Fisheries of West Coast States and in the Western Pacific; Coral Reef Ecosystems Fishery Management Plan for the Western Pacific

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS issues a proposed rule that would implement those parts of the Fishery Management Plan for Coral Reef Ecosystems of the Western Pacific Region (CREFMP)that have been approved by NMFS. Coral reef ecosystem fisheries in federally managed waters of the western Pacific U.S. exclusive economic zone (U.S. EEZ) are currently unregulated under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The CREFMP, which was developed by the Western Pacific Fishery Management Council (Council), would apply ecosystem principles to fisheries management to conserve and protect coral reef fisheries, their ecosystems, and associated habitats in the U.S. EEZ around American Samoa, Guam, Hawaii (main Hawaiian Islands), the Commonwealth of the Northern Mariana Islands (CNMI), and the U.S. Pacific remote island areas (PRIA): Howland Island, Baker Island, Jarvis Island, Wake Island, Kingman Reef, Palmyra Atoll, and Johnston Atoll.

DATES:

Comments must be submitted in writing by October 24, 2002.

ADDRESSES:

Written comments should be sent to Dr. Charles Karnella, Pacific Islands Area Office (PIAO), NMFS, 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814. Comments will not be accepted if submitted via e-mail or the internet. Copies of the CREFMP, environmental impact statement (EIS), regulatory impact review (RIR), and initial regulatory flexibility analysis (IRFA) are available at the Council website, www. wpcouncil. org. Requests for a CD or paper copy of these documents can be made by contacting Jarad. Makaiau@noaa. gov. A copy of the Record of Decision issued by NMFS for the partially approved CREFMP is available at the PIAO website, http//swr. nmfs. noaa. gov/piao. Send comments regarding the reporting burden estimate or any other aspect of the collection-of-information requirements in this proposed rule to the NMFS address and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC00503 (Attn: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Kitty Simonds, Executive Director, Western Pacific Fishery Management Council, at (808) 522-8220 or Dr. Charles Karnella, Administrator, PIAO, at (808) 973-2937.

SUPPLEMENTARY INFORMATION:

The Council began development of the CREFMP in 1996, with the preparation of an assessment of the coral reef ecosystem resources. Initial scoping hearings were conducted by the Council in June 1999 to obtain public input on a new fishery management plan for these resources. A notice of availability soliciting public comment on the CREFMP's draft environmental impact statement (DEIS) was published in the Federal Register on January 12, 2001 (66 FR 1945). Although the comment period ended on February 26, 2001, additional comments were accepted during the month following the closing date.

Four major agency reviews were conducted to ensure completeness, accuracy, and compliance of the draft CREFMP with applicable laws. The Council also conducted 59 public meetings and hearings to receive comments on the draft document. These comments were incorporated into the text of the final CREFMP. The Council adopted the final CREFMP on June 20, 2001, and transmitted it to NMFS on March 8, 2002. A notice of availability was published in the Federal Register on March 18, 2002, 67 FR 11971. On June 14, 2002, NMFS partially approved the CREFMP and parallel amendments to the Council's management plans for bottomfish and seamount groundfish fisheries (Bottomfish FMP), pelagic fisheries (Pelagics FMP), precious coral fisheries, and crustacean fisheries of the western Pacific region. The CREFMP was approved, except for that portion of the CREFMP that governs fishing in waters of the U.S. EEZ around the Northwestern Hawaiian Islands (NWHI) west of 160°50′ W. long. NMFS disapproved a portion of the plan because it would be inconsistent with, or duplicate, certain provisions of Executive Order 13178 and 13196s, which together establish the NWHI Coral Reef Ecosystem Reserve (Reserve), as authorized by section 6(g) of Public Law 106-513. The Reserve encompasses a portion of the U.S. EEZ around the NWHI from the seaward boundary of the State of Hawaii, out to a distance of 50 nautical miles (nm). Specifically, section 7(b)(5) of Executive Order 13178, one of two executive orders that established the Reserve, prohibits the harvest of almost all living and non-living resources throughout the Reserve, while the CREFMP would actively manage the same species within the same geographical area. The bottomfish fishery in the NWHI will continue to be managed under existing management measures for the Bottomfish FMP, as authorized by the Magnuson-Stevens Act, while the process to designate a national marine sanctuary in the NWHI as directed by section 6(g) of Public Law 106-513, is ongoing. Coral reefs are highly complex, integrated ecosystems. The vast majority of the total area covered by coral reefs under U.S. jurisdiction is located in the western Pacific region and would be managed either by this new fishery management plan or by the NWHI Reserve management regime. The CREFMP adopts aprecautionary approach by addressing the potential for problems before they occur, and by establishing management measures that can be adapted rapidly in response to changes in the fishery. Although state and territorial regulations control most impacts from coral reef ecosystem fisheries in near-shore areas, the CREFMP would complement those regulations by implementing measures to manage coral reef ecosystems in adjacent Federal waters of the U.S. EEZ. In general, these areas have been minimally exploited, but potential fisheries, including those for live fish markets in Southeast Asia, coral and “live rock” for the U.S. aquarium trade, and marine bioprospecting for pharmaceutical uses, may develop and are addressed within the CREFMP.

