[Federal Register Volume 73, Number 105 (Friday, May 30, 2008)]
[Proposed Rules]
[Pages 31047-31051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12127]



[[Page 31047]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 070720400-7483-01]
RIN 0648-AV30


Fisheries in the Western Pacific; Precious Corals Fisheries; 
Black Coral Quota and Gold Coral Moratorium

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would designate the Au`au Channel, Hawaii, 
black coral bed as an ``Established Bed'' with a harvest quota of 5,000 
kg every two years that applies to Federal and State of Hawaii waters, 
and would establish a 5-year moratorium on the harvest of gold coral 
throughout the U.S. western Pacific. The proposed rule is intended to 
prevent overfishing and achieve optimum yields of black coral 
resources, and to prevent overfishing and stimulate research on gold 
corals.

DATES: Comments on the proposed rule must be received by July 14, 2008.

ADDRESSES: Comments on the amendment, identified by 0648-AV30, may be 
sent to either of the following addresses:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov; or
     Mail: William L. Robinson, Regional Administrator, NMFS, 
Pacific Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, 
Honolulu, HI 96814-4700.
    Instructions: All comments received are a part of the public record 
and will generally be posted to www.regulations.gov without change. All 
personal identifying information (e.g., name, address, etc.) submitted 
voluntarily by the commenter may be publicly accessible. Do not submit 
confidential business information, or otherwise sensitive or protected 
information. NMFS will accept anonymous comments. Attachments to 
electronic comments will be accepted in Microsoft Word or Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of the Fishery Management Plan for the Precious Corals 
Fisheries of the Western Pacific Region (Precious Corals FMP), and 
proposed FMP Amendment 7, which includes an environmental assessment, 
regulatory impact review (RIR), and initial regulatory flexibility 
analysis (IRFA), are available from the Western Pacific Fishery 
Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 
96813, tel. 808-522-8220, fax 808-522-8226, or website 
www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Brett Wiedoff, NMFS PIR, 808-944-2272.

SUPPLEMENTARY INFORMATION: This Federal Register document is also 
accessible at the Office of the Federal Register at www.gpoaccess.gov/fr.
    Precious corals (also called deep sea corals) belong to the class 
of animals, Anthozoa, which includes corals, jellyfish, sea anemones, 
and their relatives. Gold corals are found in deep water (100-1,500 m) 
on solid substrates where bottom currents are strong. Black corals also 
live on solid substrates, but generally at depths of 30-110 m. Precious 
corals are suspension feeders, thriving in areas swept by strong 
currents, and are most abundant on substrates of shell sandstone, 
limestone, or basaltic rock with a limestone veneer. All precious 
corals are slow-growing and are characterized by low rates of natural 
mortality and recruitment. Unexploited populations are relatively 
stable, and a wide range of age classes is generally present. This 
life-history pattern (longevity and many age classes) has two important 
consequences with respect to exploitation. First, the population 
response to harvesting is drawn out over many years. Second, because of 
the great longevity of individuals and the associated slow population 
turnover rates, a long period of reduced fishing effort is required to 
restore a stock's ability to produce at the maximum sustainable yield 
if a stock has been over exploited for several years.
    Beds of gold, pink, and bamboo corals have been found in eight 
locations in the U.S. EEZ around Hawaii. They likely occur in the U.S. 
EEZ around American Samoa, the Commonwealth of the Northern Mariana 
Islands (CNMI), Guam, and the Pacific Remote Island Areas (PRIA, i.e., 
Baker Isl., Howland Isl., Jarvis Isl., Wake Atoll, Johnston Atoll, 
Kingman Reef, Midway Atoll, and Palmyra Atoll), but their distribution 
and abundance are unknown in areas beyond Hawaii. The species 
composition and density of corals vary considerably in these beds, and 
the beds are small--only two have an area greater than 1 km\2\ and the 
largest is 3.6 km\2\. In addition to the beds of gold, pink, and bamboo 
corals, there are also three known major black coral beds and several 
smaller ones. Most of these are located in State of Hawaii waters (0-3 
nm from shore), but the largest bed, the Au`au Channel Bed, extends 
into Federal waters.
    The Precious Corals FMP and Federal regulations require permits and 
data reporting, and allow harvesting of precious corals only with 
selective gear (e.g., submersibles or hand harvest). There are also 
bed-specific quotas, refuges from fishing (refugia), and size limits. 
Since the implementation of the Precious Corals FMP in 1980, no 
precious corals harvester has received a Federal permit to fish in U.S. 
EEZ waters around American Samoa, the CNMI, Guam, or the PRIA; there 
are currently no permitted operations for gold corals in the western 
Pacific.
    Black corals in Hawaii have historically been harvested by divers 
using conventional scuba gear. Hand-held tools are used to remove the 
black coral from the substrate, and float bags are used to lift the 
harvested colonies to the surface. The number of people participating 
in the commercial black coral fishery in Hawaii has been decreasing in 
recent years as experienced fishermen retire without new divers taking 
their place. In 2007, fewer than three fishermen applied for and 
received Federal permits to harvest precious corals in Hawaii.
    From 1990-97, the annual harvest of black coral in Hawaii averaged 
1,400 kg (3,084 lb). More recent landings of black corals are not 
presented in detail due to confidentiality requirements, but recent 
black coral landings have generally increased. Mixed-gas diving methods 
and rebreathers now enable divers to reach the maximum depths at which 
colonies of black coral are known to occur (about 110 m). Other 
technological advances, such as the global positioning system (GPS) and 
multibeam bathymetry maps, assist divers in harvesting black corals. 
These advances may lead to greater fishing pressure on black corals.
    Since 1980, almost all of the black coral harvested around the 
Hawaiian Islands has been taken from the Au`au Channel Bed. The 
Precious Corals FMP designates the Au`au Channel as Essential Fish 
Habitat (EFH) for precious corals. The bed is also a Habitat Area of 
Particular Concern (HAPC) for precious corals because of the ecological 
function it provides, rarity of the habitat type, sensitivity to human-
induced environmental degradation, and commercial importance.
    Research has shown that the biomass of the Au`au Channel black 
coral

