[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Proposed Rules]
[Pages 23962-23964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10443]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.101102552-1232-01]
RIN 0648-BA35


Fisheries Off West Coast States; Highly Migratory Species 
Fisheries; Annual Catch Limits and Accountability Measures

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 regulations under authority of the Magnuson-
Stevens Fishery Conservation and Management Act (MSA) to implement 
Amendment 2 to the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species (HMS FMP) which is currently 
under review by NMFS. The proposed rule would change the suite of 
management unit species, modify the process for revising numerical 
estimates of maximum sustainable yield and optimal yield, and specify 
status determination criteria so that overfishing and overfished 
determinations can be made for all management unit species. The 
proposed rule is necessary to ensure that the HMS FMP is consistent 
with the objectives of National Standard 1 in the MSA. National 
Standard 1 mandates that ``Conservation and management measures shall 
prevent overfishing while achieving, on a continuing basis, the optimum 
yield from each fishery for the U.S. fishing industry.''

DATES: Comments must be received by May 31, 2011.

ADDRESSES: You may submit comments on this proposed rule, identified by 
0648-BA35, the draft environmental assessment (EA), and the regulatory 
impact review (RIR) prepared for the proposed rule by any of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Rodney R. McInnis, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-
4213.
     Fax: (562) 980-4047.
    Instructions: All comments received are part of the public record 
and generally will be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name and 
address) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (if submitting comments via the Federal e-Rulemaking 
portal, enter ``N/A'' in the relevant required fields if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats 
only. Copies of the draft EA and RIR prepared for this proposed rule 
are available at http://swr.nmfs.noaa.gov/ or may be obtained from 
Rodney R. McInnis (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries 
Division, NMFS, 760-431-9440, ext. 303.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is also accessible at (http://swr.nmfs.noaa.gov/
). An electronic copy of the current HMS FMP and accompanying 
appendices, including Amendment 1, are available on the Pacific Fishery 
Management Council's Web site at http://www.pcouncil.org/hms/hmsfmp.html.
    The HMS FMP was developed by the Pacific Fishery Management Council 
(Council) in response to the need to coordinate state, Federal, and 
international management of HMS stocks. The management unit in the FMP 
consists of several highly migratory species (tunas, billfish, and 
sharks) that occur within the West Coast (California, Oregon, and 
Washington) Exclusive Economic Zone (EEZ) and to a limited extent on 
adjacent high seas waters. The National Marine Fisheries Service 
(NMFS), on behalf of the U.S. Secretary of Commerce, partially approved 
the HMS FMP on February 4, 2004. The majority of HMS FMP implementing 
regulations became effective on April 7, 2004. Reporting and 
recordkeeping provisions became effective on February 10, 2005.
    On June 7, 2007, NMFS approved Amendment 1 to the HMS FMP to 
incorporate recommended international measures to end overfishing of 
the Pacific stock of bigeye tuna (Thunnus obesus) in response to formal 
notification from NMFS that overfishing was occurring on this stock. 
Amendment 1 also served as a means to substantially reorganize the 
original combined FMP and Final Environmental Impact Statement, 
published in August 2003. NMFS implements the Council's recommended 
management measures through the Federal regulatory process.
    In June 2010, the Council took final action to recommend Amendment 
2 to the HMS FMP, which would address statutory requirements of the MSA 
National Standard Guidelines in regard to the establishment of annual 
catch limits (ACLs) and accountability measures (AMs). This proposed 
rule to implement Amendment 2 would reduce the number of HMS FMP 
Management Unit Species (MUS) listed in 50 CFR part 660 from 13 to 11. 
The Council has recommended that all 11 MUS should be deemed to fall 
under the international exemption for setting ACLs and AMs as outlined 
in the revised MSA National Standard 1 (NS1) Guidelines described in 
detail below, and therefore the Council has not proposed implementing 
regulations for ACLs and AMs. The proposed rule would also modify the 
process for revising and seeking NMFS approval for numerical estimates 
of maximum sustainable yield (MSY) and optimal yield (OY) and to 
specify status determination criteria (SDC) so that overfishing and 
overfished determinations can be made for all MUS stocks.

