[Federal Register Volume 72, Number 92 (Monday, May 14, 2007)]
[Rules and Regulations]
[Pages 27065-27067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9213]



National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 070418089-7089-01; I.D. 040507G]
RIN 0648-AV49

Fisheries in the Western Pacific; Bottomfish and Seamount 
Groundfish Fisheries; Closed Season

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

ACTION: Temporary rule; request for comments.


SUMMARY: This interim rule closes Federal waters in the main Hawaiian 
Islands to commercial and recreational fishing for seven deepwater 
bottomfish species during May 15 through September 30, 2007. This 
action is intended to immediately address overfishing for these species 
in the Hawaiian Archipelago while a long-term management program is 
developed for the bottomfish multi-species complex.

DATES: Effective 12:01 a.m. (0001 hrs) Hawaii-Aleutian Standard Time 
(HST) on May 15, 2007, until 11:59 p.m. (2359 hrs) HST on September 30, 
2007. Comments must be received on or before June 13, 2007.

ADDRESSES: You may submit comments, identified by ``0648-AV49'' by any 
of the following methods:
     E-mail: [email protected]. Include ``AV49'' in the 
subject line of the message. Comments sent via e-mail, including all 
attachments, must not exceed a file size of 10 megabytes.
     Federal e-Rulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Mail: William L. Robinson, Regional Administrator, NMFS 
Pacific Islands Region (PIR), 1601 Kapiolani Blvd. 1110, Honolulu, HI 
    In accordance with NEPA, an Environmental Assessment (EA) was 
prepared for this interim action, and is available from William L. 
Robinson (see ADDRESSES).



Electronic Access

    This interim rule is accessible via the World Wide Web at the 
Office of the Federal Register's web site www.gpoaccess.gov/fr/index.html.


    Bottomfish in Hawaii are managed according to the Fishery 
Management Plan for Bottomfish and Seamount Groundfish in the Western 
Pacific Region (Bottomfish FMP), which was developed by the Western 
Pacific Fishery Management Council (Council) and implemented by NMFS 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). Hawaii bottomfish are managed as 
a single archipelagic-wide multi-species stock complex (bottomfish 
complex). The bottomfish complex comprises certain deep-slope snappers, 
groupers, and jacks. Fisheries and management programs for Hawaiian 
bottomfish occur in two large geographic areas, the Northwestern 
Hawaiian Islands (NWHI) and the main Hawaiian Islands (MHI).
    Pursuant to Presidential Proclamation 8031 (June 15, 2006), 
commercial fishing in the area of the NWHI that is encompassed by the 
Papah naumoku kea Marine National Monument is limited to the eight 
valid Federal bottomfish permits effective on June 15, 2006. Bottomfish 
landings under these permits are limited to 350,000 lb (158,757 kg) 
annually, and may continue until June 15, 2011. Regulations codifying 
the terms of the Proclamation are found at 50 CFR 400.10. Regulations 
governing bottomfish fishing by U.S. vessels in accordance with the FMP 
appear at subpart H of 50 CFR part 600 and subpart E of 50 CFR part 
    NMFS, on behalf of the Secretary of Commerce, determined that 
overfishing was occurring on the bottomfish complex around the Hawaiian 
Archipelago, with the primary problem being excess fishing effort in 
the MHI. On May 27, 2005, NMFS requested the Council to take 
appropriate action to end overfishing (70 FR 34452, June 14, 2005).
    About 300 commercial vessels participate in the MHI bottomfish 
fishery, and recreational vessels are estimated at over 1,000. 
Fishermen use hooks and lines to target bottomfish over deep bottom 
slopes. Fishing trips are usually a day or less, and most fishermen 
participate in both bottomfish and pelagic (e.g., troll) fisheries. 
Except for a few full-time commercial bottomfish fishermen, most fish 
for bottomfish no more than 60 days a year. Many fishermen who fish for 
recreation also sell part of their catch to offset fishing expenses, 
making the distinction between recreational and commercial activities 
difficult. The total 2003 ex-vessel revenue from commercial bottomfish 
fishing in the MHI was an estimated $1,460,000 for landings of 273,000 
lb (123,831 kg). Data from the MHI commercial fishery are collected 
through the State of Hawaii commercial fishing report program. There is 
no data reporting requirement for recreational fishing; recreational 
data are collected through surveys.
    Based on 2003 data, NMFS had estimated that fishing mortality 
needed to be decreased by 15 percent from 2003 levels in the MHI to end 
overfishing in the Hawaiian Archipelago. Accordingly, the Council began 
preparation of an amendment to the Bottomfish FMP that would have 
proposed prohibiting recreational and commercial fishermen from fishing 
for seven deep-water bottomfish management unit species in Federal 
waters of Hawaii's Penguin Bank and Middle Bank. Historically, those 
areas represented 16-20 percent of MHI bottomfish landings, and would 
have ended the overfishing. The deep-water species are onaga Etelis 
coruscans, ehu E. carbunculus, gindai Pristipomoides zonatus, kalekale 
P. sieboldii, opakapaka P. filamentosus,

