Western Pacific Fisheries; Fishing in the Marianas Trench, Pacific Remote Islands, and Rose Atoll Marine National Monuments

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes to establish requirements for fishing in the Marianas Trench, Pacific Remote Islands, and Rose Atoll Marine National Monuments. The proposed rule is intended to implement fishery management measures consistent with Presidential Proclamations 8335, 8336, and 8337 that established the Monuments.

DATES:

NMFS must receive comments on the proposed rule by April 8, 2013.

ADDRESSES:

You may submit comments on this proposed rule, identified by NOAA-NMFS-2012-0070, by either of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0070 ,, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Send written comments to Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.

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), and will accept attachments to electronic comments in Microsoft Word, Excel, or Adobe PDF file formats only.

The Western Pacific Fishery Management Council (Council) prepared Amendment 3 to the Fishery Ecosystem Plan for the Mariana Archipelago, Amendment 2 to the Fishery Ecosystem Plan for the Pacific Remote Island Areas, Amendment 3 to the Fishery Ecosystem Plan for American Samoa, and Amendment 6 to the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific. The amendments are presented as a single document, which includes background information on this proposed rule, an environmental assessment, and a regulatory impact review. You may obtain the draft amendment document from www.regulations.gov or from the Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or from www.wpcouncil.org.

You may submit written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule to Michael D. Tosatto (see ADDRESSES) and by email to OIRA_Submission@omb.eop.gov or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

The Council and NMFS manage fisheries through fishery ecosystem plans for American Samoa, the Mariana Archipelago (Guam and the Commonwealth of the Northern Mariana Islands (CNMI)), the Pacific Remote Islands (PRI), Hawaii, and western Pacific pelagic fisheries. Fishing regulations for the western Pacific are found mostly in Title 50 of the Code of Federal Regulations, Part 665 (50 CFR 665).

In 2009, President Bush issued Presidential Proclamations that established three marine national monuments in the central and western Pacific under the authority of the Antiquities Act, as follows:

• Proclamation 8335 of January 6, 2009, “Establishment of the Marianas Trench Marine National Monument” (74 FR 1557, January 12, 2009).
• Proclamation 8336 of January 6, 2009, “Establishment of the Pacific Remote Islands Marine National Monument” (74 FR 1565, January 12, 2009).
• Proclamation 8337 of January 6, 2009, “Establishment of the Rose Atoll Marine National Monument” (74 FR 1577, January 12, 2009).

The proclamations recognize that it is in the public interest to preserve these submerged lands, waters, and marine resources, which are biologically diverse, contain sites of historical and scientific interest, and are essential to the long-term study of tropical marine ecosystems. For more detailed information regarding the marine resources and background for the management of the Monuments, please refer to the Proclamations, available at www.regulations.gov.

Among other things, the Proclamations define the Monuments' boundaries, prohibit commercial fishing, and describe the management of Monument resources. The Proclamations direct the Secretary of Commerce to take action under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to regulate fisheries and ensure proper care and management of the monument, including allowing for traditional indigenous fishing practices. The Council recommended incorporating the Proclamations' fishery management provisions into its fishery ecosystem plans, and recommended that NMFS establish certain provisions relating to traditional indigenous fishing practices. This proposed rule would implement the Council's recommendations.

The Marianas Trench Marine National Monument (Fig. 1) includes the waters and submerged lands of the three northernmost islands of the CNMI (Farallon de Pajaros (Uracas), Maug, and Asuncion, collectively the “Islands Unit”), the submerged lands of designated volcanic sites (“Volcanic Unit”), and the Marianas Trench (“Trench Unit”). The Pacific Remote Islands Marine National Monument (Figs. 2 through 6) includes the waters and submerged and emergent lands of Wake Island, Baker Island, Howland Island, and Jarvis Islands, Johnston Atoll, Kingman Reef, and Palmyra Atoll (“Pacific Remote Islands”), seaward to a distance approximately 50 nautical miles (nm). The Rose Atoll Marine National Monument in American Samoa (Fig. 7) includes the emergent and submerged lands and waters of Rose Atoll, seaward to a distance approximately 50 nm.

Consistent with the Proclamations, and based on recommendation from the Council, this proposed rule would create new subparts in 50 CFR Part 665, one for each of the three Monuments. Briefly, the proposed rule would implement new requirements as follows:

• Codify the boundaries of the Monuments and their various management units.
• Prohibit commercial fishing in the Pacific Remote Islands and Rose Atoll Monuments, and in the Islands Unit of the Marianas Trench Monument.
• Establish management measures for non-commercial and recreational fishing in the Monuments, including but not limited to the following:

○ Require Federal permits and reporting for non-commercial and recreational charter fishing to aid in the monitoring of fishing activities.