The CREFMP has eight objectives: (1) Foster sustainable use of coral reef ecosystem resources in an ecologically and culturally sensitive manner; (2) provide a flexible and responsive management program for coral reef ecosystem resources that allows for rapid adjustments to management measures in response to changes in resource abundance, new scientific information, or changes in fishing patterns; (3) establish integrated resource data collection and permitting systems, including a research and monitoring program to collect fishery and other ecological information necessary to make informed management decisions about coral reef ecosystems in the U.S. EEZ; (4) minimize adverse human impacts on coral reef ecosystem resources by establishing new and improving existing marine protected areas (MPAs), managing fishing pressure, controlling wasteful harvest practices, reducing other anthropogenic stressors directly affecting coral reef ecosystem resources (through the conservation and protection of essential fish habitat (EFH) and allowing the recovery of naturally balanced reef ecosystems); (5) improve public and government awareness and understanding of coral reef ecosystems, their vulnerability and resource potential so as to reduce adverse human impacts and foster support for science-based management; (6) facilitate collaborative effort among agencies and organizations concerned with the conservation of coral reef ecosystems in order to share in decision-making, data, and resources needed to effectively monitor the vast and complex coral reef ecosystems managed under the CREFMP; (7) encourageand promote surveillance and enforcement in support of CREFMP management measures; and (8) provide for sustainable participation by fishing communities in coral reef ecosystem fisheries and, to the extent practicable, minimize adverse economic impacts on such communities.

Relation to Other Laws

In order to ensure consistency between the management regimes of different Federal agencies, NMFS is adding language to the proposed rule that states that unless specifically authorized by the U.S. Fish and Wildlife Service (USFWS), fishing authorized under Subpart J—Western Pacific Coral Reef Ecosystem Fisheries is not allowed within the boundary of a wildlife refuge regardless of whether that refuge was established by action of the President or the Secretary of the Interior. Contact the USFWS at 808-541-1291 for more information and boundary details.

Amendments to Existing FMPS

To ensure consistency with the proposed regulations of the CREFMP, the Council would amend its existing fishery management plans for bottomfish and seamount groundfish fisheries, crustacean fisheries, pelagic fisheries, and precious coral fisheries. Fishing for management unit species (MUS) included in these existing plans would be prohibited in the CREFMP no-take MPAs. The Council initially proposed an insurance requirement for all vessels managed under these fishery management plans while operating in or transiting through the coral reef ecosystem MPAs. This measure was intended to provide the means for mitigating reef damage in the event of a vessel grounding or an oil spill in the coral reef ecosystems, including the possibility for wreck removal and reef recovery activities. The FMP did not set forth the details of this complex and novel issue. As a result, the insurance requirement is not included in this proposed rule; however, the Council will continue to address appropriate means to provide for reef protection. Finally, the MUS list for the Pelagics FMP would be amended to include only the following species of pelagic sharks: Alopias pelagicus (pelagic thresher shark), Alopias superciliousus (bigeye thresher shark), Alopias vulpinus (common thresher shark), Carcharhinus falciformis (silky shark), Carcharhinus longimanus (oceanic whitetip shark), Prionace glauca (blue shark), Isurus oxyrinchus (shortfin mako shark), Isurus paucus (longfin mako shark), and Lamna ditropis (salmon shark). The remaining coastal sharks currently listed as MUS in the Pelagics FMP would become CREFMP MUS. Dogtooth tuna would also change from a Pelagics FMP MUS to a CREFMP MUS. This revision to the Pelagics FMP MUS would closely reflect the species associated with the respective ecosystems for each plan and provide for more accurate data gathering without affecting fisheries operations.

