Fisheries in the Western Pacific; Bottomfish and Seamount Groundfish Fisheries; Management Measures in the Main Hawaiian Islands, 18450-18460 [08-1093]
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18450
Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Rules and Regulations
the EEZ may only fish with nets having
a minimum codend mesh of 3 inches
(76 mm) diamond mesh, inside stretch
measure, applied throughout the codend
for at least 100 continuous meshes
forward of the terminus of the net, or for
codends with less than 100 meshes, the
minimum mesh size codend shall be a
minimum of one-third of the net,
measured from the terminus of the
codend to the headrope.
(3) Owners or operators of otter trawl
vessels possessing Loligo harvested in or
from the EEZ may only fish with nets
having a minimum mesh size of 17⁄8
inches (48 mm) diamond mesh, inside
stretch measure, applied throughout the
codend for at least 150 continuous
meshes forward of the terminus of the
net, or for codends with less than 150
meshes, the minimum mesh size codend
shall be a minimum of one-third of the
net measured from the terminus of the
codend to the headrope, unless they are
fishing consistent with exceptions
specified in paragraph (b) of this
section.
(i) Net obstruction or constriction.
Owners or operators of otter trawl
vessels fishing for and/or possessing
Loligo shall not use any device, gear, or
material, including, but not limited to,
nets, net strengtheners, ropes, lines, or
chafing gear, on the top of the regulated
portion of a trawl net that results in an
effective mesh opening of less than 17⁄8
inches (48 mm) diamond mesh, inside
stretch measure. ‘‘Top of the regulated
portion of the net’’ means the 50 percent
of the entire regulated portion of the net
that would not be in contact with the
ocean bottom if, during a tow, the
regulated portion of the net were laid
flat on the ocean floor. However, owners
or operators of otter trawl vessels fishing
for and/or possessing Loligo may use net
strengtheners (covers), splitting straps,
and/or bull ropes or wire around the
entire circumference of the codend,
provided they do not have a mesh
opening of less than 41⁄2 inches (11.43
cm) diamond mesh, inside stretch
measure. For the purpose of this
requirement, head ropes are not to be
considered part of the top of the
regulated portion of a trawl net.
(ii) Illex fishery. Owners or operators
of otter trawl vessels possessing Loligo
harvested in or from the EEZ and fishing
during the months of June, July, August,
and September for Illex seaward of the
following coordinates (copies of a map
depicting this area are available from
the Regional Administrator upon
request) are exempt from the Loligo gear
requirements specified at paragraph
(a)(3) of this section, provided they do
not have available for immediate use, as
defined in paragraph (b) of this section,
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any net, or any piece of net, with a mesh
size less than 17⁄8 inches (48 mm)
diamond mesh or any net, or any piece
of net, with mesh that is rigged in a
manner that is prohibited by paragraph
(a)(3) of this section, when the vessel is
landward of the specified coordinates.
Point
N. Lat.
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43°58.0′
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W. Long.
67°22.0′
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*
*
*
*
*
5. Section 648.25 is added to read as
follows:
I
§ 648.25
Possession restrictions.
(a) Atlantic mackerel. During a
closure of the directed Atlantic
mackerel fishery, vessels may not fish
for, possess, or land more than 20,000
lb (9.08 mt) of mackerel per trip at any
time, and may only land mackerel once
on any calendar day, which is defined
as the 24-hr period beginning at 0001
hours and ending at 2400 hours.
(b) Loligo. During a closure of the
directed fishery for Loligo, vessels may
not fish for, possess, or land more than
2,500 lb (1.13 mt) of Loligo per trip at
any time, and may only land Loligo once
on any calendar day, which is defined
as the 24-hr period beginning at 0001
hours and ending at 2400 hours. If a
vessel has been issued a Loligo
incidental catch permit (as specified at
§ 648.4(a)(5)(ii)), then it may not fish for,
possess, or land more than 2,500 lb
(1.13 mt) of Loligo per trip at any time
and may only land Loligo once on any
calendar day.
(c) Illex. During a closure of the
directed fishery for Illex, vessels may
not fish for, possess, or land more than
10,000 lb (4.54 mt) of Illex per trip at
any time, and may only land Illex once
on any calendar day, which is defined
as the 24-hr period beginning at 0001
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hours and ending at 2400 hours. If a
vessel has been issued an Illex
incidental catch permit (as specified at
§ 648.4(a)(5)(ii)), then it may not fish for,
possess, or land more than 10,000 lb
(4.54 mt) of Illex per trip at any time,
and may only land Illex once on any
calendar day.
(d) Butterfish. (1) During a closure of
the directed fishery for butterfish that
occurs prior to October 1, vessels may
not fish for, possess, or land more than
250 lb (0.11 mt) of butterfish per trip at
any time, and may only land butterfish
once on any calendar day, which is
defined as the 24-hr period beginning at
0001 hours and ending at 2400 hours.
During a closure of the directed fishery
for butterfish that occurs on or after
October 1, vessels may not fish for,
possess, or land more than 600 lb (0.27
mt) of butterfish per trip at any time,
and may only land butterfish once on
any calendar day. If a vessel has been
issued a butterfish incidental catch
permit (as specified at § 648.4(a)(5)(ii)),
then it may not fish for, possess, or land
more than 600 lb (0.27 mt) of butterfish
per trip at any time, and may only land
butterfish once on any calendar day,
unless the directed fishery for butterfish
closes prior to October 1, then a vessel
that has been issued a butterfish
incidental catch permit may not fish for,
possess, or land more than 250 lb (0.11
mt) of butterfish per trip at any time,
and may only land butterfish once on
any calendar day.
(2) A vessel issued a butterfish
moratorium permit (as specified at
§ 648.4(a)(5)(i)) may not fish for,
possess, or land more than 5,000 lb
(2.27 mt) of butterfish per trip at any
time, and may only land butterfish once
on any calendar day, which is defined
as the 24-hr period beginning at 0001
hours and ending at 2400 hours.
[FR Doc. E8–7062 Filed 4–3–08; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 665
[Docket No. 071211828–8448–02]
RIN 0648–AU22
Fisheries in the Western Pacific;
Bottomfish and Seamount Groundfish
Fisheries; Management Measures in
the Main Hawaiian Islands
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
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Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Rules and Regulations
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: This final rule implements
management measures for the vesselbased bottomfish fishery in the Main
Hawaiian Islands, including
requirements for non-commercial
(recreational and subsistence) permits
and data reporting, a closed season,
annual total allowable catch limits, and
non-commercial bag limits. This action
is intended to end the overfishing of
bottomfish in the Hawaiian
Archipelago.
This final rule is effective April
1, 2008, with the following exceptions:
1. The following amendments are
effective until September 1, 2008:
a. In § 665.12, the definition of Hawaii
restricted bottomfish species fishing
year 2007–08;
b. Paragraph (g) in § 665.72 (the TAC
for the 2007–08 fishing year); and
c. § 665.74 (the closed season).
2. The amendments to §§ 665.13,
665.14, and 665.61, which require
approval by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act (PRA). When OMB
approval is received, the effective date
will be announced in the Federal
Register.
DATES:
This final rule implements
Amendment 14 to the Fishery
Management Plan for the Bottomfish
and Seamount Groundfish Fisheries of
the Western Pacific Region (including a
final environmental impact statement,
regulatory impact review, and initial
regulatory flexibility analysis). Copies of
Amendment 14 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. A
Record of Decision (ROD) identifying
the selected alternative was prepared for
this final rule and is available from
William L. Robinson, Regional
Administrator, NMFS, Pacific Islands
Region (PIR), 1601 Kapiolani Blvd, Suite
1110, Honolulu, HI 96814–4700.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this final rule
may be submitted to William L.
Robinson (see ADDRESSES), or to David
Rostker, OMB, by e-mail to
DavidlRostker@omb.eop.gov, or by fax
to 202–395–7285.
FOR FURTHER INFORMATION CONTACT:
Karla Gore, NMFS PIR, 808–944–2273.
SUPPLEMENTARY INFORMATION: This final
rule is accessible at the Office of the
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ADDRESSES:
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Federal Register’s web site:
www.gpoaccess.gov/fr/.
