[Federal Register Volume 73, Number 167 (Wednesday, August 27, 2008)]
[Rules and Regulations]
[Pages 50572-50574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19870]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No.0808191118-81120-01]
RIN 0648-AX19


Fisheries in the Western Pacific; Bottomfish and Seamount 
Groundfish Fisheries; Main Hawaiian Islands Bottomfish; Delay of 
Fishery Opening

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

ACTION: Temporary rule for emergency action; delay of fishery opening; 
request for comments.

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SUMMARY: NMFS is delaying until November 15, 2008, the opening of the 
commercial and non-commercial fisheries in the main Hawaiian Islands 
(MHI) for seven deepwater bottomfish species (``Deep 7'' bottomfish). 
This emergency rule to delay the fishery opening is necessary to 
prevent overfishing and ensure that regulations specifying the total 
allowable catch (TAC) are based on the best available scientific 
information. This emergency rule is also necessary to complement State 
of Hawaii regulations that will delay the opening of the fishery in 
State waters, thereby preventing confusion by the public caused by 
conflicting Federal and State regulations, and minimizing any resulting 
enforcement difficulties for the State.

DATES: This emergency rule is effective August 22, 2008 through 
November 14, 2008.
    Comments on this emergency rule must be received by September 11, 
2008.

ADDRESSES: Comments on this rule, identified by 0648-AX19, 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: Mail written comments to 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 (enter ``N/A'' in the 
required fields, if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word or Excel, 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR, 808-944-2271.

SUPPLEMENTARY INFORMATION: The bottomfish fishery in Federal waters 
around Hawaii is managed under the Fishery Management Plan for 
Bottomfish and Seamount Groundfish Fisheries of the Western Pacific 
Region (Bottomfish FMP), 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). Regulations governing bottomfish fishing by 
U.S. vessels in accordance with the Bottomfish FMP appear at 50 CFR 
part 665 and at subpart H of 50 CFR part 600.
    On April 4, 2008, NMFS published a final rule (73 FR 18457) that 
implemented Amendment 14 to the Bottomfish FMP to end the overfishing 
of bottomfish in the Hawaiian Archipelago. The regulations established 
by Amendment 14 at Sec.  665.72 authorize NMFS to set an annual TAC 
limit for Deep 7 bottomfish, as recommended by the Council and based on 
the best available scientific, commercial, and other information, and 
taking into account the associated risk of overfishing. The Deep 7 
bottomfish are onaga (Etelis coruscans), ehu (E. carbunculus), gindai 
(Pristipomoides zonatus), kalekale (P. sieboldii), opakapaka (P. 
filamentosus), lehi (Aphareus rutilans), and hapu'upu'u (Epinephelus 
quernus). The fishery is monitored using information reported by 
holders of State commercial marine licenses (State CML) through monthly 
catch reports submitted to the State. Beginning with the 2008-09 MHI 
bottomfish fishing year, fish catch and effort information from non-
commercial fishermen who fish for bottomfish in Federal waters around 
Hawaii are obtained through a Federal logbook program administered by 
NMFS. This information is used in combination with the State catch 
reports to monitor the annual TAC.
    When the TAC for the year is projected to be reached, NMFS is 
required to publish notification that the fishery will be closed 
beginning on a specified date until the end of the fishing year in 
which the TAC is reached. During the closure, no person may fish for, 
possess, or sell any Deep 7 bottomfish in the MHI, except as otherwise 
authorized by law. Specifically, fishing for, and the resultant 
possession or sale of, Deep 7 bottomfish by vessels legally registered 
to Mau Zone, Ho omalu Zone, or Pacific Remote Island Areas bottomfish 
fishing permits, and conducted in compliance with all other laws and 
regulations, are not affected by the closure. There is no prohibition 
on fishing for or selling other non-Deep 7 bottomfish species 
throughout the year.
    For the 2007-08 fishing year, the TAC was established by the 
Council at 178,000 lb (80,739 kg) (73 FR 18718, April 7, 2008). 
Monitoring of the fishery indicated that the MHI bottomfish fishery 
harvested the TAC in April 2008. In accordance with regulation Sec.  
665.72, and as a result of reaching the TAC, NMFS published a temporary 
rule closing the fishery on April 16, 2008 (April 7, 2008; 73 FR 
18717), and a related correction notice (73 FR 20001; April 14, 2008). 
The fishery is scheduled to reopen on September 1, 2008, the date the 
temporary rule expires.
    The Council held its 142nd meeting in Honolulu in June 2008. At 
that meeting, the Council learned that additional data had been 
obtained for the fishery and that the new data were integral to the 
analysis by NMFS to update the bottomfish stock assessment. An updated 
stock assessment provides the best scientific basis upon which the 
Council can make its recommendation on a TAC. Inasmuch as an updated 
bottomfish stock assessment was not available at the June meeting, the 
Council was not able to recommend a TAC in accordance with the best 
scientific information available, as required by regulation Sec.  
665.72(a) and Magnuson-Stevens Act National Standard 2. The new stock 
assessment is to be available before the Council's next meeting in 
October 2008.

