[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Proposed Rules]
[Pages 75057-75059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29205]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 0811281532-81534-01]
RIN 0648-XL64


Fisheries in the Western Pacific; Bottomfish and Seamount 
Groundfish Fisheries; 2008-09 Main Hawaiian Islands Bottomfish Total 
Allowable Catch

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

ACTION: Proposed specifications; request for comments.

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SUMMARY: NMFS proposes to establish a total allowable catch (TAC) for 
the 2008-09 fishing year of 241,000 lb (109,316 kg) of Deep 7 
bottomfish in the main Hawaiian Islands (MHI). The TAC would be set in 
accordance with regulations established to support long-term 
sustainability of bottomfish in the Hawaiian Archipelago.

DATES: Comments must be received by December 26, 2008.

ADDRESSES: Comments on this proposed specification, identified by 0648-
XL64, 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 (if you wish to remain 
anonymous, enter ``NA'' in the required name and organization fields). 
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 Bottomfish and Seamount 
Groundfish Fisheries of the Western Pacific Region (Bottomfish FMP) and 
related Environmental Impact Statement 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 
www.wpcouncil.org.
    An environmental assessment (EA), including a Regulatory Impact 
Review (RIR), was prepared that describes the impact on the human 
environment that would result from this proposed action. Copies of the 
EA are available from www.regulations.gov, or William L. Robinson (see 
ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Toby Wood, NMFS PIR Sustainable 
Fisheries, 808-944-2234.

SUPPLEMENTARY INFORMATION: This Federal Register document is also 
accessible at the Office of the Federal Register Web site 
www.gpoaccess.gov/fr.
    The bottomfish fishery in Federal waters around Hawaii is managed 
under the Bottomfish FMP, developed by the 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 subpart H of 50 CFR part 600. 
Currently, bottomfish stocks in the Hawaiian Archipelago are not 
experiencing overfishing, and efforts to minimize local stock depletion 
in the MHI Management Subarea are precautionary. The MHI Management 
Subarea refers to the portion of U.S. EEZ around the Hawaiian 
Archipelago lying to the east of 161 20' west longitude. For all the 
bottomfish TACs considered in this specification, the estimated risk of 
overfishing in the Hawaiian Archipelago is zero.
    On April 4, 2008, NMFS published a final rule (73 FR 18457) that 
implemented Bottomfish FMP Amendment 14. The provisions established 
under Amendment 14 include a non-commercial bag limit of five Deep 7 
bottomfish (all species combined) per fisherman per trip. Amendment 14 
also established a requirement for NMFS to set an annual TAC limit for 
Deep 7 bottomfish in the MHI, based on a recommendation from the 
Council, considering 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).
    When the TAC for the year is projected to be reached, NMFS will 
close the non-commercial and commercial fisheries until the end of the 
fishing year (August 31). During a fishery closure for Deep 7 
bottomfish, no person may fish for, possess, or sell any of these fish 
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.
    Last year (2007-08 fishing year), the Council recommended and NMFS 
implemented a Deep 7 bottomfish TAC of 178,000 lb (80,739 kg) (73 FR 
18718; April 7, 2008). Monitoring of the commercial fishery indicated 
that the MHI bottomfish fishery harvested the TAC in April 2008. In 
accordance with the regulations at Sec.  665.72, and as a result of 
reaching the TAC, NMFS published a temporary rule closing the non-
commercial and commercial bottomfish fisheries on April 16, 2008 (73 FR 
18717; April 7, 2008), and a related correction notice (73 FR 20001; 
April 14, 2008).
    At its 142nd meeting in Honolulu in June 2008, the Council learned 
that new data were available for the bottomfish fishery that would be 
integral to the analysis performed 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, as required by regulation Sec.  665.72(a) and Magnuson-Stevens 
Act National Standard 2. Because the updated bottomfish stock 
assessment was not available at the June 2008 meeting, the Council did 
not recommend a 2008-09 TAC. Instead,

