[Federal Register Volume 72, Number 116 (Monday, June 18, 2007)]
[Proposed Rules]
[Pages 33442-33444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11631]


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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; Fishery Management Plan for 
Pelagic Fisheries of the Western Pacific Region; 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ACTION: Proposed rule; withdrawn; partial approval of fishery 
management plan amendment.

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SUMMARY: NMFS partially approved Amendment 14 to the Fishery Management 
Plan for the Pelagic Fisheries of the Western Pacific Region (Amendment 
14), prepared by the Western Pacific Fishery Management Council 
(Council). The Council's recommendation for international management 
action to end overfishing of bigeye and yellowfin tuna stocks was 
approved. The remaining portions of the amendment relating to internal 
protocols for managing Pacific pelagic species in international waters, 
and new Federal permitting and data reporting requirements for the 
domestic Hawaii-based pelagic (non-longline) fisheries, were not 
approved.

DATES: The Council was notified that the amendment was partially 
approved on May 16, 2007.

ADDRESSES: Copies of the Pelagics FMP and Amendment 14 may be obtained 
from Kitty M. Simonds, Western Pacific Fishery Management Council, 1164 
Bishop St., Suite 1400, Honolulu, HI 96813.

FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS, (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 (Council) that overfishing was occurring on western and 
central Pacific (WCPO) yellowfin tuna (71 FR 14837, March 24, 2006).
    In response to these determinations, the Council prepared and 
transmitted to NMFS for review by the Secretary of Commerce 
(Secretary), Amendment 14 to the Pelagics FMP. Amendment 14, 
``Management Measures for Pacific Bigeye Tuna and Western and Central 
Pacific Yellowfin Tuna,'' addressed the overfishing condition of these 
tunas, as was required under the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) at the time the Council was 
notified of the overfishing.
    Amendment 14 contained several recommended international and 
domestic management measures. The recommended international measures 
included specific recommendations to NMFS, the Department of State, and 
the U.S. delegations to the Pacific tuna regional fishery management 
organizations, to immediately end international overfishing in the WCPO 
and the eastern Pacific, and to establish a mechanism by which the 
Council would be involved in international negotiations that involve 
management of fisheries under the jurisdiction of the Council and NMFS 
in the western Pacific.
    Domestically, Amendment 14 included the establishment of control 
dates for most domestic pelagic fisheries, and proposed to enhance data 
collection for Hawaii-based small boat pelagic fisheries through 
mandatory Federal permits and logbooks for commercial small boat 
fisheries and improved surveys and voluntary reporting for recreational 
fisheries.
    NMFS published a notice of availability for Amendment 14 on 
February 15, 2007 (72 FR 7385), and the comment period ended on April 
16, 2007. NMFS received no comments on the amendment. On March 29, 
2007, NMFS subsequently published a proposed rule for the permitting 
and data collection requirements for Hawaii-based, non-longline, 
pelagic commercial vessels (72 FR 14761), and the comment period ended 
on May 14, 2007. NMFS received one comment on the amendment's proposed 
measures. The Hawaii Department of Land and Natural Resources expressed 
concern that the establishment of a separate Federal permit and 
reporting requirement, duplicating the state's existing commercial 
marine license reporting system, would impose an unnecessary burden on 
fishermen. Instead, the state strongly favors a joint and collaborative 
effort with NMFS, under an existing data sharing agreement, to help 
improve its fisheries data collection program to better monitor 
Hawaii's pelagic non-longline, commercial fishery.

[[Page 33443]]

International Provisions

    Since NMFS determined that overfishing was occurring on Pacific 
bigeye and WCPO yellowfin tunas, the reauthorization of the Magnuson-
Stevens Act and related legislation created new requirements related to 
the international management of fisheries. These new requirements 
affect the significance of the Council's recommendations for 
international action to end overfishing of Pacific bigeye and WCPO 
yellowfin tunas, and the protocol specifying the Council's involvement 
in future international management efforts.

