[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Rules and Regulations]
[Pages 6998-7001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3049]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 0811281532-9086-02]
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: Final specification.

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SUMMARY: NMFS specifies 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).

DATES: This final specification is effective March 16, 2009.

ADDRESSES: 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 action. Copies of the EA are 
available from www.regulations.gov, or William L. Robinson, Regional 
Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Blvd. 
1110, Honolulu, HI 96814.

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

SUPPLEMENTARY INFORMATION: This final specification is also accessible 
at www.gpoaccess.gov/fr.
    NMFS specifies a TAC for the 2008-09 fishing year of 241,000 lb 
(109,316 kg) of Deep 7 bottomfish in the MHI, as recommended by the 
Western Pacific Fishery Management Council (Council). The Council 
recommended that TAC based on the best available scientific, 
commercial, and other information, taking into account the associated 
risk of overfishing. The MHI Management Subarea refers to the portion 
of U.S. EEZ

[[Page 6999]]

around the Hawaiian Archipelago lying to the east of 161[deg] 20' W. 
long. 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 is projected to be reached, NMFS will close the non-
commercial and commercial Deep 7 bottomfish fisheries until the end of 
the fishing year (August 31, 2009). 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.
    All other management measures continue to apply in the MHI 
bottomfish fishery. The MHI bottomfish fishery reopened 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.
    Additional background information on this final specification may 
be found in the preamble to the proposed specification published on 
December 10, 2008 (73 FR 75057), and is not repeated here.

