2011-16040. Fisheries in the Western Pacific; Mechanism for Specifying Annual Catch Limits and Accountability Measures

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule establishes the procedures and timing for specifying annual catch limits (ACLs) and accountability measures (AMs) for western Pacific fisheries. The final rule is intended to help NMFS end and prevent overfishing, rebuild overfished stocks, and achieve optimum yield.

DATES:

This rule is effective July 27, 2011.

ADDRESSES:

Copies of the Fishery Ecosystem Plans (FEP) for the Pacific Remote Islands Areas (PRIA), American Samoa, Mariana Archipelago, Hawaii, and western Pacific pelagic fisheries are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, 808-522-8220, fax [phone], or http://www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT:

Jarad Makaiau, NMFS PIR, Sustainable Fisheries, 808-944-2108.

SUPPLEMENTARY INFORMATION:

The Magnuson-Stevens Fishery Conservation and Management Act requires that fishery management plans 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. The requirements for ACLs and AMs do 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. ACLs and AMs are also not required for species classified in a fishery management plan as “ecosystem component species,” which are generally 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.

This final rule implements the mechanism that NMFS will use to specify ACLs (possibly including multi-year ACLs) and AMs in western Pacific fisheries. Briefly, the Council will recommend an ACL to NMFS at least two months before the start of a fishing year. The Council will base its recommendation on the SSC's fishing level recommendation for the subject species or fishery, and may not exceed it. At least one month before the fishing year starts, NMFS will request public comment on the proposed ACL. Before the start of the fishing year, NMFS will notify fishermen and the public of the final ACL specification.

NMFS will monitor 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.

This rule establishes only the procedures for specifying ACLs and AMs. The Council and NMFS will provide the public with opportunities to review and comment on the ACLs and AMs for each fishery at the time they are proposed.

Comments and Responses

On March 31, 2011, NMFS published a proposed rule and request for public comment (76 FR 17808). The public comment period ended on May 16, 2011. Additional background information on this final rule is found in the preamble to the proposed rule and is not repeated here. NMFS received two comments that were generally supportive of this action.

Changes From the Proposed Rule

No changes were made from the proposed rule.

Classification

The Administrator, Pacific Islands Region, NMFS, determined that the FEP amendments that establish a mechanism for specifying ACLs and AMs are necessary for the conservation and management of western Pacific fisheries, and that they are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final 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 during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

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 specified 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.

List of Subjects in 50 CFR Part 665

• Accountability measures
• Annual catch limits
• Fisheries
• Fishing
• Western and central Pacific

Dated: June 21, 2011.

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 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., 50 CFR part 600.310.

2. In subpart A, add § 665.4 to read as follows:

§ 665.4

Annual catch limits.

(a) General. For each fishing year, the Regional Administrator shall specify an annual catch limit, including any overage adjustments, for each stock or stock complex of management unit species defined in subparts B through F of this part, as recommended by the Council, and considering the best available scientific, commercial, and other information about the fishery for that stock or stock complex. The annual catch limit shall serve as the basis for invoking accountability measures in paragraph (f) of this section.

(b) Overage adjustments. If landings of a stock or stock complex exceed the specified annual catch limit in a fishing year, the Council will take action in accordance with 50 CFR 600.310(g), which may include recommending that the Regional Administrator reduce the annual catch limit for the subsequent year by the amount of the overage or other measures, as appropriate.

(c) Exceptions. The Regional Administrator is not required to specify an annual catch limit for a management unit species that is statutorily excepted from the requirement pursuant to 50 CFR 600.310(h)(2), or that the Council has identified as an ecosystem component species. The Regional Administrator will publish in the Federal Register the list of ecosystem component species, and will publish any changes to the list, as necessary.

(d) Annual catch target. For each fishing year, the Regional Administrator may also specify an annual catch target that is below the annual catch limit of a stock or stock complex, as recommended by the Council. When used, the annual catch target shall serve as the basis for invoking accountability measures in paragraph (f) of this section.

(e) Procedures and timing. (1) No later than 60 days before the start of a fishing year, the Council shall recommend to the Regional Administrator an annual catch limit, including any overage adjustment, for each stock or stock complex. The recommended limit should be based on a recommendation of the SSC of the acceptable biological catch for each stock or stock complex. The Council may not recommend an annual catch limit that exceeds the acceptable biological catch recommended by the SSC. The Council may also recommend an annual catch target below the annual catch limit.

(2) No later than 30 days before the start of a fishing year, the Regional Administrator shall publish in the Federal Register a notice of the proposed annual catch limit specification and any associated annual catch target, and request public comment.

(3) No later than the start of a fishing year, the Regional Administrator shall publish in the Federal Register and use other methods to notify permit holders of the final annual catch limit specification and any associated annual catch target.

(f) Accountability measures. When any annual catch limit or annual catch target is projected to be reached, based on available information, the Regional Administrator shall publish notification to that effect in the Federal Register and shall use other means to notify permit holders.

(1) The notice will include an advisement that fishing for that stock or stock complex will be restricted beginning on a specified date, which shall not be earlier than 7 days after the date of filing the notice for public inspection at the Office of the Federal Register. The restriction may include, but is not limited to, closure of the fishery, closure of specific areas, changes to bag limits, or restrictions in effort. The restriction will remain in 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

Definitions.

* * * * *

Ecosystem component species means any western Pacific MUS that the Council has identified to be, generally, a non-target species, not determined to be subject to overfishing, approaching overfished, or overfished, not likely to become subject to overfishing or overfished, and generally not retained for sale or personal use.

* * * * *

SSC means the Scientific and Statistical Committee of the Western Pacific Fishery Management Council.

* * * * *

4. In § 665.15, add a new paragraph (u) to read as follows:

§ 665.15

Prohibitions.

* * * * *

(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).