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, 14761-14764 [E7-5825]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 60 (Thursday, March 29, 2007)]
[Proposed Rules]
[Pages 14761-14764]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5825]


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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.

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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: AT55Tuna@noaa.gov. 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 David--Rostker@omb.eop.gov, 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 David--Rostker@omb.eop.gov 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