[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Proposed Rules]
[Pages 73234-73236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27794]



[[Page 73234]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 211217-0263]
RIN 0648-BK90


Pacific Island Fisheries; 2022-2025 Annual Catch Limits and 
Accountablility Measures for Main Hawaiian Islands Uku (Gray Jobfish)

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 to implement an annual catch limit (ACL) of 
295,419 lb (134 metric tons (t)), an annual catch target (ACT) of 
291,010 lb (132 t), and accountability measures (AM) for main Hawaiian 
Islands (MHI) uku for fishing years 2022, 2023, 2024, and 2025. These 
ACLs and ACTs apply to the total combined commercial and non-commercial 
catch of uku. As an in-season accountability measure, if NMFS projects 
that the total catch will reach the ACT in any given fishing year, we 
would close commercial and non-commercial uku fisheries in Federal 
waters for the remainder of the fishing year. As a post-season AM, if 
NMFS determines that the most recent three-year average total catch 
exceeded the ACL in a fishing year, we would reduce the ACL and ACT for 
the following fishing year by the amount of the overage. The proposed 
rule supports the long-term sustainability of MHI uku.

DATES: NMFS must receive comments by January 26, 2022.

ADDRESSES: You may submit comments on the proposed rule, identified by 
NOAA-NMFS-2021-0088, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2021-0088 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
     Mail: Send written comments to Michael D. Tosatto, 
Regional Administrator, NMFS Pacific Islands Regional Office (PIRO), 
1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    The Western Pacific Fishery Management Council (Council) and NMFS 
prepared an environmental assessment (EA) that supports this proposed 
rule. The EA is available at www.regulations.gov, or from the Council, 
1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, or 
www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: David O'Brien, NMFS PIRO Sustainable 
Fisheries, 808-725-5038.

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the MHI uku 
fishery in Federal waters around Hawaii under the Fishery Ecosystem 
Plan for the Hawaiian Archipelago (FEP), as authorized by the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
The regulations at 50 CFR 665.4 require NMFS to specify an ACL, and 
optionally specify an ACT, for MHI uku each fishing year based on a 
recommendation from the Council. The specification of an ACT reduces 
the likelihood that the ACL will be exceeded.
    The Council, at its September 2021 meeting, recommended that NMFS 
implement the proposed ACLs, ACTs, and AMs for MHI uku for 2022, 2023, 
2024, and 2025. The fishing year for MHI uku is the calendar year. The 
Council recommended the proposed ACL of 295,419 lb (134 t) and ACT of 
291,010 lb (132 t) based on a 2020 MHI uku stock assessment, in 
consideration of the risk of overfishing, past fishery performance, the 
acceptable biological catch recommendation from its Scientific and 
Statistical Committee, and with opportunity for public input.
    The 2020 stock assessment found that the MHI uku stock is healthy 
and estimated the overfishing limit to be 302,033 lb (137 t), assuming 
four years of identical catch in 2022, 2023, 2024, and 2025. This new 
overfishing limit is the first time the limit has been specified for 
total catch. Previous stock assessments and overfishing limits for MHI 
uku considered commercial catch only. The proposed ACLs and ACTs are 
associated with up to a 41 and 36 percent probability of overfishing, 
respectively, for each proposed fishing year. Both are more 
conservative than the 50 percent risk threshold allowed under NMFS 
guidelines for Magnuson-Stevens Act National Standard 1 requiring that 
fishery management measures prevent overfishing.
    NMFS monitors MHI uku catches based on data provided by commercial 
fishermen to the State of Hawaii, and by non-commercial fishermen to 
the State of Hawaii and NMFS. As an in-season AM, if NMFS projects that 
total catch will reach the ACT, we would close Federal waters to the 
commercial and non-commercial fisheries for MHI uku for the remainder 
of the fishing year. As a post-season AM, if NMFS determines that the 
most recent three-year average MHI uku total catch exceeds the ACL in 
any given year, NMFS would reduce the ACL and ACT for the subsequent 
fishing year by the amount of the overage with a subsequent rulemaking.
    The combined commercial and non-commercial fishery has only caught 
more than the proposed ACT one year in the past 11 years (2012), 
suggesting there is a roughly one in three chance the fishery will 
reach the ACT in one or more years specified in this proposed rule. If 
the fishery was to reach the ACT requiring closure of Federal waters, 
we expect it would be late in the year and have minor impacts to the 
fishery. We do not anticipate changes to the fishery that would result 
in significant environmental impacts.
    NMFS will consider public comments on this proposed rule and will 
announce the final rule in the Federal Register. NMFS must receive any 
comments by the date provided in the DATES heading, not postmarked or 
otherwise transmitted by that date. Regardless of the final rule, all 
other management measures will continue to apply in the fisheries.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FEP, other provisions of the Magnuson-Stevens Act, 
and other applicable laws, subject to further consideration after 
public comment.