Management Area

The coral reef ecosystem management area consists of the U.S. EEZ around American Samoa, Guam, Hawaii, PRIA, and the Commonwealth of the Northern Mariana Islands (CNMI). For American Samoa, Guam, and Hawaii, the management area would generally occur between 3 nm and 200 nm from shore; in some areas, the outer boundary of the U.S. EEZ is truncated by adjacent international maritime boundaries. Management measures are proposed only for the “offshore zone”, which consists of those waters from 3 to 200 nm. The management area for the PRIA (Kingman Reef, Johnston and Palmyra Atolls, and Jarvis, Howland, Baker, and Wake Islands) begins at the shoreline and extends offshore 200 nm (seaward boundary of the U.S. EEZ). Kingman Reef, Johnston and Palmyra Atolls, and Jarvis, Howland, and Baker Islands are National Wildlife Refuges managed by the USFWS. Fisheries management responsibilities in the PRIA and Rose Atoll will be shared by the Council, NMFS and the USFWS. Because the CNMI EEZ includes all waters from the shoreline to 200 nm, this would comprise the management area. For the purposes of this rule, those waters for which management measures are proposed are collectively termed the “coral reef ecosystem regulatory area”, which includes the U.S. EEZ waters of the western Pacific region, with the exception of EEZ waters within 3 miles of the shoreline of the CNMI and the EEZ around the NWHI west of 160°50′ W. long.

Coral Reef Ecosystem MUS

CRE-MUS are defined as those taxa listed in Table 1. 2 and 1. 3 of the CRE-FMP that spend the majority of their non-pelagic (post-settlement) life stages within waters less than or equal to 50 fathoms in total depth. These MUS are separated into two lists: “Currently harvested coral reef taxa” (CHCRT) and “potentially harvested coral reef taxa” (PHCRT). CHCRT consists of coral reef associated species, families, or subfamilies, as described in Table 1. 2 to the CREFMP, that have annual landings greater than 454. 54 kg (1,000 lb) as reported on individual state, commonwealth, or territory catch reports or through creel surveys. Fisheries and research data for many of these species have been analyzed by regional management agencies. PHCRT consists of coral reef associated species, families, or subfamilies, as described in Table 1. 3 to the CREFMP, for which little or no information is available beyond general taxonomic and distribution descriptions. These species have either not been caught in the past or have been harvested annually in amounts less than 454. 54 kg (1,000 lb). Species that occur in the coral reef ecosystem that are not managed, i. e., not listed as management unit species under the Council's other fishery management plans, would be similarly categorized. NMFS is specifically soliciting public comments on these MUS definitions.

Principal Management Measures

The proposed rule contains four types of management measures, (MPAs, permits and monitoring, fishing gear methods, and other management measures) which, unless otherwise specified, would apply throughout the regulatory area.

MPAs

Based on their natural resource values, human use and historic values, impacts of human activities, and management concerns, this rule would establish MPAs within the U.S. EEZ waters around the PRIA and Rose Atoll in American Samoa. Ecologically sensitive areas would be designated as no-take MPAs, in which all harvesting activities would be prohibited. These no-take MPAs would be located in waters of the U.S. EEZ seaward from the shoreline to the 50-fathom (fm) (91.5-m) curve (isobath) at Jarvis, Howland, and Baker Islands, Kingman Reef and Rose Atoll. Low-use MPAs would be located in waters of the U.S. EEZ between the shoreline and the 50-fm (91.5-m) curve around Johnston Atoll, Palmyra Atoll, and Wake Island.

