Council) an internal
protocol related to its role in making recommendations to the Secretary
on the management of pelagic fish stocks that are managed
internationally, including its participation in U.S. delegations to
meetings of regional fishery management organizations (RFMOs). This
amendment also recommends that NMFS and the Department of State work
through the RFMOs to immediately end overfishing of bigeye tuna
Pacific-wide and WCPO yellowfin tuna, focusing on fisheries with the
greatest impact on Pacific bigeye tuna and WCPO yellowfin tuna, i.e.,
longline and purse seine fisheries.
DATES: Comments on the proposed rule must be received by May 14, 2007.
ADDRESSES: You may submit comments on the proposed rule, identified by
AT55Tuna, to any of the following addresses:
E-mail: [email protected]. Include in the subject line the
following document identifier AT55Tuna. Comments sent via email,
including all attachments, must not exceed a file size of 10 megabytes.
Federal e-Rulemaking portal: www.regulations.gov. Follow
the instructions for submitting comments.
Mail or Hand Delivery: William L. Robinson, Regional
Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Blvd,
Suite 1110, Honolulu, HI 96814-4700.
An Environmental Assessment (EA) was prepared for this amendment.
Copies of the Pelagics FMP and Amendment 14 (containing the EA) may be
obtained from Kitty M. Simonds, Western Pacific Fishery Management
Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to William L. Robinson (see ADDRESSES),
or by e-mail to [email protected], or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR, 808-944-2271.
SUPPLEMENTARY INFORMATION: On December 15, 2004, NMFS notified the
Western Pacific and Pacific Fishery Management Councils that
overfishing was occurring on bigeye tuna Pacific-wide (69 FR 78397,
December 30, 2004). On March 16, 2006, NMFS notified the Western
Pacific Council that overfishing was occurring on western and central
Pacific Ocean (WCPO) yellowfin tuna (71 FR 14837, March 24, 2006). As
required by the Magnuson-Stevens Act, the Councils were requested to
take appropriate action to end overfishing. Pelagics FMP Amendment 14
contains the Western Pacific Council's recommended actions to end
overfishing for both stocks.
According to the guidelines for National Standard 1 of the
Magnuson-Stevens Act (50 CFR 600.310), fishery stock status is assessed
with respect to two status determination criteria, one of which is used
to determine whether a stock is ``overfished,'' and the second of which
is used to determine if the stock is subject to ``overfishing.'' A
stock is considered to be overfished if its biomass falls below the
minimum stock size threshold (MSST). Overfishing means that fishing is
occurring at a rate or level that jeopardizes the capacity of a stock
or stock complex to produce maximum sustainable yield (MSY) on a
continuing basis. When a stock is not in an overfished condition, the
maximum fishing mortality threshold (MFMT) is equal to the fishing
mortality associated with MSY (FMSY). The latest stock
assessments for bigeye tuna in the Pacific and WCPO yellowfin tuna have
concluded that the biomass of neither stock is below their respective
MSST. However, the assessments used as a basis for the overfishing
determinations (conducted in 2003 and 2004 for Pacific bigeye tuna and
2005 and 2006 for WCPO yellowfin tuna) indicated that the then-current
level of fishing mortality did exceed the stocks' respective MFMTs.
Consequently, NMFS determined that overfishing was occurring on the
Pacific-wide stock of bigeye tuna and on the WCPO stock of yellowfin
tuna.
Bigeye and yellowfin tuna are highly migratory species, and occur
in the waters of multiple nations and the high seas. Consequently, they
are targeted by fishing fleets of several nations, including the United
States of America (U.S.A.). Until recently, the majority of bigeye tuna
in the Pacific Ocean was caught by longliners, primarily for the
Japanese sashimi market. During the last 10 years, however, catches of
bigeye tuna by purse seiners have increased considerably. Purse seine-
caught bigeye tuna are taken primarily when purse seiners targeting
skipjack and yellowfin tuna set their nets around fish aggregating
devices (FADs). Smaller amounts are also taken by handline and troll
vessels. Yellowfin tuna in the WCPO are caught primarily by purse
seiners. WCPO longline, pole-and-line, handline and troll fisheries
also catch substantial amounts of yellowfin tuna.