Certification of Finding of No Significant Impact on Substantial Number 
of Small Entities

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the attached proposed rule, issued under the 
authority of the Magnuson-Stevens Act, will not have a significant

[[Page 73235]]

economic impact on a substantial number of small entities.
    The proposed action would implement an ACL of 295,419 lb (134 t), 
an ACT of 291,010 lb (132 t), and both in-season and post-season AM for 
uku in the U.S. Exclusive Economic Zone around the MHI for fishing 
years 2022, 2023, 2024, and 2025.
    Uku caught by commercial and non-commercial fishermen would all 
count toward the ACL and ACT under this action. This would include 
catch by anyone who is required to report catch to State or Federal 
agencies. As a result, this action would apply to hundreds of small 
entities across Hawaii who would potentially participate in the MHI uku 
fishery. On average over the last five years, commercial fishermen 
reported 92,902 lb (42.1 t) of uku caught, and sold 85,641 lb (38.8 t) 
(92.2 percent) for $412,790. Based on information collected by the 
State of Hawaii and NMFS, the five-year annual average of commercial 
and non-commercial uku catch was 218,874 lb (99.3 t). NMFS estimates 
that all participants in this fishery are small entities.
    NMFS and the Council will monitor commercial and non-commercial uku 
catches relative to the ACL and ACT. As an in-season AM, NMFS will 
close Federal waters to uku retention in any fishery when we project 
combined commercial and non-commercial catches will reach the ACT. As a 
post-season AM, if NMFS determines that the average combined commercial 
and non-commercial catch estimates from the most recent three years 
exceeded the ACL, we would reduce the ACL and ACT for the following 
year by an amount equal to the overage.
    NMFS implemented an ACL of 127,205 lb (57.7 t) for MHI uku as a 
single species stock starting in 2019, 2020, and 2021, which only 
applied to catch in the commercial fishery. The Council recommended 
that non-commercial catch estimates be incorporated into uku management 
beginning in 2022. In the 11 years from 2010 through 2020, the combined 
total catch of uku in commercial and non-commercial fisheries exceeded 
the proposed 2022-2025 ACT and ACL only once (in 2012) when total uku 
catch was 323,182 lb (147 t). At no point during 2010-2020 did the 
three-year combined average uku catch reach the proposed ACL. The most 
recent three years of combined commercial and non-commercial uku 
catches were 238,272 lb (108 t), 228,562 lb (104 t), and 218,254 lb 
(100 t) in 2018, 2019, and 2020, respectively.
    Given the catch history, there is roughly a one in three chance 
that the combined total fishery catch will reach the ACT at least once 
during the 2022-2025 period, which would result in an in-season closure 
in Federal waters. If NMFS projects the ACT to be reached in a given 
year, we would close Federal waters to uku retention through a Federal 
Register notice. In the event that NMFS needs to reduce an ACL and ACT 
because the fishery three-year average catch exceeded the ACL, we would 
also implement the modified ACL and ACT through a Federal Register 
notice. If the fishery is projected to reach the ACT resulting in an 
in-season closure of Federal waters, we anticipate that it would occur 
near the end of the year. Fishermen could continue to fish for other 
species in Federal waters and for uku--both commercially and non-
commercially--in State waters. All uku caught in State waters after a 
closure in Federal waters would still count toward the total catch for 
that year relative to the post-season AM.
    The lack of a concurrent uku fishery closure in State waters may 
make enforcement of the Federal waters closure more difficult because, 
without an enforcement officer observing the catch locations, it would 
be impossible to know if an uku was caught in Federal or State waters. 
Even so, NMFS has utilized an in-season closure as an AM in the Hawaii 
Deep 7 bottomfish fishery since 2007, and enforced its closure when the 
fishery reached its catch limit in each of 2007-2010. Under all 
alternatives, if the MHI uku fishery were closed in Federal waters, the 
NOAA Office of Law Enforcement and the U.S. Coast Guard would be 
responsible for enforcing the closure. The boundary between State and 
Federal waters is easily determined using the Global Positioning 
System.
    Regardless, the combination of total uku catch history, past level 
of uku catch in Federal waters, any closure likely occurring at the end 
of the season, and any uku catch after a Federal closure being counted 
toward the ACL, indicates that limitations on enforcement of the 
Federal closure will have limited negative effects on the management of 
the fishery. For the same reasons, even though this proposed action 
would apply to a substantial number of vessels, it should not result in 
significant adverse economic impact to individual vessels.
    For Regulatory Flexibility Act (RFA) purposes only, NMFS has 
established a small business size standard, including their affiliates, 
whose primary industry is commercial fishing (see 50 CFR 200.2). A 
business primarily engaged in commercial fishing (NAICS code 11411) is 
classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide. Based on available 
information, NMFS has determined that all affected entities are small 
entities, i.e., they are engaged in the business of fish harvesting, 
are independently owned or operated, are not dominant in their field of 
operation, and have gross receipts not in excess of $11 million. 
Therefore, there would be no disproportionate economic impacts between 
large and small entities. Furthermore, there would be no 
disproportionate economic impacts among the universe of vessels based 
on gear, home port, or vessel length.
    For most of the fisheries subject to this proposed action, 
fishermen would be able to fish throughout the entire year. The ACLs, 
as proposed, would not change the gear type, areas fished, effort, or 
participation of the fisheries during the fishing years under 
consideration. The proposed action does not duplicate, overlap, or 
conflict with other Federal rules and is not expected to have 
significant impact on small entities (as discussed above), 
organizations, or government jurisdictions. The proposed action also 
will not place a substantial number of small entities, or any segment 
of small entities, at a significant competitive disadvantage to large 
entities.
    For the reasons above, NMFS does not expect the proposed action to 
have a significant economic impact on a substantial number of small 
entities. As a result, an initial regulatory flexibility analysis is 
not required and none has been prepared.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 665