Comments and Responses

    On December 10, 2008, NMFS published a proposed specification and 
request for public comments on the MHI bottomfish TAC (73 FR 75057). 
The comment period ended on December 26, 2008. NMFS received public 
comment regarding the proposed TAC, and responds as follows:
    Comment 1: The proposed TAC specification's estimated 40 percent 
risk of overfishing is unacceptably high and is inconsistent with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and National Standard 1. Although the Magnuson-Stevens Act 
states that a TAC cannot exceed the recommendation of the Council's 
Scientific and Statistical Committee (SSC), it does not preclude NMFS 
from selecting an ACL that is lower.
    Response: Consistent with National Standard 3 of the Magnuson-
Stevens Act, bottomfish in the Hawaiian Archipelago are managed as a 
unit throughout their range which includes both the MHI and the 
Northwestern Hawaiian Islands (NWHI) portions of the archipelago. For 
the purposes of National Standard 1 and status of stock determinations, 
bottomfish stocks are assessed on an archipelagic-wide basis. 
Currently, bottomfish stocks in the Hawaiian Archipelago are not 
overfished and are not subject to overfishing. Establishment of a Deep 
7 bottomfish TAC is a precautionary measure to prevent localized stock 
depletion in the MHI Management Subarea. The updated stock assessment 
conducted by the NMFS Pacific Islands Fisheries Science Center (PIFSC) 
in 2008 indicates that the selection of a Deep 7 bottomfish TAC of 
241,000 lb (109,316 kg) for the MHI Management Subarea in fishing year 
2008-09 results in a zero percent risk of overfishing in the Hawaiian 
Archipelago. In other words, a TAC of 241,000 lb (109,316 kg) provides 
a 100 percent probability of preventing overfishing while at the same 
time allowing for optimum yield to be produced from the fishery.
    With respect to the MHI Management Subarea alone, the updated stock 
assessment indicates that this TAC would have a 40 percent risk of 
localized stock depletion (i.e., a 60 percent probability of preventing 
localized stock depletion) in fishing year 2008-09, decreasing to a 25 
percent risk of localized stock depletion (i.e., 75 percent probability 
of preventing localized stock depletion) in fishing year 2009-10. The 
TAC was specified at a level that balances the need to protect stocks 
from archipelagic overfishing and localized stock depletion in the MHI, 
with the need for fishermen to be able to achieve optimum yield from 
the fishery. Therefore, the TAC of 241,000 lb (109,316 kg) offers a 
reasonable assurance of preventing overfishing, is consistent with the 
Magnuson-Stevens Act and National Standard 1, and forms the basis of 
ongoing management of the fishery through future TACs.
    Additionally, other conservation and management efforts have been 
implemented by Federal and State of Hawaii authorities for the specific 
purpose of protecting bottomfish stocks of the Hawaiian Archipelago. 
The Papahanaumokuakea Marine National Monument (Monument) closed much 
of the historical bottomfish grounds in the NWHI via a network of no-
take marine protected areas. Monument provisions also require that all 
bottomfish fishing in the NWHI cease on June 15, 2011. Thus, bottomfish 
fishing mortality in the NWHI will be reduced to zero. In addition, the 
State manages 12 Bottomfish Restricted Fishing Areas in the MHI where 
bottomfish fishing is prohibited. Together, these measures complement 
the 2008-09 TAC of 241,000 lb (109,316 kg) for the MHI, and support the 
long term sustainability of bottomfish stocks throughout the Hawaiian 
Archipelago.
    Comment 2: The Magnuson-Stevens Act stipulates that annual catch 
limits and TACs should be set to prevent overfishing, but selecting a 
TAC based on a 40 percent risk of overfishing virtually ensures that it 
will occur frequently in this sector of the fishery. Although the 
predicted risk of archipelagic overfishing in the model presented to 
the Council is negligible, localized depletion is still a matter of 
serious concern from a biological standpoint.
    Response: The TAC specification for the MHI is a precautionary and 
interim management measure implemented to prevent archipelagic 
overfishing and localized stock depletion in the MHI, while allowing 
for optimum yield to be achieved from the fishery on a continual basis. 
This is distinct from the new provisions of the reauthorized Magnuson-
Stevens Act relating to establishment of annual catch limits (ACLs). 
With few exceptions, National Standard 1 guidelines require FMPs to 
establish ACL mechanisms and accountability measures (AMs) for all 
stocks and stock complexes in the fishery. The Council is currently 
developing alternative mechanisms to establish ACLs for all management 
unit species, including bottomfish. NMFS continues to work with the 
Council to develop ACLs and AMs for implementation through future 
rulemaking.
    The specified TAC is projected to have a 100-percent probability of 
success in preventing archipelagic overfishing, and a 60-percent 
probability of success in preventing localized stock depletion in the 
MHI in 2008-09, increasing to a 75-percent probability of success in 
preventing localized stock depletion in 2009-10. Real-time monitoring 
of the bottomfish harvest enables NMFS and the State of Hawaii to 
project when the TAC will be reached and, thus, close the non-
commercial and commercial bottomfish fisheries in Federal and State 
waters, respectively, so that the TAC is not exceeded, further reducing 
the risk of archipelagic overfishing and localized stock depletion in 
the MHI.
    Comment 3: A multispecies stock assessment, such as that used to 
assess the Hawaii bottomfish fishery, can mask problems that exist for 
individual species. Thus, management strategies should be precautionary 
and

[[Page 7000]]