Bottomfish fishing in Hawaii is
managed under the Fishery
Management Plan for the Bottomfish
and Seamount Groundfish Fisheries of
the Western Pacific Region (Bottomfish
FMP), which was developed by the
Council and implemented by NMFS
under the authority of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act). Hawaii bottomfish are managed as
a single archipelago-wide multi-species
stock complex (bottomfish complex).
The bottomfish complex is comprised of
certain deep-slope snappers, groupers,
and jacks. Fisheries and management
programs for Hawaiian bottomfish
operate in two large geographic areas—
the Northwestern Hawaiian Islands
(NWHI) and the main Hawaiian Islands
(MHI).
There is currently no mandatory
permitting or data reporting requirement
for non-commercial fishing. Some data
on the non-commercial bottomfish
fishery are collected through surveys.
NMFS estimates that, based on the State
boat registration program and
independent surveys, 800–5,000
fishermen participate in the noncommercial bottomfish fishery.
NMFS, on behalf of the Secretary of
Commerce, determined that overfishing
is occurring on the bottomfish complex
in the Hawaiian Archipelago, with the
primary problem being excessive fishing
mortality on seven deep water species
(the ‘‘Deep 7’’ species) in the MHI. The
Deep 7 species 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).
On May 27, 2005, NMFS notified the
Council of the overfishing and requested
the Council to take appropriate action to
end the overfishing (70 FR 34452, June
14, 2005). In response, the Council
developed Amendment 14 and
management measures, which this final
rule implements. This final rule will
reduce the fishing mortality for the Deep
7 species in the MHI by approximately
24 percent in 2008, will establish a
mechanism (annual TAC) to respond to
future changes in stock status, and will
improve data collection from noncommercial bottomfish fisheries in
Federal waters around the MHI.
The final rule implements several
management measures for vessel-based
bottomfish fishing in the MHI. First, a
Federal bottomfish permit is required
for vessel owners and fishermen to
conduct vessel-based non-commercial
fishing for any bottomfish management
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18451
unit species (BMUS), not just Deep 7
species, in Federal waters around the
MHI (except customers of charter
fishing trips).
Second, the final rule requires
operators of non-commercial fishing
vessels to submit daily Federal logbooks
that document bottomfish fishing effort
and catch for each fishing trip, and
vessel owners share the responsibility
for submitting the logbooks in a timely
manner. The data from these logbooks
will be the basis for calculating noncommercial fishing effort and harvest of
BMUS, bycatch, and interactions with
protected species.
Third, the final rule implements a
closed season from May through August
2008. During this closure, fishing for
Deep 7 species will be prohibited in
Federal waters. Fishing for bottomfish
species other than Deep 7 species will
not be prohibited during the closed
season.
Fourth, the final rule establishes an
annual total allowable catch (TAC) for
the MHI bottomfish fishery. The TAC
will be determined each fishing year
using the best available scientific
information, commercial and noncommercial fishing data, and other
information, and will consider the
associated risk of overfishing. NMFS
will publish in the Federal Register by
August 31 the TAC for the upcoming
fishing year, and will use other means
to notify permit holders of the TAC.
When the TAC is projected to be
reached, NMFS will publish notification
in the Federal Register and use other
means to notify permit holders that the
fishery will be closed on a specified
date, providing fishermen with two
weeks advance notice of the closure.
The TAC for the 2007–08 fishing year
(October 2007 through April 2008) is set
at 178,000 lb (80,740 kg) of Deep 7
species. Progress toward the 2007–08
TAC is determined by the catch
reported by holders of Hawaii
commercial marine license (CML).
When the 2007–08 TAC is projected to
be reached, the commercial and noncommercial fisheries for Deep 7
bottomfish will be closed. There is no
prohibition on fishing for other
bottomfish species throughout the year.
NMFS intends to repeal the Federal
non-commercial bag limits once the data
collected from the non-commercial
bottomfish fishery are determined to be
adequate to include in the annual TAC
calculation.
The final rule implements Federal
bottomfish bag limits for noncommercial fishing. Non-commercial
fishermen are allowed to catch, possess,
and land as many as five Deep 7 fish
combined, per person, per fishing trip in
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Federal waters. The State of Hawaii also
has a similar bag limit for noncommercial fishing.
Additional background information
on this final rule may be found in the
preamble to the proposed rule
published on February 1, 2008 (73 FR
6101), and is not repeated here.
Comments and Responses
On December 22, 2007, NMFS
announced in the Federal Register the
availability of Amendment 14 (72 FR
73308), and on February 1, 2008, NMFS
published a notice of the proposed rule
(73 FR 6101). The public comment
period for the amendment ended on
February 25, 2008, and the proposed
rule comment period ended on March 7,
2008. NMFS received comments from
17 entities, including the State of
Hawaii, Department of Land and
Natural Resources, and non-commercial
and commercial bottomfish fishermen,
and responds as follows:
Comment 1: NMFS should post online
the available portion of the TAC to
allow fishermen access to information
in a timely manner.
Response: NMFS will post the catch
trends on the PIRO website at
www.fpir.noaa.gov to allow tracking of
harvests to be counted toward the TAC.
Comment 2: A real cause for the
decline in Hawaii bottomfish is that
kahala (amberjacks) and other non-Deep
7 bottomfish species may be outcompeting the Deep 7 bottomfish
species.
Response: NMFS does not have data
to determine whether or not the
comment is correct. The final rule will
allow for better collection of
information from non-commercial
bottomfish fishermen which will give
fishery managers a better understanding
of the catch composition and relative
abundance of all BMUS. With improved
data, fishery managers can make
effective bottomfish management
decisions to address these concerns,
such as interspecific competition, in the
future.
Comment 3: Any new data collection
requirement for commercial fishermen
will lead to duplication of effort and
unnecessary expense.
Response: The final rule implements
new permitting and reporting
requirements only for non-commercial
bottomfish fishermen. There are no new
reporting requirements for any
commercial fishermen, who must
continue to report their catch to the
State of Hawaii. The final rule clarifies
the reporting requirements for ‘‘mixed’’
fishing trips where some fishermen hold
non-commercial bottomfish permits and
some hold State Commercial Marine
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Licenses (State CMLs), and for
bottomfish charter fishing customers, to
minimize redundant reporting.
Comment 4: The State’s closed areas
(bottomfish restricted fishing areas, or
BRFAs) should be removed because
they reduce suitable fishing grounds
and are too restrictive when combined
with the new Federal regulations.
Response:The BRFAs are under the
management purview of the State of
Hawaii, and any changes to this
management program must be done by
the State, not NMFS. The Federal
measures implemented by this final rule
and the State’s BRFAs are both intended
to conserve Hawaiian bottomfish.
Comment 5: Bag limits should not
apply to commercial fishermen, only to
non-commercial fishermen.
Response: This final rule establishes
bag limits only for non-commercial
bottomfish fishermen. State-licensed
commercial fishermen are not currently
subject to bag limits.
Comment 6: More enforcement of
current State bottomfish regulations is
needed.
Response: NMFS agrees that more
enforcement is generally needed for
effective fishery management, whether
it is for State or Federal regulations.
NOAA’s Office for Law Enforcement
(NOAA OLE), the U.S. Coast Guard
(USCG), and the State of Hawaii’s
Division of Conservation and Resources
Enforcement will work together to
enforce the new regulations.
Comment 7: All buyers and sellers of
bottomfish should be required to submit
reports to eliminate the selling of
bottomfish by non-commercial
fishermen.
Response: This final rule requires
bottomfish fishermen to be permitted as
either commercial or non-commercial,
and requires both categories of permits
to report their catch. Under current
State law, all fish buyers are required to
submit State dealer reports for any fish
that they purchase. Dealers must
purchase fish only from State-licensed
commercial fishermen. The dealer
report provides a way to cross-reference
fish sales by fishermen.
Comment 8: The closed season should
be the only management measure
implemented as it would achieve the
desired reduction in catch levels, but be
less burdensome to fishermen because it
would not require non-commercial
permits or reporting.
Response: The 2008 closed season is
intended to reduce fishing mortality to
the target level to end overfishing in the
first year. A TAC is more effective and
less-burdensome than seasonal closures
for preventing overfishing in the long
term. To establish a TAC each year,
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information about commercial and noncommercial fishing is essential. This
management strategy requires that both
commercial and non-commercial
fishermen hold fishing permits and
submit reports on their catch and effort
to the State and/or NMFS, as
appropriate.