○ Allow customary exchange in non-commercial fisheries in the Marianas Trench and Rose Atoll Marine National Monuments to help preserve traditional, indigenous, and cultural fishing practices.

○ Define customary exchange as the non-market exchange of marine resources between fishermen and community residents for goods, and/or services for cultural, social, or religious reasons, and which may include cost recovery through monetary reimbursements and other means for actual trip expenses (ice, bait, food, or fuel) that may be necessary to participate in fisheries in the western Pacific.

○ Limit permit eligibility for non-commercial fishing to community residents, as identified in the fishery ecosystem plans—specifically, American Samoa, Guam and the CNMI are fishing communities—and limit permit eligibility for recreational charters to businesses of local fishing communities for the Rose Atoll Monument and Marianas Monument Islands Unit.

○ Prohibit all fishing within 12 nm of the Pacific Remote Islands, subject to U.S. Fish & Wildlife Service authority to allow non-commercial fishing in consultation with NMFS and the Council.

○ Prohibit all fishing within 12 nm around Rose Atoll. The Council and NMFS would review this regulation after three years.

• Prohibit the conduct of commercial fishing outside the Monument and non-commercial fishing within the Monument during the same trip.

NMFS would make administrative housekeeping changes to the Federal permit and reporting requirements at 50 CFR 665.13 and 665.14, and the vessel identification requirements at 50 CFR 665.16 to incorporate the new permits that this proposed rule would establish.

NMFS would also make administrative housekeeping changes to the requirements for low-use marine protected areas in the Pacific Remote Islands. NMFS currently allows limited fishing within certain areas of the Pacific Remote Islands (at Johnston Atoll, Palmyra Atoll, and Wake Island). Because this proposed rule would prohibit fishing within 12 nm of the islands, it supersedes the provisions allowing fishing in the low-use marine protected areas. To eliminate the potential conflicting requirements, NMFS would remove the provisions allowing limited take in the monument areas; specifically, the definition of the low-use area at 50 CFR 665.599, applicable permit provisions at 50 CFR 665.624, and the related prohibition at 50 CFR 665.625.

NMFS must receive any public comments on this proposed rule by the close of business on April 8, 2013, and will not consider late comments. In addition to soliciting public comments on this proposed rule, NMFS is soliciting comments through April 2, 2013, on proposed amendments to the Fishery Ecosystem Plans for the Marianas Archipelago, the Pacific Remote Island Areas, American Samoa, and Western Pacific Pelagics Fisheries, as stated in the Notice of Availability published on February 2, 2013 (78 FR 7385). The Secretary of Commerce will consider public comments on this proposed rule in the decision to approve, disapprove, or partially approve the FEP amendments, if NMFS receives such comments by April 2, 2013.

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 Fishery Ecosystem Plans for the Mariana Archipelago, the Pacific Remote Island Areas, American Samoa, and Western Pacific Pelagics Fisheries, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

Executive Order 12866

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The analysis follows.

In January 2009, President George W. Bush established, by Presidential Proclamations, three marine national monuments in the western Pacific. Consistent with these proclamations, this proposed rule would prohibit commercial fishing in the Rose Atoll and Pacific Remote Islands (PRI) Monuments, and within the Islands Unit of the Marianas Trench Monuments. The proposed rule would also establish provisions for managing non-commercial fishing activities in the Monuments. These provisions include, among other requirements: managing non-commercial fishing with Federal permit and reporting requirements to aid in the monitoring of fishing activities, limiting non-commercial fishing eligibility to residents and businesses of local fishing communities, allowing customary exchange, and creating certain no-take/no-fishing marine protected areas.

The proposed rule would apply to the following categories (as determined by the SBA) of small entities: commercial fishing vessels and recreational charter fishing vessels. NMFS believes that businesses operating as recreational charter and commercial fishing vessels in the Territories and in Hawaii would be considered small entities, with annual revenues below $7 million and $4 million, respectively. The proposed rule would apply to hundreds of vessels, regardless of gear type and size, many of which are primarily non-commercial fishing vessels that occasionally sell fish or take clients out on charter fishing trips. However, as discussed below, the rule will likely have little effect on overall commercial fishing and charter fishing activities relative to the status quo.