In 2004, estimated bigeye tuna catches by U.S. commercial fisheries
under the Council's authority amounted to 5,163 mt, or 2.3 percent of
the 2004 total Pacific-wide bigeye tuna catch. In 2004, estimated
yellowfin tuna catches by U.S. commercial fisheries under the Council's
authority amounted to 2,383 mt, or about 0.35 percent of the 2004 total
Pacific-wide yellowfin tuna catch, and 0.58 percent of the yellowfin
tuna caught in the WCPO. These figures indicate that the capacity for
unilateral action by the U.S.A. to prevent or end overfishing is
limited, as is the capacity
[[Page 14762]]
for any action taken by the Council to end overfishing on these fish
stocks.
In response to concerns about the condition of the bigeye tuna
stock in the Eastern Pacific Ocean, the Inter-American Tropical Tuna
Commission (IATTC) adopted management measures, commencing with
temporal closures of purse-seine fishing and bigeye tuna catch limits
for longline vessels. Within the area of competence of the IATTC, the
longline fleets of China, Japan, Korea, and Chinese Taipei were
allocated specific catch limits. Other member nations of the IATTC were
allocated bigeye tuna catch limits equivalent to their respective 2001
catches. The U.S. longline fleet-wide bigeye tuna limit was set at 150
mt, although this quota will increase to 500 mt in 2007. (The IATTC's
June 2006 resolution allows for a quota of 500 mt, and the U.S.
implementing regulations are still being reviewed for implementation in
the near future.)
The U.S.A. is a Cooperating Non-member of the Commission on the
Conservation and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean (WCPFC). (Although the implementing
legislation for U.S. membership in the WCPFC has been signed, the
U.S.A. has not formally ratified the Convention on the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central
Pacific Ocean (Convention) or become a member of the Commission.) The
WCPFC, established under the Convention, adopted conservation and
management measures for WCPO yellowfin tuna and WCPO bigeye tuna in
2005 and 2006. The measures include national limits on bigeye tuna
catches by longline fisheries in the Convention area (which overlaps
with the area of competence of the IATTC), based on such members'
average 2001-04 catches, or for China and the U.S.A., based on their
2004 catches. These limits will remain in effect through 2008. WCPFC
cooperating non-members, and participating territories (together
abbreviated as CCMs) that caught less than 2,000 mt by longlines in
2004, may take up to 2,000 mt each year from 2006-08.
For yellowfin tuna, for which the main source of fishing mortality
in the WCPO is purse seine fishing, the WCPFC established measures for
purse seiners within the Convention Area (in the area between 20[deg] N
and 20[deg] S latitude). Starting in 2006, CCMs are required to take
necessary measures to ensure purse seine effort levels do not exceed
either 2004 levels, or the average of 2001 to 2004 levels, in waters
under their national jurisdiction. Starting in 2007, CCMs must limit
effort on the high seas by their purse seine vessels to those same
baseline levels. Also beginning n 2007, CCMs must limit the fishing
capacity of their fisheries other than longline and tropical purse
seine fisheries to the same baseline levels. The adopted measures also
require CCMs to develop management plans for the use of FADs in waters
under national jurisdiction and on the high seas.