Comment 9: The regulations should
not include jacks with the other BMUS.
Response: Jacks, such as ulua, are
BMUS, but they are not Deep 7 species,
and fishing for jacks is not restricted by
this final rule. Only vessel-based fishing
for Deep 7 species is subject to the 2008
closed season and the TAC. Information
on the catches of jacks and other BMUS
by non-commercial vessel-based
fishermen will be collected under the
new reporting requirements for
comprehensive monitoring of the
fishery overall.
Comment 10: Many commercial
fishermen have relinquished their State
CML because of stringent USCG
regulations that apply to commercial
fishing vessels. The proposed
regulations that require all fishing
vessels to have permits would be too
burdensome on fishermen.
Response: This final rule creates
permit requirements only for noncommercial bottomfish fishermen. As
such, the USCG requirements governing
commercial fishing vessels are not
within the purview of this final rule.
Comment 11: Enforcement of bag
limits is difficult and should not be
applied to commercial fishermen
because it would impact their
livelihood.
Response: This final rule establishes
bag limits only for non-commercial
bottomfish fishermen. State-licensed
commercial fishermen are not currently
subject to bag limits. NOAA OLE, the
USCG, and the State of Hawaii Division
of Conservation and Resources
Enforcement will work together to
enforce the new requirements, including
non-commercial bag limits.
Comment 12: The commercial fishery
should be limited to operating twice a
week and the non-commercial fishery
should operate the remainder of the
week with the non-commercial bag limit
in place.
Response: Daily restrictions and
rotating closures were not considered by
the Council and NMFS for this final
rule. The effectiveness of the rule in
ending bottomfish overfishing will be
periodically reevaluated, and may be
adjusted in the future, if necessary.
Alternative management measures, such
as daily restrictions and rotating
closures, could be considered for future
implementation.
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Comment 13: The TAC should be
used to manage the commercial fleet,
and the non-commercial fishery should
be managed only through bag limits.
Response: NMFS has determined that
a TAC for both the commercial and noncommercial fleet is the most effective
way to ensure that bottomfish stocks do
not continue to experience overfishing.
Non-commercial bag limits will also
help to relieve fishing pressure on the
stocks. The effect of these measures will
be monitored and adjustments made in
the future, if necessary.
Comment 14: Non-commercial and
commercial vessels should use different
colors for vessel marking to make
enforcement easier.
Response: The final rule establishes
requirements for non-commercial
bottomfish fishing, while current State
regulations continue to apply to
commercial fishing. Because the State
already has requirements for the
identification of bottomfish vessels, this
final rule will exempt non-commercial
vessels that are compliant with State’s
vessel marking requirements from the
Federal requirements. Special colorcoding of vessel markings to facilitate
the identification of bottomfish vessels
is a good idea, and NMFS will raise the
idea with enforcement officials for
consideration in future rulemakings.
Comment 15: The reporting
requirement should be voluntary due to
the financial burden that mandatory
reporting would impose.
Response: Permits and reporting are
essential to ensure that accurate and
complete information about noncommercial bottomfish fishing is
collected for the purposes of setting an
appropriate TAC on an annual basis.
NMFS estimates that the time burden
for completing non-commercial permit
applications to be 30 minutes per year,
and 20 minutes for reporting catch and
effort information in the logbooks after
each fishing trip. The logbooks are free
to fishermen, and the reporting cost is
limited to mailing the reports to NMFS.
The permit will cost less than $80
(probably in the range $25–40), and
NMFS determined the costs associated
with permitting and reporting are
nominal.
Comment 16: The closed season
should be five months rather than four
months.
Response: The Council and NMFS
chose a four-month closed season
because the best available scientific
information indicates that it will
provide a balance between reducing
fishing effort to levels sufficient to end
the overfishing, and providing
continued opportunities for bottomfish
fishing.
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Comment 17: A fleet-wide TAC and
seasonal closure are the only
management measures that should
implemented.
Response: The closed season will
address overfishing only in 2008. In the
long term, a TAC will be the primary
measure to end and prevent overfishing
of bottomfish. To implement an
effective TAC program, information on
the numbers of bottomfish fishermen
and their effort and catch is needed.
Thus, non-commercial permits and data
reporting are essential for the overall
management program. Currently,
information is collected only for one
sector, commercial bottomfish fishing.
Therefore, collecting information about
non-commercial fishing is necessary,
and best accomplished through noncommercial permits and data reporting.
The non-commercial information will
give us a better understanding of the
interplay between the bottomfish fishery
and other fishing activities. This
information will be combined with the
commercial data to set an annual TAC
to end and prevent overfishing of
Hawaiian bottomfish.
Comment 18: A TAC will create a
‘‘race to the fish,’’ will cause highgrading, and may put smaller vessels at
risk as they attempt to catch their share
of the TAC fish, possibly in unsafe sea
conditions, before the fishery closes.
Response: There may be a ‘‘race to the
fish’’ early in the open season as
fishermen try to ensure that they catch
their share of the TAC. However, this
final rule adjusts the fishing year to start
late in the calendar year so the fishery
would likely remain open during the
winter holiday season, a time of
increased demand for bottomfish. This
may reduce some of the incentive to fish
during especially unsafe sea conditions.
High-grading should not be an issue, as
all Deep 7 bottomfish caught, whether
kept or discarded, will be counted
toward the TAC.
Comment 19: The vessel marking
requirements for non-commercial
fishermen are impractical and onerous.
Vessels are already required to be
registered and marked according to the
State of Hawaii regulations.
Response: NMFS agrees, and in the
final rule has amended the regulations
to exempt from the Federal
requirements those vessels that are in
compliance with State bottomfish vessel
marking requirements.
Comment 20: NMFS is asking for
comment, but the decisions have
already been made regarding the
proposed rule.
Response: NMFS reads and considers
every comment received, and uses these
comments to consider whether to
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18453
implement or change the proposed
regulations, consistent with
Amendment 14. Comments received on
its proposed rule led NMFS to
reconsider several aspect of the rule,
and resulted in changes from the
proposed rule for several regulations,
such as vessel marking requirements.
Comment 21: Fishing is not the only
cause of the reduced fish population.
Pollution, development, and global
warming should be considered as they
are larger threats against the ecosystem.
Response: The final supplementary
EIS (FSEIS) considered and analyzed
both fishing and non-fishing impacts on
bottomfish resources. In addition, the
Council is developing fishery ecosystem
management plans that would address
such non-fishing impacts on the Hawaii
ecosystem. Nonetheless, fishing has
been identified as a major cause of
bottomfish overfishing and, as such, the
final rule will control bottomfish fishing
mortality so that bottomfish stocks are
sustained for future generations.
Comment 22: A bag limit of five Deep
7 species is too low.
Response: This final rule implements
Federal non-commercial bag limits that
complement existing State bag limits.
The non-commercial bag limit of five
Deep 7 bottomfish is consistent with
existing State regulations for noncommercial bottomfish fishing. NMFS
intends to repeal the Federal noncommercial bag limits once the data
collected from the non-commercial
bottomfish fishery are determined to be
adequate to include in the annual TAC
calculation.
Comment 23: There should be BRFAs
or a seasonal closure, not both.
Response: The 2008 closed season is
being implemented to immediately end
bottomfish overfishing, and the other
Federal provisions implemented by this
final rule, and the BRFAs, are intended
to conserve Hawaiian bottomfish over
the long term.
Comment 24: Non-commercial bag
limits should be eliminated because
non-commercial fishermen are already
limited by the size of their vessels,
storage capacity, and weather.
Response: This final rule implements
Federal non-commercial bag limits that
complement existing State bag limits.
NMFS intends to repeal the Federal
non-commercial bag limits once the data
collected from the non-commercial
bottomfish fishery are determined to be
adequate to include in the annual TAC
calculation.
Comment 25: The non-commercial
permit and reporting requirement
should be on a one-year trial basis. If at
the end of one year, non-commercial
fishermen are significantly contributing
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to the bottomfish catch the permit and
reporting would continue. If not, it
could be eliminated.