[[Page 50573]]

Accordingly, the Council, by majority vote, recommended that NMFS delay 
the opening of the fishery until November 15, 2008.
    NMFS has been informed that the State will be taking action to 
extend the temporary closure to bottomfish fishing in State waters 
around the MHI from August 31 until November 14, 2008, and is expecting 
NMFS to do the same for Federal waters.
    This delay in opening the fishery is necessary to prevent 
overfishing of Hawaiian bottomfish. From 1990-2004, annual commercial 
landings of Deep 7 bottomfish caught in Federal waters of the MHI 
ranged from approximately 29,000 to 81,000 lb (13,154 to 36,741 kg). 
The catch during September and October of each year during the same 
period ranged from 27,000 to 62,000 lb (12,247 to 28,123 kg), 
representing 13 to 24 percent of the Deep 7 species landed annually by 
commercial fishermen from Federal waters.
    The potential contribution of the catch from Federal waters to 
overfishing of Hawaiian bottomfish is clear when one considers the 
relative portion of landings from Federal waters to the total Deep 7 
bottomfish landings from both State and Federal waters. Annually, the 
landings from Federal waters during 1990-2004 comprised 12 to 25 
percent of the total MHI landings. September landings from Federal 
waters made up 6 to 24 percent of the MHI total, and October landings 
comprised 10 to 28 percent of the total. Non-commercial landings of 
Deep 7 bottomfish are currently unknown, but they certainly add to the 
mortality of Deep 7 bottomfish, and are believed to be substantial.
    Thus, in the absence of a TAC, any fishing for Deep 7 bottomfish 
during September and October could potentially worsen overfishing in 
the MHI. The delay in opening the fishery is necessary to prevent 
overfishing in, and preserve sustainable management of, the bottomfish 
fishery, based on the best scientific information available. Without 
the emergency rule to delay the opening, a TAC cannot be published that 
would be consistent with Magnuson-Stevens Act National Standard 1 
(preventing overfishing) and National Standard 2 (being based on the 
best available scientific information). To allow the fishery to open 
without a TAC would, moreover, be contrary to existing management 
regulations intended to end bottomfish overfishing, create extreme 
confusion among the public, and affect the joint effort of the Council, 
NMFS, and the State in addressing the overfishing condition of 
bottomfish complex in the MHI. In addition, the inconsistency between 
State and Federal regulations would seriously compromise the State's 
enforcement abilities to extend the closure of the Deep 7 bottomfish 
fishery in State waters until mid-November 2008.