[[Page 75058]]

based on a recommendation from the Council, NMFS delayed opening the 
fishery until November 15, 2008 (73 FR 50572; August 27, 2008).
    An updated Hawaiian bottomfish stock assessment was available at 
the Council's 143rd meeting in October 2008. After consideration of the 
assessment, risks of overfishing, recommendations from the Council's 
Scientific and Statistical Committee, and input from the public, the 
Council recommended a TAC for the 2008-09 MHI bottomfish fishing year 
of 241,000 lb (109,316 kg). NMFS will consider the Council's 
recommendation, potential environmental and economic affects of the 
proposed TAC, and comments received during the public comment period 
for this proposed specification, and will announce the final TAC 
specification in the Federal Register.
    Regardless of the final TAC specification, all other management 
measures will continue to apply in the MHI bottomfish fishery. The MHI 
bottomfish fishery re-opened on November 15, 2008, and will continue 
until August 31, 2009, unless the fishery is closed prior to August 31 
as a result of the TAC being reached.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator for Fisheries has determined that this 
proposed specification is consistent with the Bottomfish FMP, other 
provisions of the Magnuson Stevens Act, and other applicable laws, 
subject to further consideration after public comment.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act. The IRFA 
describes the economic impact this proposed specification, 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 to this specification. This specification does not 
duplicate, overlap, or conflict with other Federal rules. There are no 
reporting, recordkeeping, or other compliance requirements in the 
proposed specification. There are no disproportionate economic impacts 
from this specification based on home port, gear type, or relative 
vessel size. The analysis follows:

Description and Estimate of the Number of Small Entities to which the 
Specification Applies

    There are approximately 380 vessels engaged in the commercial 
harvest of MHI bottomfish. Based on 2000-03 data, the aggregate 
gross receipts for these vessels were $1.47 million, with average 
gross receipts per vessel of $3,870 annually. However, 318 of these 
vessels recorded revenues of under $2,175. In general, the relative 
importance of MHI bottomfish to commercial participants as a 
percentage of overall fishing (or household) income is unknown, as 
the total suite of fishing (or other income-generating) activities 
undertaken by individual operations across the year has not been 
examined, to date. The majority of the 380 vessels comprising the 
affected universe were under 30 ft (9.1 m) in length overall. Based 
on all available information, NMFS has determined that all vessels 
in the current fishery are 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. Therefore, there 
are no disproportionate economic impacts between large and small 
entities.