Response: NMFS and the Council will
monitor the fishery and evaluate the
effectiveness of these measures in
ending and preventing overfishing of
Hawaiian bottomfish. The Council and
NMFS may consider adjustments to the
fishery management regime in the
future, if necessary.
Comment 26: Reporting requirements
for non-commercial fishermen should
be kept simple to reduce the burden to
fishermen.
Response: The reporting forms have
been designed to record only the basic
information required to effectively
monitor the fishery. The forms will
come with instructions and contact
information for further questions about
the forms. Comments on the form and
the reporting burden can be sent to
William L. Robinson (see ADDRESSES)
and by email to
David_Rostker@omb.eop.gov or by fax to
202–395–7285.
Comment 27: Clarify how the permit
requirement and associated fee differ
from the recreational fishermen registry
created under the reauthorized
Magnuson-Stevens Act and which is not
able to charge a fee until 2011.
Response: This final rule implements
non-commercial bottomfish permits and
data collection under section 303 of the
Magnuson-Stevens Act, specifically to
collect fishery information to be used by
managers to end overfishing of
bottomfish in Hawaii. That section of
the Act authorizes the collection of fees
for the issuance of such permits. The
recreational fishermen registry is
authorized under Section 401 of the
Magnuson-Stevens Act as a national
registration program for recreational
fishing in all regions (not specifically
the Hawaiian bottomfish fishery) and
the Magnuson-Stevens Act authorizes
the collection of fees for that program
beginning in 2011.
Comment 28: The non-commercial fee
is higher than the commercial fee which
might make fishermen more inclined to
get the commercial permit.
Response: Holding either a Federal
non-commercial permit or State CML
satisfies the requirements of this final
rule. The fee for the non-commercial
permit has not yet been determined, as
it is dependent on the number of
permits issued. The preamble to the
proposed rule noted that the fee would
not exceed $80 per person, and it will
probably be in the range of $25–40.
Comment 29: Federal reporting
requirements will require fishermen to
report all BMUS while the State of
Hawaii requires reporting of Deep 7
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species only. These inconsistent
requirements make reporting confusing
to fishermen who fish in both State and
Federal waters.
Response: The State requires
commercial fishermen (State CML
holders) to report all species caught, and
NMFS believes that the collection of
information regarding all BMUS is
essential to understand the combined
impact of commercial and noncommercial fishing on Hawaiian
bottomfish stocks.
Comment 30: If fishermen report
interactions with protected species, as
indicated on the reporting requirements,
they may be held liable under the
Endangered Species Act (ESA).
Response: NMFS completed a
biological opinion under section 7 of the
ESA that analyzed the impacts of
implementing this final rule on
endangered and threatened species.
That opinion, dated March 18, 2008,
concluded that this action is not likely
to adversely affect the Hawaiian monk
seal, and is likely to adversely affect the
endangered/threatened green sea turtle.
The incidental take of up to two green
sea turtles per year is authorized for the
Hawaii bottomfish fishery. The Federal
logbooks will provide fishermen the
opportunity to report protected species
interactions, including sea turtles and
marine mammals. NOAA OLE will
investigate reported interactions on a
case-by-case basis to ascertain the
nature of the interaction and whether or
not it was authorized.
Comment 31: The preamble of the
proposed rule noted that the noncommercial bag limit would be
eliminated in 2008, but that is not
reflected in the regulatory text.
Response: The preamble to the
proposed rule inadvertently indicated
that the bag limits would be repealed in
2008, but should have read that NMFS
will repeal the Federal non-commercial
bag limits once the data collected from
the non-commercial bottomfish fishery
are determined to be adequate to
include in the annual TAC calculation.
The final rule clarifies this point.
Comment 32: It is unrealistic to
believe that fish suffering from
barotrauma can be resuscitated.
Response: Reduction of bottomfish
barotrauma is possible with correct
handling procedures, and NMFS plans
to work with the State and Council to
provide information to fishermen on
effective ways to handle fish to reduce
barotrauma.
Comment 33: Fishermen will not
honestly report their non-target fish and
bycatch for fear of reaching the TAC
sooner.
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Response: The TAC will be calculated
only for the reported catch of Deep 7
bottomfish species, and once the TAC is
reached, only the fishery for Deep 7 will
be closed; fishing for other species may
continue. Information on other
bottomfish and pelagic species caught
will provide NMFS and the Council
with a comprehensive picture of the
non-commercial bottomfish fishery, its
interplay with related fisheries, and the
biological, social, and economic impacts
of fishermen switching among gear
types and target species. Honest
reporting, and effective enforcement of
reporting requirements, is essential to
the calculation of an effective TAC, and
if the bottomfish stocks continue to
experience overfishing, more restrictive
management measures may become
necessary in the future.
Comment 34: The regulations do not
take into account the fact that during the
closed season fishing supply stores,
many of which are ‘‘mom and pop’’
operations, and the fish auction will
lose revenues as the market shifts to
imports.
Response: NMFS recognizes that
certain businesses will be affected by
this final rule related to effort
restrictions in the bottomfish fishery,
and may experience a temporary
downturn in revenues. This downturn
may be offset, however, by increased
fishing activity for non-Deep 7
bottomfish, and in the pelagic and other
fisheries. In addition, the closed season
is scheduled to take place during the
months of historically low bottomfish
fishing effort and lower demand. The
expected result of this management
regime is to increase the productivity of
the bottomfish fishery in the long run
which will lead to an increase in
profitability to vessels, fishing gear
suppliers, vessel support operations,
fish markets, food and fuel providers,
and other related businesses.
Comment 35: The requirement for
holders of the non-commercial permit to
report all catch, regardless of whether it
is caught within Federal or State waters,
exceeds the jurisdiction of the Federal
Government.
Response: Hawaiian bottomfish stocks
and habitat are shared between State
and Federal jurisdictions. As such, in
response to the demonstrated
conservation and management need to
end overfishing of Hawaiian bottomfish
stocks, it is essential that
comprehensive information about the
fishery be collected to effectively
implement this rule.
Comment 36: The wording of the
regulations makes it sound as if the
State CML can permit non-commercial
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fishing. This language needs
clarification.
Response: Holding a State CML
satisfies the permitting requirements for
non-commercial bottomfish fishing in
Federal waters. However, commercial
fishing in Federal or State waters
requires a State CML. With regard to
reporting, if the vessel operator holds a
non-commercial permit, the operator
must report the entire catch and effort
for the fishing day to NMFS. If the
vessel operator holds a State CML, the
operator must report the entire catch
and effort for the fishing day to the
State. The compliance guide and
Federal non-commercial logbook
instructions will provide further
direction to assist fishermen with these
reporting requirements.
Comment 37: Section 665.72(e) needs
to be clarified by removing the word
‘‘commercially’’ because the closure
applied to both commercial and noncommercial fishing.
Response: The final rule clarifies that
when the fishery is closed, Deep 7
bottomfish may not be harvested or
sold, except as otherwise authorized by
law.
Comment 38: Explain why the rule
requires reporting of all catch by holders
of the non-commercial bottomfish
permit, but the permit is only required
for those that fish for BMUS.
Response: The requirement to report
all catch from bottomfish trips will
provide a complete profile of the noncommercial bottomfish fishery, its
interplay with related fisheries (e.g.,
troll and handline fishing for tunas and
related species), and the biological,
social, and economic effects of
fishermen switching among gear types
and target species.
Comment 39: Explain why it would
be unlawful to fail to report relative to
§ 665.3.
Response: Holding either a Federal
non-commercial permit or State CML
satisfies the permit requirements of this
final rule. Section 665.3 reinforces the
existing requirement for State CML
holders to report their catch and effort
to the State, as required by applicable
State law or regulation.
Comment 40: This final rule unfairly
targets the bottomfish fishermen. The
activities of divers, shore-casters and
kayakers should also be regulated.
Response: The final rule applies only
to vessel-based bottomfish fishing in
U.S. EEZ waters (3–200 nm offshore)
with the objective to reduce bottomfish
overfishing in the Hawaiian
Archipelago. Divers, shore-casters and
kayakers fish primarily in State waters
(0–3 nm) and, as such, they are subject
to State of Hawaii regulations including
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the BRFAs, gear restrictions,
recreational bag limits, and commercial
permits and reporting, as appropriate.