Fishing activity within the areas now contained in the Monuments has historically been low, even prior to the Proclamations. One recent study estimated that historically, about three trips with the primary purpose of fishing (commercial or non-commercial) were made annually to what is now the Islands Unit of the Marianas Trench Monument between 1970 and 2010. As for the PRI, commercial fishing within 50 nm of each island was prohibited by the Proclamation. Fishing activities around the Pacific Remote Island Areas (PRIA) outside the monument is currently low. As of January 2013, the type and number of PRIA fishing permits issued are as follows: PRIA troll handline (3), PRIA bottomfish (0), PRIA crustaceans (0), PRIA precious corals (0) and PRIA coral reef ecosystem (0). Longline and purse seine fishing has also occurred in the EEZ around the PRIA, outside Monument waters, in recent years. Within the PRI Monument, based on anecdotal information, a small amount of recreational fishing may be occurring by charter vessels visiting Palmyra Atoll from Hawaii. Fishing effort, both commercial and non-commercial, around Rose Atoll is unknown, but likely to be low, as most fishing occurs closer to the shoreline of more populated areas of Tutuila and Manua. With limited information on commercial, non-commercial, and recreational fishing in and around the Monuments, NMFS based the analysis provided in the Environmental Assessment in support of the proposed action assuming that 10 vessels each would make one non-commercial or charter fishing trip annually to the Marianas Trench, 10 vessels each would make one trip annually to Rose Atoll, and 15 vessels each would make one trip annually to PRI.

Commercial fishing within the Rose Atoll and PRI Monuments, and the Islands Unit of the Mariana Trench Monument was banned through the Proclamations in 2009, so this proposed rule only codifies an existing prohibition on commercial fishing. However, a few provisions of this proposed rule could potentially affect businesses operating commercial fishing and charter fishing vessels. The proposed action prohibits fishing vessels from conducting commercial fishing outside the Monument boundaries and non-commercial fishing inside the Monument during the same trip. Any fishermen who wish to sell fish caught during their trip would not be able to go to any of the Monuments to fish recreationally or non-commercially; this applies to all fishing vessels, as well as charter fishing vessels. This is likely to have little to no effect on revenues, as fishermen whose primary trip goal is to earn revenue, however modest, will choose not to fish non-commercially in Monument waters.

Recreational charter vessel owners and operators would generally be allowed to continue to take recreational charter fishing trips to the Monuments; however, they cannot sell, barter, or trade fish caught within the Rose Atoll and PRI Monuments, or fish caught within the Islands Unit of the Marianas Trench Monument, nor can they supplement trip fee revenues by selling fish caught outside of these Monument boundaries during non-commercial or recreational fishing trips into these areas.

In general, the primary revenue sources for charter fishing vessels are boat charter fees paid by customers, and any revenue earned from selling fish would supplement trip fees. Sales of fish caught outside the Rose Atoll and PRI Monuments, and the Islands Unit of the Marianas Trench Monument are still permitted, as long as no fish were caught inside those areas on the same trip. The restriction on supplemental fish sales is not expected to have a significant impact to small entities operating charter fishing trips to Rose Atoll and PRI Monuments or the Islands Unit of the Marianas Trench Monument because the overall number of recreational fishing trips to any of the three Monuments is likely to be less than ten to fifteen each year, and that number is likely very small relative to the total number of charter fishing trips by the affected vessels taken outside the Monuments annually.

Any fishermen wishing to fish non-commercially in Rose Atoll or in the Islands Unit of the Marianas Trench Marine National Monument would be subject to new community residency requirements under the proposed action. Fishermen who are community residents of American Samoa may fish in Rose Atoll, while those who wish to fish in the Islands Unit of the Marianas Trench Monument must be community residents of Guam or CNMI. These restrictions are necessary to ensure that customary exchange does not provide a toehold for commercial fishing, which is prohibited by the Proclamations. Residency requirements do not apply to those who wish to fish in PRI Monument or in the Volcano or Trench Units of the Marianas Trench Monument. A recreational fishing charter business operating in the Rose Atoll Monument must be legally established in American Samoa, and a recreational fishing charter business operating in the Islands Unit of the Marianas Trench Monument must be legally established in Guam or the CNMI. This could adversely affect U.S. charter fishing vessels that do not meet the community residency requirements that would otherwise choose to apply for a permit to fish in Rose Atoll or the Islands Unit. With the limited number of trips to these areas, and most, if not all, made by residents of the local fishing community, NMFS predicts that the new community residency requirements would affect few, if any, small entities.