Classification

    NMFS is developing an environmental assessment (EA) for a proposed 
and final rule on TAC alternatives for the 2008-09 fishing year. The EA 
will be made available to the public for comment before the Council's 
meeting in October 2008, with sufficient time for the public comments 
to be considered by the Council, prior to the Council recommending a 
TAC for the 2008-09 fishing year, and in conjunction with the updated 
stock assessment.
    Pursuant to authority set forth at U.S.C. 553(b)(B), the Assistant 
Administrator Fisheries, NOAA, (AA) finds it is contrary to the public 
interest to provide for prior notice and an opportunity for public 
comment. Fishing for Deep 7 bottomfish without an established TAC could 
worsen overfishing in the MHI. A TAC cannot be published that would be 
consistent with Magnuson-Stevens Act National Standards 1 and 2, so the 
emergency rule is necessary to delay the opening of the fishery from 
September 1, 2008, to November 15, 2008. Fishery statistics indicate 
that the amount of bottomfish harvested in Federal waters, alone, 
during September and October could reach 50 percent of the previous 
TAC. Based on preliminary information, the TAC for the 2008-09 fishing 
year may be reduced, and if fishing continues at historical levels 
during September and October on a much-reduced TAC, overfishing is 
likely to result, absent a delay of the opening.
    Similarly, the need to implement these measures in a timely manner 
to delay of the opening of the Deep 7 bottomfish fishery to prevent 
overfishing, reduce confusion among the public, and minimize 
inconsistency between State and Federal regulations, constitutes good 
cause under authority contained in 5 U.S.C. 553(d)(3) to waive the 30-
day delay in effective date. The impact to fishermen of this temporary 
closure is minimal because closing the fishery upon reaching the TAC is 
intended to benefit the fishery by ending overfishing and providing 
sustainable bottomfish resources. Bottomfish fishermen typically fish 
for non-Deep 7 bottomfish (in addition to the Deep 7 bottomfish that is 
temporarily closed) and also participate in troll fishing for pelagic 
species. These other fisheries are not affected by the closure, so 
fishermen are provided alternative fishery opportunities during the 
closure for Deep 7 bottomfish.
    Accordingly, this emergency temporary rule will be effective upon 
filing for publication at the Office of the Federal Register. Public 
comments on the emergency closure will be accepted for 15 days after 
publication of this emergency rule in the Federal Register.
    Pursuant to the authority set contained in 5 U.S.C. 603, this 
emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment. Accordingly, no 
regulatory flexibility analysis is required, and none was prepared.
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.

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: August 22, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 665 is amended as 
follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for part 665 reads as follows:

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

0
2. In Sec.  665.62, suspend paragraphs (l) and (m) and add paragraphs 
(o) and(p) to read as follows:


Sec.  665.62  Prohibitions.

* * * * *
    (o) Fish for or possess any Hawaii Restricted Bottomfish Species as 
specified in Sec.  665.71, in the Main Hawaiian Islands Management 
Subarea after a closure of the fishery, in violation of Sec. Sec.  
665.72, 665.74, or 665.75.
    (p) Sell or offer for sale any Hawaii Restricted Bottomfish 
Species, as specified in Sec.  665.71, after a closure of the fishery, 
in violation of Sec. Sec.  665.72, 665.74, or 665.75.

0
3. Under subpart E, add a new Sec.  665.75 to read as follows:


Sec.  665.75  Closed season.

    (a) All fishing for, or possession of, any Hawaii Restricted 
Bottomfish

[[Page 50574]]

Species as specified in Sec.  665.71, is prohibited in the Main 
Hawaiian Islands Management Subarea during September 1, 2008, through 
November 14, 2008, 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 Restricted Bottomfish Species, as specified in Sec.  
665.71, may not be sold or offered for sale during September 1, 2008, 
through November 14, 2008, inclusive, except as otherwise authorized by 
law.
    (c) Fishing for, and the resultant possession or sale of, Hawaii 
Restricted Bottomfish Species by vessels legally registered to Mau 
Zone, Ho'omalu Zone, or PRIA bottomfish fishing permits and conducted 
in compliance with all other laws and regulations, is exempted from 
paragraphs (a) and (b).

[FR Doc. E8-19870 Filed 8-22-08; 4:15 pm]
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