Comment 41: Stock assessments
should be based on scientific
information.
Response: Fishery scientists have
conducted stock assessments using a
combination of the State of Hawaii
commercial fishing database and
fishery-independent information. The
most recent stock assessment indicated
that the current level of bottomfish
fishing effort in the main Hawaiian
Islands is not sustainable in the long
term, and must be reduced by 24
percent in 2008. State and PIFSC
scientists will continue to monitor the
bottomfish fishery through commercial
information reported by State CML
holders. Also, NMFS independent
research and information reported by
non-commercial bottomfish permit
holders will be used by the Council and
NMFS to set the annual bottomfish
TAC. Bottomfish stock assessments and
TAC are based on the best scientific
information available.
Comment 42: The proposed
regulations are redundant to existing
State of Hawaii requirements, adding
unnecessary costs and paperwork
burdens.
Response: Current State of Hawaii
CML and data reporting only apply to
commercial fishing. This final rule is
intended to obtain information on the
non-commercial bottomfish fishery in
Hawaii. The Federal permit requirement
is satisfied with a State CML, so the
permit requirement is not redundant. A
fee is required for a non-commercial
permit and the fee amount is limited to
the administrative cost to process the
permit application. If the vessel operator
holds a non-commercial permit, the
operator must report the entire catch
and effort for the fishing day to NMFS.
If the vessel operator holds a State CML,
the operator must report the entire catch
and effort for the fishing day to the
State. Thus, there is no redundant
reporting requirement. Vessels that are
marked according to State requirements
are exempt from Federal vessel
identification requirements, so there is
no redundancy in the vessel
identification requirements. The Federal
non-commercial bag limit of five fish is
consistent with existing State
requirements.
Comment 43: Regarding the Federal
non-commercial bag limits, it would be
difficult to determine how many fish are
caught in State waters and how many
are caught in Federal waters; the rule is
unclear whether both bag limits would
apply, i.e., five State and five Federal.
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Response: The holder of a Federal
non-commercial bottomfish permit is
limited to five Deep 7 fish, regardless of
where the fish are caught. The State of
Hawaii recreational bag limit of five fish
applies to other non-commercial
fishermen. Thus, a limit of five
bottomfish applies to all noncommercial fishing.
Comment 44: Relatively few
dedicated commercial fishermen catch
the majority of bottomfish, so by not
limiting commercial bottomfish
fishermen to a specific amount of fish is
counter-productive to ending
overfishing of bottomfish in the MHI.
Response: The final rule limits
catches by commercial fishermen
through an annual TAC. When the TAC
is reached in any given year, both
commercial and non-commercial
fisheries for Deep 7 bottomfish are
closed for the remainder of the fishing
year.
Comment 45: A comprehensive
review of alternative measures to
maintain an adequate level of
bottomfish stock needs to be done
before changes are made to the
regulations.
Response: The Council, in its FSEIS,
analyzed the potential impacts of a
range of management alternatives
related to ending overfishing in the
MHI. The preferred alternative was
chosen because it reduces fishing effort
by the required amount to end
overfishing, provides a mechanism for
data collection from the noncommercial sector, and allows for the
establishment of a total allowable catch
limit that can be adjusted each year
based on stock assessments. Copies the
FSEIS are available from the Council
(see ADDRESSES).
Changes from the Proposed Rule
In this final rule, several changes were
made from the proposed rule to provide
clarification of the requirements. The
proposed rule would have established
an expiration date of August 31 for Main
Hawaiian Islands non-commercial
bottomfish permits. NMFS notes that
there is no administrative or
management necessity or advantage to
setting a specific permit expiration date.
NMFS estimates that it will process up
to 5,000 applications per year, and a
specific expiration date would
disproportionately concentrate
administrative burdens to certain times
of the year, potentially causing
significant and unacceptable delays in
the processing of permits. Authorizing
permits to be valid for one year from the
date of issuance will allow for
operational efficiency on a long-term
basis. The final rule clarifies that
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permits are valid for the time specified
on the permit, i.e., one year from the
date of issuance, and also clarifies that,
while 15 CFR 904 relates to permit
revocation and suspension, such
revocations and suspensions may also
occur as other types of administrative
actions.
The requirements for the new Main
Hawaiian Islands non-commercial
permit include provisions regarding
catch reporting, bag limits, etc. The
proposed rule was unclear about
‘‘mixed’’ fishing trips, where some
fishermen on the trip hold Federal Main
Hawaiian Islands non-commercial
permits, and some hold State of Hawaii
Commercial Marine Licenses. The State
of Hawaii defines these mixed trips to
be non-commercial. To be consistent
with State rules, the final rule clarifies
that, if any participant on the trip is
non-commercial, then the entire trip is
non-commercial, and participants are
subject to non-commercial
requirements, including reporting and
bag limits.
The proposed rule would require all
non-commercial fishermen on a fishing
trip to have either a Main Hawaiian
Islands non-commercial permit or a
State CML, ostensibly including charter
boat patrons. The State of Hawaii
requires any person providing vessel
charter services in the State for the
taking of marine life in or outside of the
State to obtain a State CML. The charter
operator does not need to sell any fish-merely offering the charter service
triggers the requirement. Licensed
charter vessel operators are also
required to submit State commercial
fishing reports in which all the effort
and catch on the trips are to be reported,
including catch by patrons. Only two
percent of charter fishing vessels
statewide use some bottomfish fishing
gear; charter fishing is primarily pelagic
fishing. The few vessels that
occasionally offer charter bottomfish
fishing usually target inshore reef slope
or shallow bottomfish species, not the
Deep 7 species. Additionally, most
studies indicate that the majority of
charter patrons are out-of-state visitors,
and not residents, and it would be
difficult for most visitors to apply for
and obtain a Federal permit during the
short time of their visit. The final rule
will clarify that customers on
bottomfish charter fishing trips are
exempt from the non-commercial
bottomfish permit requirement where
the charter vessel operator is compliant
with state laws and regulations.
Additionally, since charter boat
customers are considered to be noncommercial fishermen, and noncommercial fishermen are subject to bag
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limits under State requirements, this
final rule requires Deep 7 bottomfish
charter boat customers to comply with
bag limits when fishing for Deep 7.
The proposed rule would require
operators of vessels registered for use
under Main Hawaiian Islands noncommercial bottomfish permits to report
the catch, effort, and other data from
each fishing trip to NMFS. Additionally,
the State of Hawaii requires State CML
holders to report their catch and effort
to the State. On mixed trips, where
some fishermen on the trip hold Federal
non-commercial permits, and some hold
State CMLs, there is a potential for
double-reporting of the catch because
both permit holders are required to
report but to different agencies. No
change will be made to the final rule,
but the compliance guide and the
Federal non-commercial logsheet
instructions will clarify that noncommercial vessel operators need to
report only the catch made by holders
of Main Hawaiian Islands noncommercial bottomfish permits, and not
that of the holders of State CMLs.
The implementation of the new Main
Hawaiian Islands non-commercial
permit creates a link to the Federal
vessel identification requirement in
§ 665.16 that requires Federal permit
holders to mark their vessels in a
specific way for aerial and at-sea
identification purposes. The existing
Federal vessel identification
requirements were created for the larger
commercial fishing vessel to assist in
aerial and at-sea enforcement of fishing
regulations. Current State-registered
bottomfish vessels are marked with an
official HA number, with the addition of
the letters ‘‘BF,’’ but the typical Hawaiibased non-commercial bottomfish vessel
is not large enough to have the
superstructure or deckhouse to support
Federal vessel identification markings.
Also, the bottomfish closed season and
other restrictions for bottomfish are
specific to Deep 7 species, not all
bottomfish fishing. Enforcement of and
compliance with this final rule are best
addressed dockside, not at sea or from
the air, so large lettering of the vessel’s
official number is not essential.
Furthermore, imposing on the public a
duplicative Federal vessel marking
(collection-of-information) requirement
with existing State’s requirement is
inconsistent with the purpose of the
Paperwork Reduction Act. The final rule
will clarify that those non-commercial
bottomfish vessels that are in
compliance with state bottomfish vessel
registration and marking requirements
are exempt from the Federal vessel
identification requirements.