The 2004 overfishing determination for Pacific-wide bigeye tuna
relied on assessments from two approaches: one assuming a single
Pacific-wide stock (assessment completed in July 2003), and the other
assuming two stocks, one in the WCPO, corresponding to the area of
competence of the WCPFC (assessment completed in July 2004), and the
other in the eastern Pacific Ocean (EPO), corresponding to the area of
competence of the IATTC (assessment completed in May 2004). The
overfishing determinations relied on assessment results from each of
these approaches, but did not rely on any assumptions or conclusions
about stock structure. The July 2004 assessment for the WCPO stock
indicated a probability of at least 67 percent that the recent fishing
mortality rate exceeded the fishing mortality rate associated with MSY,
known as the Maximum Fishing Mortality Threshold (MFMT). The May 2004
assessment for the EPO stock indicated that in all scenarios
considered, the recent fishing mortality rate exceeded the MFMT. The
results of the 2003 assessment for the Pacific-wide stock were similar
in that the recent fishing mortality rate exceeded the MFMT. The
results from the 2003 and 2004 assessments showed that the level of
fishing mortality Fcurrent was at or above the fishing
mortality at MSY (FMSY), i.e., Fcurrent/FMSY
= 0.90-1.30 for bigeye tuna Pacific-wide. The latest assessment for
bigeye tuna in the WCPO estimated, in the base case model, that
Fcurrent/FMSY = 1.32 (Fcurrent was
taken to be the 2001-04 average fishing mortality-at-age). The
probability of Fcurrent being greater than FMSY
was estimated to be 100 percent. The Pacific-wide stock was found not
to be overfished, but could become so if levels of fishing mortality
are not reduced.
In 2005, the Scientific Committee of the WCPFC reviewed a stock
assessment for the WCPO stock of yellowfin tuna that indicated that the
stock was likely subject to overfishing. The then-current rate of
fishing mortality Fcurrent was found to be likely in excess
of the MFMT, with an Fcurrent/FMSY = 1.0 - 2.33.
The latest assessment for yellowfin tuna in the WCPO, conducted in 2006
estimated, in the base case model, that Fcurrent/FMSY
= 1.11 (Fcurrent was taken to be the 2001-04 average fishing
mortality-at-age). The probability of Fcurrent being greater
than FMSY was estimated to be 73 percent. The WCPO stock was
found not to be overfished, but could become so if levels of fishing
mortality are not reduced.
Because bigeye and yellowfin tuna are taken by handline and troll
vessels, Pelagics FMP Amendment 14 contains measures to assess the
impact of small boat fisheries in Hawaii on these species, as well as
other pelagic fishes, in the WCPO. Specifically, the Council
recommended that NMFS enhance the data collection for U.S. Hawaii-based
small boat fishing through mandatory Federal permits and data-
collection programs (logbooks) for commercial pelagic fisheries, and
improved surveys and voluntary reporting for recreational pelagic
fisheries.
Pelagics FMP Amendment 14 acknowledges that the Council recommended
a control date of June 2, 2005, for entry into the small boat
commercial pelagic fisheries in U.S. EEZ waters around Hawaii. On
August 15, 2005, NMFS published a notice of this control date (70 FR
47781). The amendment also acknowledges that the Council recommended a
control date of June 2, 2005, for entry into domestic longline and
purse seine fisheries in U.S. EEZ waters in the western Pacific. On
August 15, 2005, NMFS published a notice of this control date (70 FR
47782). These control dates were implemented to notify the public that
future participation in these fisheries was not guaranteed if the
Council and NMFS developed and implemented limited access programs for
the fisheries. Establishment of these control dates does not, however,
commit the Council or NMFS to any particular management regime or
criteria for entry into these fisheries.
The international scope of the overfishing situation for bigeye
tuna Pacific-wide and WCPO yellowfin tuna indicates that measures to
meaningfully address the problem must be addressed through
international institutions. Unilateral management action for Council-
managed pelagic fisheries could help reduce the fishing mortality, but
would be insufficient to end overfishing. Thus, international measures
are a fundamental component of FMP Amendment 14 to end overfishing on
these tuna stocks.
Internationally, Pelagics FMP Amendment 14 contains several
proposed non-regulatory measures and recommendations, including the
[[Page 14763]]
establishment for the Council of an internal protocol related to its
role in making recommendations to the Secretary on the management of
pelagic fish stocks that are managed internationally (including steps
the Council would take to monitor the status of internationally managed
fish stocks, participate in U.S. delegations in meetings with RFMOs,
and follow the activities of RFMOs). The Council also recommends that
NMFS and the Department of State work through the RFMOs to immediately
end overfishing of bigeye tuna Pacific-wide and WCPO yellowfin tuna,
focusing on fisheries with the greatest impact on Pacific bigeye tuna
and WCPO yellowfin tuna, i.e., longline and purse seine fisheries.