Council Recommendations for International Management Action

    Section 406 of the Magnuson-Stevens Fishery Conservation and 
Management Reauthorization Act (MSRA) created a new section 304(i) in 
the Magnuson-Stevens Act entitled International Overfishing. Section 
304(i) applies to fisheries that the Secretary determines are 
approaching a condition of being overfished due to excessive 
international fishing pressure, and for which there are no management 
measures to end overfishing under an international agreement to which 
the United States is a party. If these conditions are met, then the 
Council is relieved of its responsibility under section 304(e) to 
prepare and implement a fishery management plan, plan amendment, or 
proposed regulations to end overfishing immediately, or to prevent 
overfishing from occurring. In lieu of the requirement to implement a 
plan, amendment, or proposed regulations, section 304(i) requires the 
Council to develop and submit to the Secretary, recommendations for 
domestic regulations to address the relative impact of fishing vessels 
of the United States, and to develop and submit to the Secretary of 
State and to the Congress, recommendations for international actions 
that will end overfishing in the fishery, taking into account the 
relative impact of vessels of other nations and vessels of the United 
States. Section 304(i) does not provide that the required 
recommendations must be developed and submitted through a plan or plan 
amendment, or through any particular vehicle. However, section 304(i) 
does not expressly preclude a council from developing and submitting 
such recommendations through a plan or plan amendment.
    Amendment 14 and the proposed rule recognized that Pacific bigeye 
tuna and WCPO yellowfin tuna are exploited by foreign fishing fleets 
along with the U.S. fleet, and that U.S. fisheries account for only a 
small percentage of the Pacific bigeye and WCPO yellowfin tuna 
harvests. For example, in 2004, the estimated bigeye tuna catch by U.S. 
commercial fisheries was 2.3 percent of the 2004 total Pacific-wide 
bigeye tuna catch, and the estimated yellowfin tuna catch was 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 
demonstrate that the overfishing is a result of excessive international 
fishing pressure, and indicate that the capacity for unilateral action 
by the United States to prevent or end overfishing is limited.
    There are existing management measures to address fishing mortality 
under international agreements to which the United States is a party; 
however, none of the measures are adequate to end overfishing of the 
subject 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 United States, a member nation of the 
IATTC, received a fleet-wide longline bigeye tuna limit of 150 mt, and 
this quota was increased to 500 mt for 2007. These measures are 
insufficient to achieve the reductions recommended by IATTC staff to 
end the overfishing.
    The United States is also 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). The WCPFC, 
established under the Convention on the Conservation and Management of 
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 
(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 each member's average 2001-04 catches, or for China 
and the United States, based on their 2004 catches. These limits will 
remain in effect through 2008. Similar to the IATTC circumstances, 
these measures are insufficient to achieve the reductions recommended 
by the Scientific Committee to end overfishing.
    Based on the above, and as acknowledged in the proposed rule (72 FR 
14763), Pacific bigeye tuna and WCPO yellowfin tuna are experiencing 
overfishing due to excessive international fishing pressure. Existing 
management measures are not sufficient to end the overfishing under 
international agreements to which the United States is a party. Thus, 
the Council is required under section 304(i) to develop recommendations 
for domestic regulations to address the relative impact of fishing 
vessels of the United States, and to develop and submit to the 
Secretary of State and to the Congress, recommendations for 
international actions that will end overfishing in the fishery, taking 
into account the relative impact of vessels of other nations and 
vessels of the United States.
    The measures proposed in Amendment 14 satisfy the Council's 
obligations under section 304(i) to submit recommendations for 
international action. As noted above, there is no reason a council may 
not develop and submit such recommendations through a plan and plan 
amendment. Thus, these recommendations contained in Amendment 14 were 
approved and will be forwarded to the Secretary of State and Congress 
for appropriate consideration, and the Council need not submit 
additional measures in order to comply with existing legal mandates.

Council Protocol for International Participation

    Amendment 14 contained a recommendation for establishing a protocol 
related to the Council's role in the management of pelagic fish stocks 
that are managed internationally. The protocol included steps the 
Council would take to monitor the status of internationally managed 
fish stocks, participate in U.S. delegations in meetings with 
international regional fisheries management organizations (RFMO), and 
make recommendations for international agreements.
    Section 503(f) of the Western and Central Pacific Fisheries 
Convention Implementation Act (WCPFCIA) requires the development of a 
memorandum of understanding (MOU) among the Secretary of Commerce, the 
Secretary of State, and the three Councils in the Pacific. The MOU will 
clarify the roles of the respective Councils in international fishery 
management discussions relating to