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The Magunson Act authorizes NMFS
to collect fees for all permits. The
preamble to the proposed rule noted
that fees would be collected for Main
Hawaiian Islands non-commercial
bottomfish permits, but the regulatory
text was not included. The final rule
clarifies that fees will be charged for
Main Hawaiian Islands non-commercial
bottomfish permits, and that the fees are
non-refundable and are collected to
offset the administrative costs
associated with issuing the permits.
The proposed rule would have
established a prohibition against owning
a fishing vessel that participates in noncommercial bottomfish fishing without
a Main Hawaiian Islands noncommercial bottomfish permit or State
CML. The proposed rule neglected,
however, to create the related
requirement, so the final rule creates the
requirement.
The final rule adds the definition of
State of Hawaii Commercial Marine
License, which was omitted in the
proposed rule, and revises the definition
of Main Hawaiian Islands NonCommercial Bottomfish Fishing Permit
to clarify that the permit is required to
own or fish from a vessel that is used
in any non-commercial vessel-based
fishing, landing, or transshipment of
any BMUS in the Main Hawaiian
Islands Management Subarea.
The final rule clarifies that both the
vessel owner and vessel operator share
responsibility for submitting required
logbook information for each day of the
fishing trip.
The final rule also clarifies the
procedures used by the Regional
Administrator (RA) in notifying the
public of the projected closure date for
the fishery. The RA will file an official
notice of the closure with the Office of
the federal Register at least 14 days in
advance of the projected closure date.
The final rule also clarifies that, in
addition to the prohibition on fishing
for Deep 7 bottomfish after the TAC is
reached, Deep 7 bottomfish species may
not be sold or offered for sale after the
TAC is reached unless otherwise legally
harvested.
The final rule also reorders the
numbering of new §§ 665.73 (bag limits)
and 665.74 (closed season). Because the
closed season will be effective only in
2008 and repealed afterward,
renumbering the sections now will
preclude the need to renumber them
later.
Classification
The NOAA Assistant Administrator
for Fisheries (AA) determined that
Amendment 14 is necessary for the
conservation and management of the
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affected fisheries, and that the
amendment is consistent with the
Magnuson-Stevens Act and other
applicable laws.
A final environmental impact
statement dated December 19, 2007, was
prepared for this final rule. The FSEIS
was filed with the Environmental
Protection Agency on January 4, 2008. A
notice of availability was published on
January 11, 2008 (73 FR 2027). In
approving Amendment 14 on March 18,
2008, NMFS issued a Record of Decision
(ROD) identifying the selected
alternative. A copy of the ROD is
available from William L. Robinson (see
ADDRESSES).
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
Consistent with section 604 of the
Regulatory Flexibility Act, NMFS
prepared a final regulatory flexibility
analysis (FRFA) for Amendment 14, as
follows:
order to minimize impacts to small entities.
Economic losses to the commercial sector
could be mitigated somewhat by increases to
available harvest from improvements to the
bottomfish stock and economic benefits
derived from other fisheries or other uses of
fishing vessels (opportunity costs), to the
extent they exist. Given that there could be
sizable adverse economic impacts to the
commercial fishery resulting from one TAC
for commercial and non-commercial sectors,
NMFS will complete a Regulatory Flexibility
Analysis to determine the economic impacts
to commercial vessels when non-commercial
landings are estimated and the 2008–09 TAC
is specified.
Additionally, by the time the TAC is
specified, NMFS should have information on
the State of Hawaii’s intentions regarding
possible changes to the State bag limit
requirements. Since the universe of affected
entities does not include non-commercial
fishermen, economic impacts to this group
are not considered under this FRFA.
However, those impacts were analyzed by the
Council as part of the Regulatory Impact
Review to assess regional and national
economic impacts.
This FRFA incorporates the IRFA prepared
for Amendment 14. The preamble to the
proposed rule included a detailed summary
of the analyses contained in the IRFA, and
that discussion is not repeated in its entirety
here. A statement of the need for, and
objectives of, the rule is provided in the
preambles to the proposed rule and to this
final rule, and is not repeated here.
There were two comments on the IRFA,
and NMFS responds as follows:
Comment 1: The statement that ‘‘There are
no reporting, recordkeeping, or other
compliance requirements for commercial
vessels in the proposed rule’’ seems out of
place, given that all vessels must report their
catch toward the TAC.
Response: The keyword in that phrase is
‘‘commercial’’. This rule does not create new
requirements for commercial vessels or
operators. Under current State of Hawaii
regulations, all commercial fishermen are
required to have a State CML and report their
catch to the State, and are subject to vesselmarking requirements. In monitoring and
calculating the TAC, the commercial
information collected by the State will be
incorporated with the non-commercial data
collected under the requirements in this rule.
Comment 2: The statement that vessels in
the bottomfish fishery ‘‘are not
independently-owned and operated’’ is
inaccurate, as many individuals own boats
and fish from their own boats.
Response: The proposed rule contained a
typographic error. The full sentence should
have read ‘‘All 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 and
operated, are not dominant in their field of
operation, and have annual gross receipts not
in excess of $4 million.’’
Steps Taken to Minimize Impacts
The Magnuson-Stevens Act requirements
to prevent overfishing preclude allowing a
TAC to be set above a level of overfishing in
Description and Estimate of the Number of
Small Entities to Which the Rule Applies
Approximately 380 vessels were engaged
in the harvest of bottomfish based on 2000–
03 data. The aggregate gross receipts for these
vessels in the bottomfish fishery were $1.47
million with average gross receipts per vessel
of $3,870 annually. All 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 its 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. Furthermore, there
are no disproportionate economic impacts
among vessels based on geographic location,
gear, or vessel size resulting from publication
of this final rule.
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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.’’ The agency shall
explain the actions a small entity is required
to take to comply with a rule or group of
rules. As part of this rulemaking process, a
small entity compliance guide was prepared.
The guide will be sent to all vessels that have
historic landings in this fishery. In addition,
copies of this final rule and guide are
available from the Regional Administrator
(see ADDRESSES) and are also available at the
following web site: fpir.nmfs.noaa.gov.
This final rule contains collection-ofinformation requirements subject to the
PRA. These requirements have not yet
been approved, but OMB approval is
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18457
expected in the near future. NMFS will
publish a notice when these
requirements are cleared by OMB and
are, therefore, effective. The public
reporting burden for these requirements
is estimated to be 30 minutes for a new
permit application, and 20 minutes for
completing a fishing logbook each day.
NMFS estimates that 800–5,000 noncommercial fishermen will request
permits. Thus, the collection of
information burden estimate for permit
applications is 400–2,500 hours per
year. Estimating that between 800–1,800
vessels would make 10–50 trips per
year, 8,000–90,000 logbooks could be
generated each year. Thus, the total
collection of information burden
estimate for fishing data reporting
would be between 2,664 to 29,970 hours
per year.
Send comments regarding these
burden estimates or any other aspect of
this data collection, including
suggestions for reducing the burden, to
William L. Robinson, NMFS PIR (see
ADDRESSES), or by e-mail to
David_Rostker@omb.eop.gov or fax to
202–395–7285.
Notwithstanding any other provision
of the law, no person is required to
respond to, and no person shall be
subject to penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB control number.
A consultation under section 7 of the
Endangered Species Act was conducted
for Amendment 14. In a biological
opinion dated March 18, 2008, the
Regional Administrator determined that
fishing activities conducted under
Amendment 14 and its implementing
regulations are not likely to jeopardize
the continued existence of any
endangered or threatened species.
There is good cause under 5 U.S.C.