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population has decreased by at least 25 percent in the last 30 years. 
Data collected during submersible dives showed a decline in both 
recruitment and relative abundance of legal-sized black coral colonies. 
The decline in recruitment may be related to both fishing pressure and 
competition with alien coral species. The highly-invasive soft coral, 
Carijoa riisei, or snowflake coral, has been found overgrowing large 
areas of black coral habitat. A recent submersible survey of the Au`au 
Channel Bed found Carijoa overgrowing and killing up to 70 percent of 
the black coral colonies at depths of 68-114 m. Although the fishery 
primarily harvests black coral at depths shallower than 70 m, the 
potentially-devastating snowflake coral, combined with fishing 
pressure, warrants management action and further research.
    This proposed rule would designate the Au`au Channel as an 
``Established Bed'' (Fig. 1) with a harvest quota for black coral of 
5,000 kg (11,023 lb) every two years. This quota would apply in both 
Federal and State of Hawaii waters, and all other existing Federal 
restrictions would continue to apply.
[GRAPHIC] [TIFF OMITTED] TP30MY08.000

    Currently-accepted estimates of the linear growth rate for gold 
coral are about 6.6 cm/yr, suggesting that large colonies are 
relatively young. These estimates are based on the assumption that 
growth rings are laid down annually, as in other precious corals (e.g., 
black and pink corals). Recent research, however, on the aging of gold 
corals using radiometric dating on three samples collected from the 
Makapu`u Bed and off of the island of Hawaii found that gold coral may 
grow at a much slower rate, possibly 0.004 to 0.0014 cm/yr, making some 
samples 450-2,740 years old. Similar research on large Atlantic gold 
coral colonies estimated their ages to be about 1,800 years. (By 
comparison, the oldest black corals observed in the Au`au Channel Bed 
are thought to be 75 years old, but black corals may live longer.) The 
slow growth rates of gold corals indicate that some gold coral colonies 
are thousands of years old and, thus, highly-susceptible to over-
harvesting.
    Unlike the active black coral fishery in Hawaii, the gold coral 
fishery in the U.S. western Pacific is dormant. With recent research 
results challenging current assumptions about gold coral growth rates, 
this proposed rule would place a five-year moratorium on the harvest of 
gold corals from all EEZ waters of the western Pacific region. 
Additional research results on gold coral age structures, growth rates, 
and correlations between length and age would be considered by the 
Council and NMFS prior to the expiration of the 5-year moratorium.
    This proposed rule is intended to prevent overfishing and achieve 
optimum yields of black corals, and to prevent overfishing and 
stimulate research on gold corals.
    To be considered, comments on this proposed rule must be received 
by July 14, 2008, not postmarked or otherwise transmitted by that date. 
In addition to soliciting public comments on this proposed rule, NMFS 
is soliciting comments on proposed FMP Amendment 7 through July 22, 
2008, as