Both recreational charter fishermen and non-commercial fishermen who wish to fish in the Monuments would be required to obtain Federal permits and complete logbook reports. These would be new requirements, except for non-commercial fishermen in the PRI Monument, who would be subject to existing permit requirements. The purpose of these requirements is to allow NMFS and the Council to track and evaluate non-commercial fishing in the Monuments. The time incurred to meet these requirements is estimated to be 15 minutes for each applicant to complete a permit application for each vessel annually and 20 minutes to complete a daily trip log sheet per trip. NMFS will charge a minor fee to process permit applications, the amount to be determined in accordance with the NOAA Finance Manual. Information provided as part of the permitting requirement includes vessel-specific information while information requested in the daily logbook reports include fish species caught and fishing location. Fulfilling these requirements is not expected to require any professional skills that vessel owner and operators do not already possess. Given the low number of non-commercial fishing trips taken by non-commercial fishermen, including small commercial entities, to the monuments, NMFS conservatively estimates that each permitted charter fishing vessel and non-commercial fishing vessel will take one trip to any of the Monuments per year. The environmental assessment for the proposed action estimates 35 non-commercial fishing permit applications per year. There is insufficient information to develop an estimate as to what proportion of these applications would be from businesses operating charter vessels, rather than non-commercial fishermen fishing for sustenance or to maintain traditional cultural practices.

NMFS also considered, among other alternatives, taking no action to implement the Council recommendation. Because commercial fishing within the Monuments has been banned under the Proclamations since 2009, the analysis of economic impacts to small entities of implementing the proposed action considers codifying the commercial fishing ban as part of the baseline economic environment, and does not consider the ban on commercial fishing within Monument waters as an incremental economic impact of implementing the proposed action. Continuing to take no action would have small positive economic impacts on commercial fishing and recreational charter fishing vessels relative to the preferred action because it would allow non-commercial fishing within the Monuments, would allow fishing vessel to conduct commercial fishing outside the Monument boundaries and non-commercial fishing inside the Monument during the same trip, and would not impose permitting and logbook requirements. However, the No Action Alternative does not meet the objective of establishing requirements for fishing activities in the Monuments, including managing non-commercial fishing as a sustainable activity.

The proposed rule 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. There does not appear to be disproportionate economic impacts from the proposed rule based on home port, gear type, or relative vessel size. The proposed rule also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.

As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

Paperwork Reduction Act

This proposed rule contains a collection-of-information requirement that has been submitted to and is subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). NMFS will provide the OMB control number for the information collection when OMB clears the collection-of-information. The public reporting burden is described below, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

For both types of non-commercial fishing (non-commercial and recreational charter) combined, NMFS expects to receive up to 10 permit applications each year for Rose Atoll and the Marianas Islands Unit, each, and up to 15 permit applications a year for the Pacific Remote Islands Monument, for a total of 35 applications in a year. NMFS estimates that an application would take 15 minutes to complete, for a total maximum burden of 8.75 hours. If each fishing trip is three days, there could be 105 logbooks (35 trips × 3 days) in a year. At 20 minutes per log sheet, the maximum reporting burden would be 35 hours per year. Therefore, NMFS expects the total maximum annual burden for permit applications and reporting to be 43.75 hr.

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 shall have 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 or any other aspects of the collection of information to Michael D. Tosatto (see ADDRESSES), and by email to OIRA_Submission@omb.eop.gov or by fax to 202-395-7285.

This final rule also contains a collection-of-information requirement subject to the PRA, and which has been approved by the Office of Management and Budget (OMB) under control numbers 0648-0360, -0361, -0584, -0586, and -0589. The one-time public reporting burden for vessel identification requirements is estimated at 45 minutes and $100 in supplies per vessel. This includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

List of Subjects in 50 CFR Part 665

• Administrative practice and procedure
• American Samoa
• Commercial fishing
• Commonwealth of the Northern Mariana Islands
• Fisheries
• Guam
• Marianas Trench
• Monuments and memorials
• Pacific Remote Islands
• Rose Atoll

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

PART 665—FISHERIES IN THE WESTERN PACIFIC

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

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

2. In § 665.12, add the definitions of “Customary exchange” and “Recreational fishing,” in alphabetical order, and revise the definition of “Non-commercial fishing” to read as follows:

3. In § 665.13,

a. Revise paragraphs (a), (c)(1), and (c)(2);

b. Revise paragraph (f)(2) introductory text, and add paragraphs (f)(2)(ix) through (f)(2)(xiii); and

c. Revise paragraph (g), to read as follows:

The revisions and additions read as follows:

4. In § 665.14 revise paragraphs (b)(1)(i) and (b)(2)(iv) to read as follows:

5. In § 665.16 revise paragraph (a)(3) to read as follows:

6. Revise § 665.599 to read as follows:

7. Remove and reserve § 665.624 paragraph (a)(1)(i) to read as follows:

8. Remove and reserve § 665.625 paragraphs (a) and (b)(3) to read as follows:

9. In 50 CFR part 665, add subparts G, H, and I to read as follows:

Subpart G—Marianas Trench Marine National Monument

Subpart H—Pacific Remote Islands Marine National Monument

Subpart I—Rose Atoll Marine National Monument