    Accountability measures, Annual catch limits, Bottomfish, 
Fisheries, Fishing, Hawaii, Pacific Islands.

    Dated: December 17, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 665 as follows:

[[Page 73236]]

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for 50 CFR part 665 continues to read as 
follows:

    Authority:  16 U.S.C. 1801 et seq.
0
2. In Sec.  665.211, revise the section heading and paragraphs (a) and 
(b), redesignate paragraph (e) as paragraph (f), and add a new 
paragraph (e).
    The revisions and addition read as follows:


Sec.  665.211   Annual Catch Limits (ACL) and Annual Catch Targets 
(ACT).

    (a) In accordance with Sec.  665.4, the ACLs and ACTs for MHI 
bottomfish fisheries for each fishing year are as follows:

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                                                                 2018-19 ACL      2019-20 ACL      2020-21 ACL
                           Fishery                                   (lb)             (lb)             (lb)
----------------------------------------------------------------------------------------------------------------
Deep 7 bottomfish............................................         492,000          492,000          492,000
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                   Fishery                     2022 ACL (lb)    2023 ACL (lb)    2024 ACL (lb)    2025 ACL (lb)
----------------------------------------------------------------------------------------------------------------
Uku.........................................         295,419          295,419          295,419          295,419
----------------------------------------------------------------------------------------------------------------


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                   Fishery                     2022 ACT (lb)    2023 ACT (lb)    2024 ACT (lb)    2025 ACT (lb)
----------------------------------------------------------------------------------------------------------------
Uku.........................................         291,010          291,010          291,010          291,010
----------------------------------------------------------------------------------------------------------------

    (b) When a bottomfish ACL or ACT is projected to be reached based 
on analyses of available information, the Regional Administrator shall 
publish a document to that effect in the Federal Register and shall use 
other means to notify permit holders. The document will include an 
advisement that the fishery will be closed beginning at a specified 
date, which is not earlier than seven days after the date of filing the 
closure notice for public inspection at the Office of the Federal 
Register, until the end of the fishing year in which the ACL or ACT is 
reached.
* * * * *
    (e) If the average total landings of uku in the most recent three 
years exceed the specified ACL in a fishing year, the Regional 
Administrator will reduce the uku ACL and ACT for the subsequent year 
by the amount of the overage in a separate rulemaking.
* * * * *
[FR Doc. 2021-27794 Filed 12-23-21; 8:45 am]
BILLING CODE 3510-22-P