Specific international recommendations include plans for reducing
longline fishing capacity, reducing purse seine fishing capacity and
restrictions on the use of FADs while purse seine fishing,
establishment and gradual reduction of national quotas, and other
measures.
This proposed rule is consistent with section 406 of the Magnuson-
Stevens Reauthorization Act (MSRA, Public Law 109-479), which added a
new subsection 304(i) to the MSA. Section 304(i) requires the Secretary
to, among other things, in cooperation with the Secretary of State,
immediately take appropriate action at the international level to end
overfishing for fisheries that the Secretary has determined (a) to be
overfished or approaching a condition of being overfished due to
excessive international fishing pressure, and (b) for which there are
no management measures to end overfishing under an international
agreement to which the United States is a party. NMFS has made a
determination that both of these conditions are present, and these
measures are, therefore, proposed pursuant to subsection 304(i).
This proposed rule recognizes that Pacific bigeye tuna and WCPO
yellowfin tuna are exploited in waters under US jurisdiction, waters
under the jurisdiction of other nations, and on the high seas by
foreign fishing fleets along with the U.S. fleet. U.S. fisheries
account for only a small percentage of the Pacific bigeye and WCPO
yellowfin tuna harvests. Thus, fishing mortality of these tuna stocks
stems predominantly from non-U.S. fleets in the region, and any
unilateral management action to end overfishing by the U.S.A. would
have a proportionally small effect in terms of reducing fishing
mortality and ending overfishing. The Council has developed
recommendations in Amendment 14 for domestic regulations to address the
relative impact of U.S. fishing vessels on the affected stocks. Also in
Amendment 14, the Council proposes to recommend, to NMFS and the
Secretary of State, international actions to end overfishing in the
fisheries. NMFS, in collaboration with the Councils and State
Department, is working to end overfishing through the international
bodies governing the conservation and management of Pacific bigeye and
WCPO yellowfin tunas.
Existing Pelagics FMP measures for bigeye Pacific-wide and WCPO
yellowfin tuna have been implemented to address the relative impact of
U.S. fishing vessels within the meaning of MSA Section 304(i)(2)(A).
These measures include limited access programs, mandatory data
collection, scientific observers, vessel size limits and gear
specifications, and a vessel monitoring system. The additional domestic
measures, proposed in this rule, would establish permit and reporting
requirements for Hawaii-based small-boat pelagic fisheries to improve
the quantity and quality of information on the harvest of Pacific
bigeye and WCPO yellowfin tunas.
Bigeye tuna is also a management unit species under the Pacific
Fishery Management Council's Fishery Management Plan for U.S. West
Coast Fisheries for Highly Migratory Species (HMS FMP). The Pacific
Council has worked with the Western Pacific Council to develop a
response to the determination of overfishing on bigeye tuna Pacific-
wide. Amendment 1 to the Pacific Council's HMS FMP is consistent with
relevant elements of Pelagics FMP Amendment 14 to end overfishing of
bigeye tuna.
Comments on this proposed rule must be received by May 14, 2007.
Public comment is specifically sought regarding the proposed Federal
data collection requirements for small boat commercial pelagic
fishermen in Hawaii, including the necessity of, and possible
alternative means for, the proposed data collection program in light of
existing programs collecting data for the same fisheries. To be
considered, comments must be received by close of business on May 14,
2007, not postmarked or otherwise transmitted by that date.
In addition to soliciting public comments on this proposed rule,
NMFS is soliciting comments on proposed FMP Amendment 14 through April
16, 2007 (as stated in the Notice of Availability published on February
15, 2007, 72 FR 7385). Public comments on this proposed rule, if
received by April 16, 2007, will also be considered in the approval/
disapproval decision for Amendment 14. Comments received after that
date will not be considered in the approval/disapproval decision for
Amendment 14, but will be considered for this proposed rule.