[[Page 33444]]

stocks under Council jurisdictions, as well as with respect to 
development of domestic fishing regulations for such stocks that are 
consistent with international management negotiations.
    The MOU is under development by the Councils and the Secretary, in 
consultation with the Secretary of State. It will address participation 
in U.S. delegations to international fishery organizations in the 
Pacific Ocean, including government-to-government consultations; 
providing formal recommendations to the Departments of Commerce and 
State regarding necessary measures for domestic and foreign vessels 
fishing for highly migratory species, coordinating positions within the 
U.S. delegation for presentation to the appropriate international 
fishery organization, and recommending those domestic fishing 
regulations that are consistent with the actions of the international 
fishery organization, for approval and implementation under the 
Magnuson-Stevens Act.
    The Council's recommended protocol describing its role in the 
management of international fisheries contained in Amendment 14 was 
premature and did not include all the parties required pursuant to the 
new legislation. It would have been inconsistent with the 503(f) 
provisions to agree to such a protocol at this time; therefore, it was 
not approved. In light of the ongoing development of the MOU required 
under the WCPFCIA, the Council's proposed protocol is no longer 
necessary. However, should the Council wish to establish such a 
protocol in the FMP, it would have to be consistent with the 
controlling provisions of the MOU.

Domestic Permit and Reporting Recommendations

    Amendment 14 recommended the establishment of a Federal permit and 
data collection program for Hawaii-based non-longline commercial 
pelagic fisheries. National Standard 7 of the Magnuson-Stevens Act 
mandates that management measures, where practicable, minimize costs 
and avoid unnecessary duplication. The permitting and data collection 
measures proposed in Amendment 14 would have been duplicative, and 
unnecessary in light of existing State of Hawaii permitting and catch 
and effort reporting programs. The state requires every commercial 
fisherman (operators and crew members) to have a current Commercial 
Marine Licenses (CML) issued annually by the Hawaii Department of Land 
and Natural Resources, Division of Aquatic Resources (HDAR). This 
requirement applies to fishermen who fish in the EEZ, as well as state 
waters. Each charter fishing vessel operator and crew member is also 
required by the State to have CMLs (charter fishing clients are not 
required to have a license).
    State-licensed fishermen are required to report catch and effort on 
a monthly or trip basis to HDAR on forms provided by HDAR. (Federally-
permitted commercial longline fishermen are exempt from the State 
reporting requirement because they report to NMFS on Federal logbooks, 
which are accepted by the HDAR as fulfilling the state reporting 
requirement.) Federal permits and logbooks would be redundant to the 
state's CML and logbooks. These redundant requirements would add an 
unnecessary burden on fishermen, and likely decrease compliance with 
both the State's management program and any potential Federal program. 
Thus, the permit and data collection measures proposed in Amendment 14 
are inconsistent with National Standard 7.
    A more cost-effective and non-duplicative management strategy for 
the small boat commercial pelagic fishery in Hawaii is to work 
collaboratively with the State to enhance and improve the state's 
fishing permit and reporting requirements, and continue the State-
Federal data sharing agreement that has been in place since 1988. This 
approach would eliminate redundancy and the burden on fishermen of 
separate Federal permit and logbook requirements. Instead, NMFS would 
rely on the HDAR's processes and staff to continue to process the 
existing commercial fishing reports, and NMFS would continue to obtain 
necessary catch and effort data via the existing data exchange 
agreement.
    A cooperative state-Federal system of permitting and reporting for 
non-longline pelagic fisheries would simplify enforcement, would 
provide the necessary fisheries information required for stock 
assessment and fishery management, and would provide a non-confusing 
and non-duplicative burden on the fishing public.
    To this end, NMFS PIR staff has begun to work jointly with staffs 
of the NMFS Pacific Islands Fisheries Science Center, Council, and HDAR 
to enhance the State's permitting and data collection program for 
small-boat pelagic commercial fisheries. This effort is intended to 
ensure that data to manage the small-boat commercial pelagic fisheries 
around Hawaii are collected in a cost-effective and non-duplicative 
manner.

Section 304(i) and Domestic Measures

    As part of the Section 304(i) obligations discussed above, the 
Council is required to submit recommendations to address the relative 
impact of fishing vessels of the United States. As stated in the 
proposed rule (72 FR 14761), existing measures have been implemented to 
address the relative impact of U.S. fishing vessels within the meaning 
of section 304(i). While additional measures, such as those proposed in 
Amendment 14 may be submitted to strengthen the domestic management 
program, they must be consistent with existing law to be implemented. 
If the Council wishes to propose additional permitting and data 
collection requirements, it must be done in a manner consistent with 
the considerations discussed above.
    As a result of not approving the underlying provisions in Amendment 
14, NMFS will not publish a final rule to implement Federal permits and 
reporting requirements for the Hawaii-based non-longline commercial 
pelagic fishery. NMFS hereby withdraws the proposed rule (72 FR 14761, 
March 29, 2007).

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

    Dated: June 11, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E7-11631 Filed 6-15-07; 8:45 am]
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