[[Page 23963]]

    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 amended the MSA to include new requirements 
for establishing ACLs and AMs and other provisions regarding preventing 
and ending overfishing and rebuilding fisheries. In response to these 
changes in the MSA, in 2009 NMFS revised the NS1 Guidelines (50 CFR 
600.310) (see: 74 FR 3178, January 16, 2009). The Guidelines are 
intended to help the regional fishery management councils and NMFS meet 
the objectives of NS1 by providing guidance on: Specifying MSY and OY; 
specifying SDC so that overfishing and overfished determinations can be 
made for stocks and stock complexes that are part of a fishery; 
preventing overfishing and achieving OY; incorporating of scientific 
and management uncertainty in control rules, adaptive management using 
ACLs and AMs; and rebuilding stocks and stock complexes. MSY is the 
largest long-term average catch or yield that can be taken from a stock 
or stock complex under prevailing ecological, environmental conditions 
and fishery technological characteristics (e.g., gear selectivity), and 
the distribution of catch among fleets. OY is the long-term average 
amount of fish that will provide the greatest overall benefit to the 
Nation, particularly with respect to food production and recreational 
opportunities and taking into account the protection of marine 
ecosystems. SDC are quantifiable factors or their proxies, which are 
used to determine if overfishing has occurred, or if the stock or stock 
complex is overfished. ``Overfished'' relates to biomass of a stock or 
stock complex, and ``overfishing'' pertains to a rate or level of 
removal of fish from a stock or stock complex.
    The revisions to the NS1 Guidelines also dictate that fisheries 
undergoing overfishing have ACLs and AMs in place to end overfishing by 
2010, and all fisheries to have ACLs and AMs in place to prevent or end 
overfishing by 2011. However, a stock or stock complex does not require 
an ACL or AM if it qualifies for any of several MSA-defined exceptions. 
The most important of these with respect to highly migratory species is 
the so-called ``international exception'' for stocks managed under an 
international agreement to which the United States is a party (Sec.  
660.310(h)(2)(ii)). The international exception applies to stocks or 
stock complexes subject to management under an international agreement, 
which is defined as ``any bilateral or multilateral treaty, convention, 
or agreement which relates to fishing and to which the United States is 
a party.'' The management unit species in the HMS FMP occur in the 
convention area of, and are subject to the conservation and management 
authority of the Inter-American Tropical Tuna Commission; furthermore 
most of the management unit species also occur in the convention area 
of, and are subject to the conservation and management authority of the 
Commission for the Conservation and Management of Highly Migratory Fish 
Stocks in the Western and Central Pacific Ocean.
    In April 2009, the Council initiated scoping under the National 
Environmental Policy Act for Amendment 2 of the HMS FMP to address the 
revised NS 1 Guidelines. Initial scoping focused principally on 
classification of stocks in the FMP as either ``in the fishery'' and 
subject to management or as ecosystem component (EC) species and the 
application of the ``international exception'' to HMS FMP MUS. At their 
April 2010 meeting, the Council reviewed the Highly Migratory Species 
Management Team's (HMSMT) recommendations for the range of alternatives 
and adopted a set of alternatives for public review. These alternatives 
were made available to the public in the form of a draft environmental 
assessment included in the briefing materials for the Council's June 
2010 meeting. At their June 2010 meeting, the Council took final action 
to adopt a preferred alternative. The public had the opportunity to 
comment on the proposal, including the issues to be addressed and the 
range of alternatives, during Council and advisory body meetings.
    In regard to classification of stocks in the FMP, the preferred 
alternative would reclassify bigeye thresher shark (Alopias 
superciliosus) and pelagic thresher shark (A. pelagicus) as EC species 
thereby reducing the current suite of MUS from 13 to 11. Bigeye and 
pelagic thresher sharks were included originally in the HMS FMP as MUS 
due to concern over their low resiliency to exploitation. The 
recommendation to drop them as MUS under this proposed action is based 
in part on the minor levels of west coast commercial and recreational 
catch that have been reported for these species since the FMP was 
implemented. However, given the presence of these species off the West 
Coast, particularly during El Nino warming periods, it was deemed 
appropriate to categorize them as EC species. One of the essential 
purposes behind identifying EC species is to monitor these species over 
time, periodically evaluate their status, and assess whether any 
management is needed under the FMP, in which case an EC species could 
be reclassified as MUS, which means they would be treated as ``in the 
fishery.'' If Amendment 2 is approved, there would be eight EC species 
included in the FMP: the two thresher shark species (bigeye and 
pelagic) that are currently MUS, plus pelagic sting ray (Dasyetis 
violacea), wahoo (Acathocybium solandri), common mola (Mola mola), 
escolar (Lepidocybium flavobrunneum), lancetfishes (Alepisauridae), and 
louvar (Luvarus imperialis). The international exception to setting 
ACLs and AMs as described at 50 CFR 660.310(h)(2)(ii) would be applied 
to all eight of the managed species under the preferred alternative.
    In regard to the process for revising numerical estimates of 
management reference points, the methods for determining MSY (or 
proxies), OY, and SDC are currently described in the HMS FMP. Existing 
numerical estimates of these quantities (shown in FMP Table 4-3) would 
be retained. However, upon receipt of any new information based on the 
best available science, the Council may adjust the numerical estimates 
of MSY, OY, and SDC periodically under the Council's management measure 
process. The process would involve the Council's HMSMT identifying the 
numerical estimates within the draft HMS Stock Assessment and Fishery 
Evaluation (SAFE) document that is submitted in June with the Council's 
SSC HMS subcommittee and then making a recommendation on their 
suitability. The Council would then decide whether to adopt updated 
numerical estimates of MSY and OY, which would be submitted as 
recommendations for NMFS to review as part of the management measure 
review process. This provides the Secretary the opportunity to review 
revised MSY and OY estimates. In this process, the Council takes final 
action in November and then NMFS engages in rulemaking to implement the 
specifications of any management measures proposed by the Council. The 
revised estimates of MSY, OY, and SDC would also be published in the 
annual HMS SAFE document. If, however, a regional fisheries management 
organization formally adopts reference points for the purpose of 
regional management for any of the HMS FMP managed species, these would 
generally take precedence. The Council would engage in a review process 
similar to that described above before adopting them as appropriate for 
domestic