Classification
At this time, NMFS has not determined that Pelagics FMP Amendment
14, which this proposed rule would implement, is consistent with the
national standards of the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable laws. NMFS, in making that
determination, will take into account the data, views, and comments
received during the comment period.
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.
The analysis follows:
The statutory basis for this rule is the Magnuson-Stevens
Fishery Conservation and Management Act (MSA). The objective of this
rulemaking is to address overfishing of Pacific bigeye tuna, and
yellowfin tunas in the WCPO by improving databases required for more
accurate assessments. The rule will directly impact 1,646 vessels
comprising the entire Hawaii-based commercial pelagic small boat
fisheries. Therefore, a substantial number (100 percent) of the
affected universe of small entities will be impacted by this
rulemaking. The fishery includes troll, handline, offshore handline,
and pole-and-line vessels. All vessels participating in this fishery
are considered to be small entities under the current Small Business
Administration definition of small fish-harvesting businesses (gross
receipts not in excess of $ 4.0 million). Therefore, there are no
disproportionate impacts between small and large entities under this
rule. In addition, there are no disproportionate economic impacts
among vessels by gear, geographic area fished or home-ported, or
vessel characteristics resulting from this rulemaking. The analysis
of economic impacts relies on changes in net revenue as a proxy for
profitability. Each permit is anticipated to cost approximately $80
annually in the form of an administrative fee representing from 2%
to less than 1% of annual per vessel revenues by gear type. Expected
economic costs per vessel resulting from implementation of this rule
is $107, including opportunity cost ($25 per hour x 1.09 hours)
reflecting the individual annual burden hours of filling out and
submitting the logbook. Using an average annual revenue per vessel
of $5,496, the cost to the vessel would be approximately 1.75% of
annual revenue. Based on this small relative decrease in net
revenues resulting from this rulemaking, NMFS has concluded that
this action will not have a significant economic impact on a
substantial number of small
[[Page 14764]]
entities for the purposes of the Regulatory Flexibility Act. Based
on this determination, no initial regulatory flexibility analysis
has been prepared.
This proposed rule contains a collection-of-information requirement
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). This requirement has
been submitted to OMB for approval. The public reporting burden for
these requirements is estimated to be 30 min for a new permit
application, and 20 min for completing a fishing logbook each day. Each
estimate includes time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
Public comment is sought regarding whether (a) this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility, (b) the accuracy of the burden estimates, (c)
ways to enhance the quality, utility, and clarity of the information to
be collected; and (d) ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to William
L. Robinson (see ADDRESSES), and email to [email protected] or
fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 665
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaii, Hawaiian natives, Northern Mariana Islands,
Pacific Remote Island Areas, Reporting and recordkeeping requirements.
Dated: March 23, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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 citation for part 665 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 665.12, add the definition of ``Hawaii non-longline
pelagic permit'' to read as follows:
Sec. 665.12 Definitions.
* * * * *
Hawaii non-longline pelagic permit means the permit required by
Sec. 665.21 to use non-longline fishing gear to fish for Pacific
pelagic management unit species in EEZ waters around Hawaii, the
resulting catch of which either is, or is intended to be, sold,
bartered, or traded.
* * * * *
3. In Sec. 665.21, add a new paragraph (o) to read as follows:
Sec. 665.21 Permits.
* * * * *
(o) The owner of any vessel used to fish for Pacific pelagic
management unit species using non-longline gear in EEZ waters around
Hawaii, the resulting catch of which either is, or is intended to be,
sold, bartered, or traded, must have a valid Hawaii non-longline
pelagic permit issued for the vessel.
* * * * *
5. In Sec. 665.22, add new paragraph (uu) to read as follows:
Sec. 665.22 Prohibitions.
* * * * *
(uu) Engage in fishing using non-longline gear for Pacific pelagic
management unit species in EEZ waters around Hawaii without a valid
Hawaii non-longline pelagic permit as required under Sec. 665.21(o).
* * * * *
[FR Doc. E7-5825 Filed 3-28-07; 8:45 am]
BILLING CODE 3510-22-S