conservative. Also, a 40-percent risk of overfishing for the bottomfish 
complex, as a whole, may represent an even higher level of risk for 
fish species that are currently stressed, and particularly for a 
species with relatively high market values, such as onaga.
    Response: While multispecies stock assessments may potentially mask 
problems that exist for individual species, data that are needed to 
develop species-specific stock assessments are lacking at this time. 
National Standard 3 requires management of stocks throughout their 
range, and for interrelated stocks, management as a unit or in close 
coordination. In addition, while National Standard 1 requires that MSY 
should be estimated on a stock-by-stock basis whenever possible, it 
does provide that in the case of mixed-stock fisheries, MSY can be 
specified on one or more species as an indicator for the fishery as a 
whole. NMFS has adopted this multispecies assessment approach for 
Hawaiian bottomfish stocks, until such time data are sufficient to 
assess individual species. NMFS will continue to work with the Council, 
State of Hawaii, and other management partners to improve fishery 
monitoring programs, and will continually reassess the status of 
bottomfish stocks and may modify management measures, as needed.
    Comment 4: Localized depletion and overfishing of bottomfish stocks 
is also a matter of concern for the fishing community. Informing MHI 
bottomfish fishermen that the lack of fish in the MHI is no longer a 
management concern because there are plenty at distant atolls in the 
NWHI does nothing to change the amount of fish available to them.
    Response: The management measures and distance from population 
centers provides protection for bottomfish in the NWHI, and the recent 
archipelagic stock assessment indicates that bottomfish stocks are not 
overfished or subject to overfishing. Nonetheless, the Council and NMFS 
are concerned about the status of Deep 7 bottomfish stocks in the MHI. 
The specified TAC and related management measures, including non-
commercial fishing permits, data collection program, and bag limits, 
considered with the State of Hawaii's commercial data collection 
program and Bottomfish Restricted Fishing Areas, are intended to better 
monitor and protect bottomfish in the MHI, while providing adequate 
opportunity for fishermen to achieve optimum yield.
    Comment 5: The American Fisheries Society (AFS) has recommended 
that fishing mortality for the snapper-grouper complex be maintained 
``at or near natural mortality.'' Given the life-history 
characteristics of bottomfish, and uncertainty about their fishing and 
natural mortality, additional caution should be exercised with respect 
to all policy decisions, including selection of an acceptable level of 
risk of overfishing.
    Response: The PIFSC 2008 bottomfish stock assessment incorporated 
the best available biological information, and updated bottomfish catch 
and effort data through 2007. The assessment applied a statistical log-
linear model to develop a spatially standardized CPUE series for the 
MHI and estimate bottomfish biomass, catch, and relative biomass for 
2008-10. The Council and NMFS considered and discussed the available 
information, and the specification of a TAC of 241,000 lb (109,316 kg) 
for the MHI was determined to be consistent with the Magnuson-Stevens 
Act and National Standards.
    Comment 6: NMFS has offered no specific guidance on acceptable 
levels of risk, although the Magnuson-Stevens Act does specify that it 
be ``low.'' Discussions at a stock assessment symposium at the 2007 
meeting of the AFS suggested that an overall risk of overfishing of 10 
percent would be prudent (considering scientific and management 
uncertainty), and values up to 20 percent could be an acceptable upper 
limit of risk.
    Response: The TAC of 241,000 lb (109,316 kg) provides a 100 percent 
probability of success in preventing archipelagic overfishing and, in 
the MHI, a 60 percent probability of success in preventing local stock 
depletion in fishing year 2008-09, increasing to a 75 percent 
probability of success in preventing local stock depletion in the MHI 
in fishing year in 2009-10. The Council and NMFS are required to 
establish ACLs and AMs for all fisheries by 2011.
    Comment 7: The Magnuson-Stevens Act states that proposed TACs 
should incorporate both scientific and management uncertainty to reduce 
the risk of overfishing. However, the current risk assessment 
incorporates only scientific uncertainty, and does not consider 
management uncertainty (e.g., underreported or incorrectly reported 
fishing activity). As such, the analysis underestimates the overall 
risk of overfishing. Additionally, multiple models recently presented 
at the Council's Scientific and Statistical Committee (SSC) provided 
divergent conclusions about the state of the present fishery and its 
likely trajectory under various potential management frameworks. 
Considering these factors, it is prudent to apply a cautious and 
conservative management approach until these discrepancies can be 
resolved.
    Response: In addition to the scientific uncertainty considered in 
the updated stock assessment, when recommending the 2008-09 TAC the 
Council also considered the lag in fisheries data collection, and 
considered the possibility that the actual catch would exceed the 
specified TAC limit. This resulted in the Council recommending a TAC 
that is less than the 254,000 lb (115,212 kg) TAC that was initially 
recommended by the Council's SSC. NMFS will continue to monitor the 
fisheries and update stock assessments, and may modify management 
measures, if warranted.
    Comment 8: At the 143rd Council meeting, the State of Hawaii 
representative proposed a 2008-09 TAC of 178,000 lb (80,739 kg). This 
TAC was suggested considering a prudent and low level of risk based on 
the multispecies nature of the stock assessment, localized depletion of 
bottomfish stocks and component species in the MHI, life history 
characteristics of component species, and scientific and management 
uncertainty. Of the proposed alternatives published in the proposed 
rule, we note that this is the only TAC that fits within the prudent 
levels of risk suggested by stock assessment scientists at the AFS 
meeting.
    Response: See responses to comments above. The Council and NMFS 
specified a TAC of 178,000 lb (80,739 kg) for the 2007-08 fishing year. 
Considering that the Deep 7 bottomfish fisheries were closed for nearly 
seven months (from April 16, 2008, to November 15, 2008), and to 
balance the need to prevent archipelagic overfishing and localized 
stock depletion with the need to achieve optimum yield, the specified 
TAC for 2008-09 is higher. The Council and NMFS will consider all 
information when assessing bottomfish stocks and specifying future 
TACs, including AFS recommendations.