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stated in the Notice of Availability published on May 23, 2008. Public 
comments on this proposed rule, if received by July 22, 2008, will also 
be considered in the approval/disapproval decision for Amendment 7. 
Comments received after that date will be considered for this proposed 
rule, but not in the approval/disapproval decision for Amendment 7.

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 Precious Corals FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    The Council prepared an Environmental Assessment for Amendment 7 
that evaluates the potential impacts of the proposed action and 
alternatives. Copies of the environmental assessment are available from 
the Council (see ADDRESSES). The purpose and need for the proposed 
action is twofold: (a) to reduce the effect that harvesting has on the 
decline in black coral biomass, thereby preventing overfishing and 
achieving optimum yield, and (b) to prevent the gold coral fishery from 
resuming, thereby preventing overfishing while research on growth rates 
is conducted. The anticipated impacts, as compared to the no-action 
alternative, of the preferred alternatives are summarized below.

Au`au Channel Black Coral Harvest Quota

    Under the preferred alternative (designation of the Au`au Channel 
black coral bed as an Established Bed with a harvest quota of 5000 kg 
every two years), the potential risk of overfishing black corals in the 
Au`au channel would be reduced because the proposed quota is 
significantly lower than recent harvests and would reduce fishing 
pressure on these resources. For this alternative to be fully 
effective, the entire bed would need to be managed by the quota; the 
State is developing management measures for a black coral quota in 
State waters of the Au`au Channel that would complement the proposed 
Federal quota there. The preferred alternative would have little to no 
impact on non-target species, as only selective gear can be used to 
harvest precious corals, eliminating most of the potential for catches 
of non-target species or degradation of their habitat. There would be 
neutral or beneficial impacts to protected resources (marine mammals, 
sea turtles, and seabirds), EFH, and HAPC, because this alternative 
would not lead to changes in fishing operations or to increased fishing 
effort. In the short-term, this alternative would likely reduce the 
harvests by some commercial fishermen in the Au`au channel fishery if 
the black coral fishery is closed as a result of reaching the quota. 
Stockpiled black coral (that which has been harvested but not yet sold) 
may serve to offset potential losses in the short- to medium-term 
following a closure of the Au`au Channel fishery. In the long-term, 
keeping harvests below the harvest quota would contribute to the 
sustainability of the fishery. The charter and recreational fishing 
sectors would not be affected under this alternative, as these sectors 
are not involved in the harvest of black corals. Fishing communities 
would not be affected by this alternative, as there are no communities 
that are substantially dependent on the harvest of precious corals to 
meet social and economic needs.

Gold Coral Harvest Moratorium

    Under the preferred alternative (a 5-year moratorium on harvest of 
live and dead gold coral), the potential risk of overfishing gold 
corals would be eliminated for five years, during which time further 
research into gold coral growth rates would be conducted. This would 
ensure that harvests of gold coral are sustainable. There would be 
neutral or beneficial impacts on non-target species and their habitat, 
protected resources, EFH, and HAPC. In the short-term this alternative 
could adversely impact potential commercial gold coral harvesters. 
Charter and recreational fishing sectors would not be affected, as 
these sectors are not involved in the harvest of precious corals. In 
the short-term, there could be adverse impacts on the region's economy 
by prohibiting the potential harvest of gold coral for five years and, 
in the long-term, there would be a positive impact on the regional 
economy by preserving opportunities for the future development of a 
sustainable and profitable gold coral fishery.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY section of the preamble. A copy of this analysis is 
contained in Amendment 7, available from the Council (see ADDRESSES). 
The analysis follows.
    NMFS prepared an IRFA for this rulemaking. The IRFA describes 
the economic impact this proposed rule, if adopted, would have on 
small entities. A description of the action, why it is being 
considered, and the legal basis for this action are contained in the 
preamble. There are no recordkeeping, reporting, or other compliance 
requirements associated with this rule. There are no Federal rules 
that duplicate, overlap, or conflict with this proposed rule. 
Furthermore, there are no disproportionate impacts from this rule by 
vessel size, gear type, or geographical location.