553(d)(3) to waive the 30–day delay in
effective date to implement these
measures in a timely manner. The
Council and NMFS completed FMP
Amendment 14 and the FSEIS in
December 2007, and the proposed rule
was published in February 2008. Public
comments on the proposed rule were
accepted until March 7, and by the time
this final rule was prepared, monitoring
of Hawaii bottomfish landings since the
beginning of the 2007–08 fishing year
(i.e., October 2007) indicates that the
proposed TAC of 178,000 lb will be
reached on or prior to April 17,
according to NMFS scientists. This is a
result of higher than anticipated
landings of Hawaii bottomfish during
the months of February and March
2008. This necessitates closure of the
fishery before the scheduled May 1
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beginning of the 2008 closed season. If
the fishery is not closed soon, the
recommended 2007–08 TAC would
likely be further exceeded, and
overfishing of Hawaii bottomfish would
continue, and an even lower quota
would be required to reduce fishing
mortality for fishing year 2008–09 to
adequately end the overfishing,
resulting in greater negative impacts on
the fishery. Therefore, the rule must be
effective upon the date of filing with the
Office of the Federal Register.
List of Subjects in 50 CFR Part 665
Administrative practice and
procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaii, Hawaiian
natives, Northern Mariana Islands,
Pacific Remote Island Areas, Reporting
and recordkeeping requirements.
Dated: March 31, 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 amended
as follows:
I
PART 665—FISHERIES IN THE
WESTERN PACIFIC
l. The authority citation for part 665
continues to read as follows:
I
Authority: 16 U.S.C. 1801 et seq.
2. In subpart A, add a new § 665.4 to
read as follows:
I
§ 665.4
Licensing and registration.
Any person who is required to do so
by applicable state law or regulation
must comply with licensing and
registration requirements in the exact
manner required by applicable state law
or regulation.
I 3. In § 665.12, revise the definitions of
‘‘Commercial fishing’’, ‘‘Fishing year’’,
and ‘‘Trap’’, and add the definitions for
‘‘Hawaii Restricted Bottomfish Species
Fishing Year 2007–08’’, ‘‘Hawaii
Restricted Bottomfish Species Fishing
Year 2008–09 and After’’, ‘‘Main
Hawaiian Islands non-commercial
bottomfish permit’’, ‘‘Non-commercial
fishing’’, and ‘‘State of Hawaii
Commercial Marine License’’ in
alphabetical order to read as follows:
§ 665.12
Definitions.
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*
*
*
*
Commercial fishing means fishing in
which the fish harvested, either in
whole or in part, are intended to enter
commerce or enter commerce through
sale, barter, or trade. All lobster fishing
in Crustaceans Permit Area 1 is
considered commercial fishing.
*
*
*
*
*
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Fishing year means the year beginning
at 0001 local time on January 1 and
ending at 2400 local time on December
31, with the exception of fishing for
Hawaii Restricted Bottomfish Species.
*
*
*
*
*
Hawaii restricted bottomfish species
fishing year 2007–08 means the year
beginning at 0001 HST on October 1,
2007, and ending at 2400 HST on April
30, 2008.
Hawaii restricted bottomfish species
fishing year 2008–09 and After means
the year beginning at 0001 HST on
September 1 and ending at 2400 HST on
August 31 of the next calendar year.
*
*
*
*
*
Main Hawaiian Islands NonCommercial Bottomfish Permit means
the permit required by § 665.61(a)(4) to
own or fish from a vessel that is used
in any non-commercial vessel-based
fishing, landing, or transshipment of
any bottomfish management unit
species in the Main Hawaiian Islands
Management Subarea.
Non-commercial fishing means
fishing that does not meet the definition
of commercial fishing.
*
*
*
*
*
State of Hawaii Commercial Marine
License means the license required by
the State of Hawaii for anyone to take
marine life for commercial purposes
(also known as the commercial fishing
license).
*
*
*
*
*
Trap means a box-like device used for
catching and holding lobsters or fish.
*
*
*
*
*
I 4. In § 665.13, revise paragraphs (f)(2)
and (g) to read as follows:
§ 665.13
Permits and fees.
(f) * * *
(2) PIRO will charge a non-refundable
processing fee for each application
(including transfers and renewals) for
the following permits. The amount of
the fee is calculated in accordance with
the procedures of the NOAA Finance
Handbook, for determining the
administrative costs of each special
product or service incurred in
processing the permit. The fee may not
exceed such costs and is specified with
each application form. The appropriate
fee must accompany each application.
Failure to pay the fee will preclude the
issuance, transfer or renewal of any of
these permits:
(i) Hawaii longline limited access
permit;
(ii) Mau Zone limited access permit;
(iii) Coral reef ecosystem special
permit;
(iv) American Samoa longline limited
access permit; and
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Sfmt 4700
(v) Main Hawaiian Islands noncommercial bottomfish permit.
*
*
*
*
*
(g) Expiration. Permits issued under
subparts C, D, E, F, and G of this part
are valid for the period specified on the
permit unless revoked, suspended,
transferred, or modified.
*
*
*
*
*
I 5. In § 665.14, revise paragraphs (a) to
read as follows:
§ 665.14
Reporting and recordkeeping.
(a) Fishing record forms. (1)
Applicability. The operator of any
fishing vessel subject to the
requirements of §§ 665.21, 665.41,
665.61(a)(2), 665.61(a)(3), 665.61(a)(4),
665.81, or 665.602 must maintain on
board the vessel an accurate and
complete record of catch, effort, and
other data on paper report forms
provided by the Regional Administrator,
or electronically as specified and
approved by the Regional
Administrator. All information specified
by the Regional Administrator must be
recorded on paper or electronically
within 24 hours after the completion of
each fishing day. The logbook
information, reported on paper or
electronically, for each day of the
fishing trip must be signed and dated or
otherwise authenticated by the vessel
operator in the manner determined by
the Regional Administrator, and be
submitted or transmitted via an
approved method as specified by the
Regional Administrator, and as required
by this paragraph (a).
(2) Timeliness of submission. (i) If
fishing was authorized under a permit
pursuant to §§ 665.21, 665.41,
665.61(a)(1), 665.61(a)(3), or 665.81 the
vessel operator must submit the original
logbook form for each day of the fishing
trip to the Regional Administrator
within 72 hours of the end of each
fishing trip, except as allowed in
paragraph (iii) of this section.
(ii) If fishing was authorized under a
permit pursuant to § 665.61(a)(4) the
vessel operator or vessel owner must
submit the original logbook form for
each day of the fishing trip to the
Regional Administrator within 72 hours
of the end of each fishing trip.
(iii) If fishing was authorized under a
PRIA bottomfish permit pursuant to
§ 665.61(a)(2), PRIA pelagic troll and
handline permit pursuant to § 665.21(f),
crustaceans fishing permit for the PRIA
(Permit Area 4) pursuant to § 665.41, or
a precious corals fishing permit for
Permit Area X-P-PI pursuant to § 665.81,
the original logbook form for each day
of fishing within the PRIA EEZ waters
must be submitted to the Regional
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Administrator within 30 days of the end
of each fishing trip.
(iv) If fishing was authorized under a
permit pursuant to § 665.602, the
original logbook information for each
day of fishing must be submitted to the
Regional Administrator within 30 days
of the end of each fishing trip.
*
*
*
*
*
I 6. In § 665.16, revise paragraph (a) and
add new paragraph (e) to read as
follows:
§ 665.16
Vessel identification.
(a) Each fishing vessel subject to this
subpart, except those identified in
paragraph (e) of this section, must
display its official number on the port
and starboard sides of the deckhouse or
hull, and on an appropriate weather
deck, so as to be visible from
enforcement vessels and aircraft.
*
*
*
*
*
(e) The following fishing vessels are
exempt from the vessel identification
requirements in this section:
(1) A vessel registered for use under
a Main Hawaiian Islands noncommercial bottomfish permit that is in
compliance with State of Hawaii
bottomfish vessel registration and
marking requirements.
(2) [Reserved]
I 7. In § 665.61, revise paragraph (a) to
read as follows:
§ 665.61
Permits.
(a) Applicability. (1) Northwestern
Hawaiian Islands (NWHI). The owner of
any vessel used to fish for, land, or
transship bottomfish management unit
species shoreward of the outer boundary
of the Northwestern Hawaiian Islands
subarea must have a permit issued
under this section, and the permit must
be registered for use with that vessel.
The PIRO will not register a single
vessel for use with a Ho omalu Zone
permit and a Mau Zone permit at the
same time. Mau Zone permits issued
before June 14, 1999, become invalid
June 14, 1999, except that a permit
issued to a person who submitted a
timely application under paragraph
(b)(3) of this section is valid until the
permit holder either receives a Mau
Zone limited entry permit or until final
agency action is taken on the permit
holder’s application. The Ho omalu
Zone and the Mau Zone limited entry
systems described in this section are
subject to abolition, modification, or
additional effort limitation programs.