Classification

    The Regional Administrator, NMFS PIR, determined that this final 
specification is necessary for the conservation and management of the 
MHI bottomfish fishery and that it is consistent with the Magnuson-
Stevens Act and other applicable laws.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by the public comments in 
response to the IRFA and NMFS responses to those comments, and a 
summary of the

[[Page 7001]]

analyses completed to support the action. The analysis follows:
    NMFS prepared this FRFA for the 2008-09 MHI bottomfish TAC 
pursuant to section 604 of the Regulatory Flexibility Act. This FRFA 
incorporates the IRFA, which appeared in its entirety in the 
Classification section of the proposed rule (73 FR 75057; December 
10, 2008) and is not repeated in its entirety here.
    The need for, and objectives of, the action are provided in the 
preambles to the proposed and final specifications. This action does 
not duplicate, overlap, or conflict with any other Federal rules. 
There are no reporting, recordkeeping, or other compliance 
requirements in the final specification. This action is taken under 
authority of the Magnuson-Stevens Act and implementing regulations 
at 50 CFR Sec.  665.72. No comments were received on the IRFA.
    The Small Business Administration defines a commercial fishing 
business as a small entity if annual gross receipts are less than 
$4.0 million. All bottomfish vessels impacted by this specification 
are considered to be small entities under this definition. There are 
approximately 380 vessels engaged in the commercial harvest of MHI 
bottomfish. The majority of the 380 vessels comprising the affected 
universe are under 30 ft (9.1 m) in length overall. There are no 
disproportionate economic impacts from this specification based on 
home port, gear type, or relative vessel size.

Minimizing Economic Impacts on Small Entities

    This rule would not have an adverse economic impact to small 
entities because the 2008-09 TAC of 241,000 lb (109,316 kg), if 
taken, would produce $3,266 in average per-vessel revenue, as 
compared to $2,412 in average per-vessel revenue realized for the 
2007-08 fishery.
    NMFS considered two alternative TACs that were larger than the 
one specified, including 249,000 lb (112,944 kg) yielding a 
potential $3,375 in average per-vessel revenue, and 271,000 lb 
(122,923 kg)yielding a potential $3,673 in average per-vessel 
revenue. Although both of these alternatives could generate larger 
average revenues than the selected alternative, their specification 
could also result in localized depletion of MHI bottomfish, which is 
inconsistent with National Standard 1 of the Magnuson-Stevens Act.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement 
Fairness Act of 1996 states that for each rule or group of related 
rules for which an agency is required to prepare a FRFA, the agency 
shall publish one or more guides to assist small entities in 
complying with the rule, and shall designate such publications as 
``small entity compliance guides.'' As part of this rulemaking 
process, a small entity compliance guide was prepared. Copies of the 
small entity compliance guide are available from the Regional 
Administrator (see ADDRESSES) and are also available at 
www.fpir.noaa.gov/SFD/SFD_regs_2.html.
    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: February 9, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-3049 Filed 2-11-09; 8:45 am]
BILLING CODE 3510-22-S