Description of Affected Entities

    There are three permitted vessels in the fishery for black 
coral, but only two have reported landings in Hawaii. Both vessels 
are considered to be small entities under the Small Business 
Administration definition of a small entity, 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 
annual gross receipts not in excess of $4 million. Specific net 
revenues by individual vessels cannot be analyzed in this IRFA due 
to confidentiality restraints, but potential economic impacts are 
discussed below. The fishery for gold coral also includes the same 
three vessels permitted to harvest black corals under a generic 
precious corals permit issued by NMFS. However, these vessels are 
currently dormant in the gold coral fishery, having no identifiable 
harvest in 2006, although modest commercial quotas of 20 kg (44 lb) 
for sites in the Main Hawaiian Islands and 67 kg (149 lb) for sites 
in the Northwestern Hawaiian Islands are specified.

Description of Alternatives

Au`au Channel Black Coral Harvest Quota

    Alternative A1: No Action. This alternative would continue to 
regulate the black coral fishery based on minimum sizes, not by 
maximum sustainable yield or geographic area.
    Alternative A2: Designate the Au`au Channel black coral bed as 
an Established Bed with an annual harvest quota of 5,000 kg every 
two years for the entire bed including State and Federal waters 
(Preferred Alternative). The Au`au Channel black coral bed would be 
designated as an Established Bed and harvests would be limited to 
5,000 kg every two years from both State and Federal waters 
combined. All other regulations would continue to apply. Minimum 
size regulations and gear restrictions would continue to apply.
    Alternative A3: Designate the Au`au Channel black coral bed as 
an Established Bed with an annual harvest quota of 5,000 kg every 
two years for Federal waters only. The Au`au Channel black coral bed 
would be designated as an Established Bed and harvests would be 
limited to 5,000 kg every two years from Federal waters only. All 
other

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regulations would continue to apply. Minimum size regulations and 
gear restrictions would continue to apply.

Western Pacific Gold Coral Moratorium

    Alternative B1: No Action. Gold coral harvests would continue to 
be regulated based on harvest quotas by area and gear restrictions, 
and no moratorium would be implemented.
    Alternative B2: Implement a five-year moratorium on live and 
dead gold corals (Preferred Alternative). A five-year moratorium on 
the harvest of live and dead gold corals would be implemented for 
the western Pacific while an associated research program further 
examines linear/axial growth, recruitment/mortality, and 
deterioration rates of gold coral. Bed-specific quotas and gear 
restrictions would not be required during this period. The 
moratorium may be renewed if the research program is not completed 
within the five years.
    Alternative B3: Implement a five-year moratorium on live gold 
coral. A five-year moratorium on the harvest of live gold corals 
would be implemented for the western Pacific while an associated 
research program further examines linear/axial growth, recruitment 
and mortality, and deterioration rates of gold coral. Bed quotas and 
gear restrictions would not be required during this period. The 
moratorium may be renewed if the research program is not completed 
within the five years.
    Alternative B4: Reduce the harvest quota by 50 percent of gold 
coral in all precious coral beds. Harvest quotas for gold coral 
would be reduced by 50 percent in all precious coral beds throughout 
the western Pacific. Gear restrictions would continue to apply. In 
2002, the Council recommended suspending the harvest quota for gold 
coral at the Makapu`u Bed as a precautionary measure expected to 
increase the probability that a recovery in the number of gold coral 
colonies at the Makapu`u Bed eventually occurs.

Economic Impacts to Small Entities

    Alternative A1. The implementation of the no-action alternative 
would have no economic impact to the two vessels currently engaged 
in the harvest of black corals in the Au`au Channel.
    Alternative A2 (Preferred). This alternative would reduce the 
harvests of black coral and, thus, could adversely affect both 
vessels currently engaged in the fishery. Due to confidentiality 
agreements, the amounts of the reductions, both absolute and on a 
relative basis, could not be reported here.
    Alternative A3. This alternative would not likely reduce the 
harvest, as most of the harvest comes from State waters, thus 
resulting in no or little economic impact to the two vessels engaged 
in the fishery.
    Alternatives B1, B2 (Preferred), B3, and B4. Because the gold 
coral fishery is currently dormant, there would be no impact to 
vessels from this rulemaking resulting from alternatives B1, B2, and 
B3. If the permitted vessels chose to reenter the fishery under 
alternative B4 (quota reduction), it would appear that there were 
positive economic impacts because of the movement from no fishing to 
fishing. However, a 50 percent quota reduction from current quota 
levels could not be construed to have positive economic impacts. For 
a discussion of impacts to the economy, please see the RIR in FMP 
Amendment 7.