In low-use MPAs, most existing fishing activities, primarily recreational fishing by residents on Palmyra, could be permitted under special permits. The CREFMP does not abolish or amend prohibitions or restrictions on fishing imposed under other Federal laws, such as the National Wildlife Refuge System Administration Act. In other words, no special permits issued under these regulations would allow fishing within the boundary of a national wildlife refuge unless such fishery is also authorized by the USFWS. Fisheries governed under the Council's other fishery management plans and operating in low-use MPAs would continue to abide by the permit and reporting requirements established under those plans. Minimum insurance coverage against vessel groundings and oil spills is not included in this proposed rule at this time for reasons explained earlier; however, the Council will continue to explore options to help mitigate adverse impacts resulting from potential vessel groundings in the coral reef ecosystems in the U.S. EEZ. Although not an MPA in the sense of having fishing or permitting restrictions, Guam's Southern Banks is designated as a no-anchoring zone.

Permits and Monitoring

In general, any person who harvests coral reef ecosytem MUS in low-use MPAs would be required to have a Federal special permit issued by NMFS. Issuance of special permits would be on a case-by-case basis and based upon several factors including the potential for bycatch, the sensitivity of the area to the type of fishing proposed, and the level of fishing occurring in relation to the level considered sustainable in a low-use MPA. A person permitted and targeting non-CRE MUS under other fishery management plans would not be required to obtain a special permit to fish in low-use MPAs. In addition to the permit requirement for low-use MPAs, special permits would be required for any directed fisheries on PHCRT within the regulatory area. The harvest of live rock and living corals would be prohibited throughout the federally managed U.S. EEZ waters of the region (except 0-3 miles around CNMI); however, under special permits with conditions specified by NMFS following consultation with the Council, indigenous people could be allowed to harvest live rock or coral for traditional uses, and aquaculture operations could be permitted to harvest seed stock. The proposed rule would implement a Federal reporting system for all fishing under special permits. Resource monitoring systems administered by state, territorial, and commonwealth agencies would continue to collect fishery data on the existing coral reef fisheries that do not require special permits.

Fishing Gears and Methods

Fishing gear has the potential to adversely impact coral reef ecosystems. The CREFMP lists both allowable fishing gear types and fishing methods for targeting MUS. The listing of allowable gear types and methods is based on: (1) Impact on habitat; (2) potential for bycatch; and (3) degree to which fish may find refuge from capture. The proposed list of allowable gear types is: (1) Hand harvest; (2) spear; (3) slurp gun; (4) hand/dip net; (5) hoop net for Kona crab; (6) throw net; (7) barrier net; (8) surround/purse net that is attended at all times; (9) hook-and-line (powered and unpowered handlines, rod and reel, and trolling); (10) crab and fish traps with vessel ID number affixed; and (11) remote operating vehicles/submersibles. New fishing gears that are not included in the allowable gear list may be allowed under the special permit provision. The proposed rule would prohibit SCUBA-assisted spearfishing at night within U.S. EEZ waters around the PRIA.

Other Management Measures

Adaptive Management

A framework process, providing for an administratively simplified procedure to facilitate adjustments to management measures previously analyzed in the CREFMP, is an important component of the CREFMP. These potential framework measures include designating “no-anchoring” zones and establishing mooring buoys, requiring vessel monitoring systems on board fishing vessels, designating areas for the sole use of indigenous peoples, and including species not specifically listed as PHCRT under the “special permit” regime as warranted. A general fishing permit program could also be established for all U.S. EEZ coral reef ecosystem fisheries under the framework process of the CREFMP.