Description of Alternatives for the 2008-09 Fishing Year

    Alternative 1 (No Action). The MHI Deep 7 bottomfish TAC would 
be set at 178,000 lb (80,739 kg). According to the latest stock 
assessment, this TAC represents zero percent risk of bottomfish 
overfishing in either the Hawaiian Archipelago or the MHI Management 
Subarea. With the fishing year opening on November 15, 2008, it is 
projected that the MHI Deep 7 bottomfish TAC under this alternative 
may be reached in May of 2009 given the most recent average catch 
efforts.
    Alternative 2. The MHI Deep 7 bottomfish TAC would be set at 
227,000 lb (102,965 kg). This TAC represents zero percent risk of 
archipelagic overfishing and a 25 percent risk of overfishing in the 
MHI Management Subarea during 2008-09. It is projected that the 
fishing year under this alternative may last until July 2009.
    Alternative 3 (Preferred). The MHI Deep 7 bottomfish TAC would 
be set at 241,000 lb (109,316 kg). This TAC represents zero risk of 
archipelagic overfishing and an approximate 40 percent risk of MHI 
Management Subarea bottomfish overfishing in the 2008-09 fishing 
year. The fishing year under this alternative is projected to remain 
open until late July 2009.
    Alternative 4. The MHI Deep 7 bottomfish TAC would be set at 
249,000 lb (112,945 kg). This TAC represents no risk of archipelagic 
overfishing, while representing an approximate 50 percent risk of 
overfishing of MHI Management Subarea bottomfish in 2008-09. The 
fishing year under this alternative is projected to remain open 
until early August 2009.
    Alternative 5. The MHI Deep 7 bottomfish TAC would be set at 
271,000 lb (122,924 kg). This TAC represents zero risk of 
archipelagic overfishing while representing about a 75 percent 
chance of overfishing MHI Management Subarea bottomfish stocks. The 
fishing year under this alternative is projected to last through 
August 2009, and, therefore, may not close at all under this 
alternative.
    Economic Impacts of the Specification
    Using the same TAC as the 2007-08 bottomfish fishing year, 
Alternative 1 would have the TAC specified as 178,000 lb (80,739 kg) 
of MHI Deep 7 bottomfish, totaling $917,000 in gross revenues (based 
on a 2008 estimated average price of $5.15 per lb or $11.35 per kg) 
for the 2008-09 fishery. This would represent an average of $2,412 
per vessel, assuming all 380 commercially licensed MHI bottomfish 
vessels were equally active. This status quo alternative is 
projected to have a zero percent risk of overfishing associated with 
the Deep 7 bottomfish TAC based on the most recent stock and risk 
assessments.
    Alternatives 2-5 would all have positive short-term economic 
benefits to vessel owners based on an increase in revenues 
associated with greater TACs. At 2008 average prices for bottomfish, 
a proposed Deep 7 MHI bottomfish TAC of 271,000 lb (122,924 kg) for 
Alternative 5 would yield $1.4 million in gross revenues which is 52 
percent more than the estimated revenues projected under Alternative 
1 (i.e., status quo). However, in comparison to the other 
alternatives considered for this action, Alternative 5 represents 
the highest risk (est. 75 percent) of bottomfish overfishing to 
occur in the MHI during 2008-09.
    A more conservative Deep 7 MHI bottomfish TAC would be adopted 
under Alternatives 2, 3, or 4, with the associated risk of 
overfishing MHI Deep 7 bottomfish being 25, 40, and 50 percent, 
respectively, during 2008-09. Alternative 2 would have the Deep 7 
MHI bottomfish TAC specified as 227,000 lb (102,965 kg) during the 
2008-09 fishing year. Total gross revenues for the MHI bottomfish 
fleet under Alternative 2 is estimated to be around $1.17 million, 
or averaged at $3,000 per vessel using an average bottomfish price 
of $5.15 per lb ($11.35 per kg). This represents an economic benefit 
to fishermen with a 28 percent increase in potential revenues 
compared to the status quo. Alternative 2 is associated with a 25 
percent risk of MHI bottomfish overfishing in 2008-09, given the 
most recent stock assessment. Alternative 3, the Preferred 
Alternative, would have the Deep 7 MHI bottomfish TAC specified as 
241,000 lb (109,316 kg) which is associated with an estimated risk 
of overfishing the MHI bottomfish stocks of 40 percent (2008-09). 
The expected total fleet-wide gross revenues associated with 
Alternative 3 would be around $1.24 million, or $3,266 per vessel, 
which would be a 35 percent increase in revenues over the status quo 
and a six percent marginal increase over Alternative 2. Alternative 
4 would have the TAC specified as 249,000 lb (112,945 kg), which is 
associated with a 50 percent risk of overfishing MHI bottomfish in 
2008-09 given the latest stock assessment. Total gross revenues 
under this alternative would be about $1.28 million ($3,375 per 
vessel), which is a 40 percent increase in revenues compared to the 
status quo (Alternative 1), and a 3.3 percent marginal increase in 
revenues compared with the Preferred Alternative 3.
    This analysis assumes that only commercial MHI Deep 7 landings 
are counted toward the 2008-09 TAC. Although

[[Page 75059]]

data reporting requirements for non-commercial fishing have been 
established, it is expected that the non-commercial information will 
not be developed enough to generate meaningful projected estimates 
of 2008-09 non-commercial harvest.

Ceasing of Business Operations

    The decision to cease fishing for bottomfish would depend on the 
ability of vessel owners to cover variable costs of operations in 
the short run. If costs of fuel and food remain at higher than 
normal levels, more vessels than normal would be expected to exit 
the fishery, especially in years when the TAC was low. In addition, 
as is pointed out in Amendment 14, low TACs could propel the fishery 
toward a ``race for the fish,'' putting downward pressure on prices 
and upward pressure on fuel and food costs, resulting in earlier 
than expected closures and larger number of vessels exiting the 
fishery prematurely.

    This action is exempt from the procedures of E.O. 12866 because 
this action contains no implementing regulations.

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

    Dated: December 4, 2008.
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries 
Service.
[FR Doc. E8-29205 Filed 12-9-08; 8:45 am]
BILLING CODE 3510-22-S