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 23, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 665 is 
proposed to be amended as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

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

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  665.12, in the definition of ``Precious coral permit 
area'', the introductory text is republished and paragraph (1) is 
revised to read as follows:


Sec.  665.12  Definitions.

* * * * *
    Precious coral permit area means the area encompassing the precious 
coral beds in the management area. Each bed is designated by a permit 
area code and assigned to one of the following four categories:
    (1) Established beds. (i) Makapu`u (Oahu), Permit Area E-B-1, 
includes the area within a radius of 2.0 nm of a point at 21[deg] 18.0' 
N. lat., 157[deg] 32.5' W. long.
    (ii) Au`au Channel (Maui), Permit Area E-B-2, includes the area 
west and south of a point at 21[deg] 10' N. lat., 156[deg] 40' W. 
long., and east of a point at 21[deg] N. lat., 157[deg] W. long., and 
west and north of a point at 20[deg] 45' N. lat., 156[deg] 40' W. long.
* * * * *
    3. In Sec.  665.82, add a new paragraph (b)(5) to read as follows:


Sec.  665.82  Prohibitions.

* * * * *
* * * * *
    (b) * * *
    (5) In a bed that has been closed pursuant to Sec. Sec.  665.85 or 
665.90.
* * * * *
    4. Revise Sec.  665.83 to read as follows:


Sec.  665.83  Seasons.

    The fishing year for precious corals begins on July 1 and ends on 
June 30 the following year, except at the Makapu`u and Au`au Channel 
Beds, which have a two-year fishing period that begins July 1 and ends 
June 30, two years later.
    5. In Sec.  665.85, revise paragraph (a) to read as follows:


Sec.  665.85  Closures.

    (a) If the Regional Administrator determines that the harvest quota 
for any coral bed will be reached prior to the end of the fishing year, 
or the end of the 2-year fishing period at Makapu`u Bed or Au`au 
Channel Bed, NMFS shall publish a notice to that effect in the Federal 
Register and shall use other means to notify permit holders. Any such 
notice must indicate the reason for the closure, the bed being closed, 
and the effective date of the closure.
* * * * *
    6. Under subpart F, add a new Sec.  665.90 to read as follows:


Sec.  665.90  Gold coral harvest moratorium.

    Fishing for, taking, or retaining any gold coral in any precious 
coral permit area is prohibited through June 30, 2013.
    7. Revise Table 1 to part 665 to read as follows:

                                    Table 1 to Part 665 Precious Coral Quotas
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        Type of coral bed              Name of coral bed      Harvest quota in kilograms      Number of years
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Established Beds                  Au`au Channel               Black: 5,000                2
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                                  Makapu`u                    Pink: 2,000                 2
                                                              Gold: 0 (zero)              --
                                                              Bamboo: 500                 2
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Conditional Beds                  180 Fathom Bank             Pink: 222                   1
                                                              Gold: 67                    1
                                                              Bamboo: 56                  1
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                                  Brooks Bank                 Pink: 17                    1
                                                              Gold: 133                   1
                                                              Bamboo: 111                 1
                                 -------------------------------------------------------------------------------
                                  Kaena Point                 Pink: 67                    1
                                                              Gold: 20                    1
                                                              Bamboo: 17                  1
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                                  Keahole Point               Pink: 67                    1
                                                              Gold: 20                    1
                                                              Bamboo: 17                  1
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Refugia                           Westpac                     All: 0 (zero)               --
----------------------------------------------------------------------------------------------------------------
Exploratory Areas                 Hawaii,                     1,000 per area (all         1
                                  American Samoa,              species combined except
                                  Guam,                        black corals)
                                  U.S. Pacific Remote Island
                                   Areas
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Notes:
\1.\ No fishing for coral is authorized in refugia.
\2.\ A moratorium on gold coral harvesting is in effect through June 30, 2013.

[FR Doc. E8-12127 Filed 5-29-08; 8:45 am]
BILLING CODE 3510-22-S