Other Actions

The CREFMP also contains non-regulatory measures consistent with CREFMP objectives that would be undertaken by the Council outside of the regulatory regime. These include a process and criteria for EFH consultations; formal plan team coordination to identify and to address coral reef ecosystem impacts from existing FMPs fisheries; a system to facilitate consistent state and territorial level management; and research and education efforts.

Classification

With the exception of provisions of the CREFMP that have been disapproved, NMFS has determined that the CREFMP and the parallel amendments to the bottomfish and seamount groundfish fisheries, pelagic fisheries, crustacean fisheries, and precious coral fisheries fishery management plans that this rule would implement are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.

The Council prepared an Final Environmental Impact Statement (EIS) for the CREFMP; a notice of availability was published on May 10, 2002 (67 FR 31801). On June 14, 2002, in partially approving the CREFMP, NMFS issued a Record of Decision identifying the selected alternative, a variation of the preferred alternative in the EIS. The intent of the partially approved CREFMP and its proposed implementing rule (i. e., selected alternative) is to prevent harmful activities and adverse impacts to the environment before they occur. This proposed rule is expected to maintain the sustainability of target and non-target species; safeguard against substantial damage to the ocean and coastal habitats and/or EFH;protect endangered or threatened species, marine mammals, and critical habitat; help ensure public health and safety; prevent the occurrence of cumulative adverse effects that could have a substantial effect on the target species or non-target species; promote biodiversity and ecosystem function within the affected area; and minimize, if not eliminate, negative social or economic impacts.

This proposed rule has been determined to be significant for purposes of Executive Order 12866.

The Council prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities. The IRFA is available from the Council (see ADDRESSES). A summary of the IRFA follows.

The need for and objectives of this proposed rule are stated in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this document and are not repeated here. This action is taken under authority of the Magnuson-Stevens Act and regulations at 50 CFR part 660.

All commercial fishing operations affected by this proposed rule are considered to be small entities under guidelines issued by the Small Business Administration because they are independently owned and operated, and have annual receipts not in excess of $3. 5 million. Based on information provided in the IRFA, this proposed rule would potentially affect 24 to 63 entities, including commercial harvesters of food fish, ornamental fish collectors, charter sportsfishing operations, and research entities. It is difficult to predict how many entities would alter their planned operations by fishing in state waters or moving to other target species to avoid applying for special permits and complying with increased reporting requirements under this proposed rule. However, NMFS believes that initially approximately five special permit applications will be received each year.

It is estimated that the costs to these small entities will primarily consist of a special permit application fee of between $50 and $100 per application. It is not anticipated that many additional entities (beyond those holding special permits) will be affected by this measure, as the proposed MPAs are located far from inhabited areas and the majority of other fisheries operate outside of proposed MPA waters utilizing gears that would continue to be allowed under this proposed rule. However, small entities using fish or crab traps to target CRE MUS throughout the regulatory area will be required to affix identification markers to each trap on board a vessel or deployed in the water. Based on similar requirements in other fisheries, the cost of this requirement is anticipated to be minimal, as identification markings may be inexpensively made using permanent ink, paint, or dye. Other, non-quantifiable, potential costs include revenue impacts resulting from the implementation of no-take MPAs. This action has information collection requirements that are addressed elsewhere in this classification section.

Several alternatives to these proposed measures are examined in the IRFA. Please note that the impacts of the proposed measures (selected alternative) will be less than the preferred alternative because the NWHI commercial bottomfish fishery will not be affected under the partially approved CREFMP (see Record of Decision). The first alternative is the no action alternative, which would not impose any economic costs on small entities. This alternative was rejected on the basis that it could lead to unsustainable levels of fishing effort and eventual degradation of coral reef ecosystems and their component resources. The second alternative examined is similar to the selected alternative with the following exceptions. It would not designate any no-take MPAs (low-use MPAs would be designated). It would not implement any prohibitions on nighttime fishing for coral reef ecosystem MUS with SCUBA/hookah gear, and it would not prohibit the take of live rock or coral throughout the regulatory area. This alternative was also rejected on the basis that it would not provide sufficient protection to coral reef ecosystems or their component resources. Finally, the third alternative examined would designate no-take MPAs out to 100 fathoms around all western Pacific islands and atolls (no low-use MPAs would be designated); require general permits for harvest of all CHCRT and special permits for harvest of all PHCRT throughout the western Pacific U.S. EEZ; prohibit all spearfishing with SCUBA/hookah throughout the U.S. EEZ; and prohibit the take of live rock or coral throughout the U.S. EEZ. This alternative was rejected on the basis that it would unnecessarily impede the sustainable use of coral reef ecosystem resources, as the selected alternative would provide adequate conservation and protection for these resources.