[[Page 27066]]

lehi Aphareus rutilans, and hapu[acute]upu[acute]u (also hapu[acute]u) 
Epinephelus quernus.
    In September 2006, NMFS updated the status of stocks using 2004 
data, and concluded that overfishing was still occurring, but that 
fishing effort in the MHI would have to be reduced by 24 percent from 
the 2004 level (greater than the 15 percent as targeted in the 
amendment being development) to bring archipelago-wide fishing 
mortality down to the maximum fishing mortality threshold. Although the 
Council had initially developed an FMP amendment to close Penguin and 
Middle Banks to bottomfish fishing, those management measures would be 
insufficient to reduce fishing effort by the required 24 percent.
    To immediately reduce fishing mortality while long-term management 
measures are developed, the Council requested at its 137th meeting in 
Honolulu, Hawaii, on March 15, 2007, that NMFS implement this interim 
rule to close all Federal waters around the MHI to commercial and 
recreational bottomfish fishing for the seven deep-water bottomfish 
management unit species during May through September 2007. This time 
period will maximize protection for bottomfish during their spawning 
season and minimize social and economic impacts to fishery 
participants, as other fishing opportunities are available during the 
summer, e.g., trolling for pelagic fishes. The closed season applies 
only in the MHI and will not affect importation of bottomfish into 
    This interim action is intended to immediately reduce fishing 
mortality in the short term, and provide a sufficient time period for 
the Council to develop an FMP amendment containing management measures 
designed to prevent overfishing in the long term. The effectiveness of 
this interim action would be enhanced by a complementary closure of 
State waters by the State of Hawaii, as collaborative Federal and State 
actions would facilitate the immediate cessation of fishing mortality 
in both Federal and State waters on the bottomfish stock complex that 
is experiencing overfishing.
    During the interim closed season from May through September 2007, 
Council and NMFS staffs will develop the management measures to be 
proposed in an FMP amendment. Such measures may include, but are not 
limited to, additional seasonal closures; a Total Allowable Catch (TAC) 
based on a reducing fishing mortality by 24 percent, the value from the 
most recent stock assessment, with a TAC mechanism that responds to 
necessary mortality reductions identified in future assessments; and a 
new Federal permit and data collection program for recreational 
bottomfish fishing. The revised recommendations are anticipated to be 
finalized by Council action in June 2007.


    This action responds to the best available information recently 
obtained from the fishery. The Assistant Administrator for Fisheries, 
NOAA, finds good cause to waive the requirement to provide prior notice 
and opportunity for public comment pursuant to the authority set forth 
at 5 U.S.C. 553(b)(B), as this requirement is impracticable and 
contrary to the public interest. The Council previously took action to 
prepare a plan amendment to address the overfishing by reducing fishing 
effort by 15 percent. Before that amendment could be implemented, 
however, updated information indicated that effort must be reduced by 
24 percent from 2004 effort levels. To respond to the new information, 
the Council must prepare a revised FMP amendment. In the meantime, no 
action has been taken to reduce fishing effort, and overfishing on 
bottomfish continues. There is a need to implement the seasonal closure 
immediately so that overfishing of the bottomfish stock complex can be 
addressed, and adverse impacts to public fishery resources can be 
reduced as soon as possible. These same reasons constitute good cause 
under authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in the effective date of this action.
    This interim rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A regulatory flexibility analysis has not been prepared for this 
interim rule pursuant to the Regulatory Flexibility Act because NMFS is 
not required by section 553 of Title 5 of the United States Code, or 
any other law, to publish a general notice of proposed rulemaking for 
this rule.

List of Subjects in 50 CFR Part 665

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

    Dated: May 9, 2007
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 

For the reasons set out in the preamble, 50 CFR part 665 is amended as 


1. The authority citation for part 665 reads as follows:

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

2. In Sec.  665.62, add new paragraphs (j) and (k) to read as follows:

Sec.  665.62  Prohibitions.

* * * * *
    (j) Fish for or possess any Hawaii Prohibited Bottomfish Management 
Unit Species, as specified in Sec.  665.71, in the Main Hawaiian 
Islands Management Subarea during a closed season in violation of Sec.  
    (k) Sell or offer for sale any Hawaii Prohibited Bottomfish 
Management Unit Species, as specified in Sec.  665.71, in violation of 
Sec.  665.72(a) or (b).

3. Under subpart E, add a new Sec.  665.71 to read as follows:

Sec.  665.71  Hawaii Prohibited Bottomfish Management Unit Species.

    Hawaii Prohibited Bottomfish Management Unit Species means the 
following species:

                 Common name                               Local Name                     Scientific Name
Silver jaw jobfish                             Lehi..............................             Aphareus rutilans
Squirrelfish snapper                           Ehu...............................            Etelis carbunculus
Longtail snapper                               Onaga.............................              Etelis coruscans
Pink snapper                                   Opakapaka.........................   Pristipomoides filamentosus
Snapper                                        Kalekale..........................      Pristipomoides sieboldii
Snapper                                        Gindai............................        Pristipomoides zonatus
Sea bass                                       Hapu[revaps]upu[revaps]u..........           Epinephelus quernus

[[Page 27067]]

4. Under subpart E, add a new Sec.  665.72 to read as follows:

Sec.  665.72  Closed seasons.

    (a) All fishing for, or possession of, any Hawaii Prohibited 
Bottomfish Management Unit Species, as specified in Sec.  665.71, is 
prohibited in the Main Hawaiian Islands Management Subarea during May 
15, 2007, through September 30, 2007, inclusive. All such species 
possessed in the Main Hawaiian Islands Management Subarea are presumed 
to have been taken and retained from that subarea, unless otherwise 
demonstrated by the person in possession of those species.
    (b) Hawaii Prohibited Bottomfish Management Unit Species, as 
specified in Sec.  665.71, may not be sold or offered for sale during 
May 15, 2007, through September 30, 2007, inclusive, except as 
otherwise authorized by law.
[FR Doc. E7-9213 Filed 5-11-07; 8:45 am]