[[Page 23964]]

management purposes under the HMS FMP.

Classification

    NMFS has determined that the proposed rule is consistent with the 
HMS FMP and preliminarily determined that this proposed rule is 
consistent with the MSA and other applicable laws.
    An Initial Regulatory Impact Review was conducted to analyze the 
potential economic impacts and costs of each proposed alternative under 
consideration, including the preferred alternative addressed in this 
proposed rule.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Under the Regulatory Flexibility Act, 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 proposed action is not 
expected to have any direct or indirect socioeconomic impacts, because 
harvest limits and management measures influencing ex-vessel revenue 
and personal income are not established under the range of alternatives 
considered. Instead, the proposed action amends the HMS FMP to modify 
the suite of MUS and to revise the framework and process used by the 
Council and NMFS to prevent overfishing on MUS. As a result, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 25, 2011.
John Oliver,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF THE WEST COAST STATES

    1. The authority citation for part 660 continues to read as 
follows:

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

    2. In Sec.  660.702, revise the definition of ``Highly Migratory 
Species (HMS)'' to read as follows:


Sec.  660.702  Definitions.

* * * * *
    Highly Migratory Species (HMS) means species managed by the FMP, 
specifically:

Billfish/Swordfish:
    striped marlin (Tetrapturus audax)
    swordfish (Xiphias gladius)
Sharks:
    common thresher shark (Alopias vulpinus)
    shortfin mako or bonito shark (Isurus oxyrinchus)
    blue shark (Prionace glauca)
Tunas:
    north Pacific albacore (Thunnus alalunga)
    yellowfin tuna (Thunnus albacares)
    bigeye tuna (Thunnus obesus)
    skipjack tuna (Katsuwonus pelamis)
    northern bluefin tuna (Thunnus orientalis)
Other:
    dorado or dolphinfish (Coryphaena hippurus)
* * * * *
    3. In Sec.  660.709, revise paragraph (a) to read as follows:


Sec.  660.709  Annual specifications.

    (a) Procedure. (1) In June of each year, the HMSMT will deliver a 
preliminary SAFE report to the Council for all HMS with any necessary 
recommendations for harvest guidelines, quotas or other management 
measures to protect HMS, including updated MSY and OY estimates based 
on the best available science. The Council's HMS Science and 
Statistical Committee will review the estimates and makes a 
recommendation on their suitability for management. The Council will 
review these recommendations and decide whether to adopt updated 
numerical estimates of MSY and OY, which are then submitted as 
recommendations for NMFS to review as part of the management measures 
review process.
    (2) In September of each year, the HMSMT will deliver a final SAFE 
report to the Council. The Council will adopt any necessary harvest 
guidelines, quotas or other management measures including updated MSY 
and OY estimates if any for public review.
    (3) In November each year, the Council will take final action on 
any necessary harvest guidelines, quotas, or other management measures 
including updated MSY and OY estimates if any and make its 
recommendations to NMFS.
    (4) Based on recommendations of the Council, the Regional 
Administrator will approve or disapprove any harvest guideline, quota, 
or other management measure including updated MSY and OY estimates 
after reviewing such recommendations to determine compliance with the 
FMP, the Magnuson Act, and other applicable law. The Regional 
Administrator will implement through rulemaking any approved harvest 
guideline, quota, or other management measure adopted under this 
section.
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[FR Doc. 2011-10443 Filed 4-28-11; 8:45 am]
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