A copy of this analysis is available from the Council for public review and comment.

This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval. Public reporting burden for these collections of information is estimated to average 2 hours per response for a permit application, 3 hours for a permit appeal, 30 minutes per day for a fishing record, 15 minutes per day for a transshipment log, 3 minutes for an at-sea notification prior to landing, and 2 minutes per trap to mark fishing gear. These estimates include the 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 this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and 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 and any other aspects of the collection regarding these burden estimates or any other aspect of the collection of information to PIAO at the ADDRESSES above, and to the OMB at the Office of Information and Regulatory Affairs, OMB, Washington, DC20503 (Attention:NOAA Desk Officer).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of informationsubject to the requirements of the PRA, unless the collection of information displays a currently valid OMB Control Number.

On March 7, 2002, an informal Endangered Species Act section 7 consultation was completed by NMFS' Southwest Region, Office of Sustainable Fisheries, and concluded by NMFS' Southwest Region, Office of Protected Resources regarding the CREFMP. It was determined that the proposed action is not likely to adversely affect any endangered or threatened resources or critical habitat under NMFS's jurisdiction. On May 22, 2002, the USFWS concurred with the determination of NMFS that the activities proposed in the CREFMP are not likely to adversely affect listed species (i. e., seabirds and terrestrial plants) and listed species shared with NMFS (i. e., sea turtles under its jurisdiction).

This proposed rule is consistent with Executive Order 13089, which is intended to preserve and protect the biodiversity, health, heritage, and social and economic value of U.S. coral reef ecosystems and the marine environment.

List of Subjects in 50 CFR Part 660

• Administrative practice and procedure
• American Samoa
• Fisheries
• Fishing
• Guam
• Hawaiian Natives
• Indians
• Northern Mariana Islands, and Reporting and recordkeeping requirements

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

PART 660 FISHERIES OFF WEST COAST STATES AND IN THE WESTERN PACIFIC

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

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

2. In § 660.11, paragraph (b) is revised, and a new paragraph (c) is added to read as follows:

(b) Regulations specific to individual fisheries are included in subparts C, D, E, F, and J of this part.

(c) Nothing in subparts C, D, E, F, and J of this part is intended to supercede any valid state or Federal regulations that are more restrictive than those published here.

3. Section 660.12 is amended by revising the introductory text and the definition for “Pacific pelagic management unit species”; and adding definitions for the “Commonwealth of the Northern Mariana Islands (CNMI)”, “CNMI offshore area”, “Coral reef ecosystem management area”, “Coral reef ecosystem management unit species”, “Coral reef ecosystem regulatory area”, “Hookah breather”, “Live rock”, “Low use marine protected area”, “No-take marine protected area”, and “Special permit”, alphabetically to § 660.12 to read as follows:

4. In § 660.13, paragraph (a), the first sentence of paragraph (c)(1), the first and second sentences of paragraph (c)(2), and paragraphs (e), (f)(2), and (g)(1) are revised to read as follows:

5. In § 660.14, paragraphs (a), (b), and (g) are revised and paragraph (f)(4) is added to read as follows:

6. In § 660.15, paragraphs (f) and (k) are revised and a new paragraph (l) is added to read as follows:

7. In subpart B, § 660.18 is added to read as follows:

8. A new subpart J is added to read as follows:

Subpart J—Western Pacific Coral Reef Ecosystem Fisheries

Subpart J—Western Pacific Coral Reef Ecosystem Fisheries