(2) Pacific Remote Island Areas
(PRIA). The owner of any vessel used to
fish for, land, or transship bottomfish
management unit species shoreward of
the outer boundary of the Pacific
Remote Island Areas subarea must have
a permit issued under this section, and
the permit must be registered for use
with that vessel.
(3) Guam large vessel. The owner of
any large vessel used to fish for, land,
or transship bottomfish management
unit species shoreward of the outer
boundary of the Guam subarea must
have a permit issued under this section,
and the permit must be registered for
use with that vessel.
(4) Main Hawaiian Islands noncommercial. The owner of a vessel that
is used for and any person who
participates in non-commercial, vesselbased fishing, landing, or transshipment
of bottomfish management unit species
in the Main Hawaiian Islands
Management Subarea is required to
obtain a Main Hawaiian Islands noncommercial bottomfish permit or a State
of Hawaii Commercial Marine License.
If one or more persons on a vessel-based
bottomfish fishing trip holds a Main
Hawaiian Islands non-commercial
permit, then the entire trip is considered
non-commercial, and not commercial.
However, if any commercial fishing
occurs during or as a result of a vesselbased fishing trip, then the fishing trip
is considered commercial, and not noncommercial. Charter boat customers are
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Silver jaw jobfish
Squirrelfish snapper
Longtail snapper
Pink snapper
Snapper
Snapper
Sea bass
10. In subpart E, add a new § 665.72
to read as follows:
I
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13:41 Apr 03, 2008
Jkt 214001
not subject to the requirements of the
section.
*
*
*
*
*
I 8. In § 665.62, add new paragraphs (j)
through (n), as follows:
§ 665.62
Prohibitions.
*
*
*
*
*
(j) Falsify or fail to make or file
reports of all fishing activities
shoreward of outer boundary of the
Main Hawaiian Islands Management
Subarea, in violation of §§ 665.3 or
665.14(a).
(k) Own a vessel or fish from a vessel
that is used to fish non-commercially for
any bottomfish management unit
species in the Main Hawaiian Islands
Management Subarea without either a
Main Hawaiian Islands non-commercial
bottomfish permit or a State of Hawaii
Commercial Marine License, in
violation of §§ 665.4 or 665.61(a)(4).
(l) Fish for or possess any Hawaii
Restricted Bottomfish Species as
specified in § 665.71, in the Main
Hawaiian Islands Management Subarea
after a closure of the fishery, in violation
of §§ 665.72 or 665.74.
(m) Sell or offer for sale any Hawaii
Restricted Bottomfish Species, as
specified in § 665.71, after a closure of
the fishery, in violation of §§ 665.72 or
665.74.
(n) Harvest, possess, or land more
than a total of five fish (all species
combined) identified as Hawaii
Restricted Bottomfish Species in
§ 665.71 from a vessel in the Main
Hawaiian Islands Management Subarea,
while holding a Main Hawaiian Islands
non-commercial bottomfish permit, or
while participating as a charter boat
customer, in violation of § 665.73.
I 9. In subpart E, add a new § 665.71 to
read as follows:
§ 665.71 Hawaii restricted bottomfish
species.
Hawaii restricted bottomfish species
means the following species:
Common
Name
Common Name
Scientific Name
Lehi
Ehu
Onaga
Opakapaka
Kalekale
Gindai
Hapu’upu’u
§ 665.72
Total Allowable Catch (TAC) limit.
(a) TAC limits will be set annually for
the fishing year by NMFS, as
recommended by the Council, based on
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Fmt 4700
Sfmt 4700
18459
Aphareus rutilans
Etelis carbunculus
Etelis coruscans
Pristipomoides filamentosus
Pristipomoides sieboldii
Pristipomoides zonatus
Epinephelus quernus
the best available scientific, commercial,
and other information, and taking into
account the associated risk of
overfishing.
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ebenthall on PRODPC61 with RULES
(b) The Regional Administrator shall
publish a notice indicating the annual
Total Allowable Catch limit in the
Federal Register by August 31 of each
year, and shall use other means to notify
permit holders of the TAC limit for the
year.
(c) When the TAC limit specified in
this section is projected to be reached
based on analyses of available
information, the Regional Administrator
shall publish a notice to that effect in
the Federal Register and shall use other
means to notify permit holders. The
notice will include an advisement that
the fishery will be closed beginning at
a specified date, which is not earlier
than 14 days after the date of filing the
closure notice for public inspection at
the Office of the Federal Register, until
the end of the fishing year in which the
TAC is reached.
(d) On and after the date specified in
§ 665.72(c), no person may fish for or
possess any Hawaii Restricted
Bottomfish Species as specified in
§ 665.71 in the Main Hawaiian Islands
Management Subarea, except as
otherwise allowed by law.
(e) On and after the date specified in
§ 665.72(c), no person may sell or offer
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13:41 Apr 03, 2008
Jkt 214001
for sale Hawaii Restricted Bottomfish
Species as specified in § 665.71, except
as otherwise authorized by law.
(f) 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
this section.
(g) The Hawaii restricted bottomfish
species TAC limit for the 2007–08
fishing year is 178,000 lb (80,740 kg).
I 11. Under subpart E, add a new
§ 665.73 to read as follows:
§ 665.73
Non-commercial bag limits.
No more than a total of five fish (all
species combined) identified as Hawaii
Restricted Bottomfish Species as
specified in § 665.71, may be harvested,
possessed, or landed by any individual
participating in a non-commercial
vessel-based fishing trip in the Main
Hawaiian Islands Management Subarea.
Charter boat customers are also subject
to the bag limit.
I 12. In subpart E, add a new § 665.74
to read as follows:
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§ 665.74
Closed season.
(a) All fishing for, or possession of,
any Hawaii Restricted Bottomfish
Species as specified in § 665.71, is
prohibited in the Main Hawaiian Islands
Management Subarea during May 1,
2008, through August 31, 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 § 665.71, may
not be sold or offered for sale during
May 1, 2008, through August 31, 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. 08–1093 Filed 4–1–08; 11:30 am]
BILLING CODE 3510–22–S
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Agencies
[Federal Register Volume 73, Number 66 (Friday, April 4, 2008)]
[Rules and Regulations]
[Pages 18450-18460]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1093]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 071211828-8448-02]
RIN 0648-AU22
Fisheries in the Western Pacific; Bottomfish and Seamount
Groundfish Fisheries; Management Measures in the Main Hawaiian Islands
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
[[Page 18451]]
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements management measures for the vessel-
based bottomfish fishery in the Main Hawaiian Islands, including
requirements for non-commercial (recreational and subsistence) permits
and data reporting, a closed season, annual total allowable catch
limits, and non-commercial bag limits. This action is intended to end
the overfishing of bottomfish in the Hawaiian Archipelago.
DATES: This final rule is effective April 1, 2008, with the following
exceptions:
1. The following amendments are effective until September 1, 2008:
a. In Sec. 665.12, the definition of Hawaii restricted bottomfish
species fishing year 2007-08;
b. Paragraph (g) in Sec. 665.72 (the TAC for the 2007-08 fishing
year); and
c. Sec. 665.74 (the closed season).
2. The amendments to Sec. Sec. 665.13, 665.14, and 665.61, which
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act (PRA). When OMB approval is received, the
effective date will be announced in the Federal Register.
ADDRESSES: This final rule implements Amendment 14 to the Fishery
Management Plan for the Bottomfish and Seamount Groundfish Fisheries of
the Western Pacific Region (including a final environmental impact
statement, regulatory impact review, and initial regulatory flexibility
analysis). Copies of Amendment 14 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. A Record
of Decision (ROD) identifying the selected alternative was prepared for
this final rule and is available from William L. Robinson, Regional
Administrator, NMFS, Pacific Islands Region (PIR), 1601 Kapiolani Blvd,
Suite 1110, Honolulu, HI 96814-4700. Written comments regarding the
burden-hour estimates or other aspects of the collection-of-information
requirements contained in this final rule may be submitted to William
L. Robinson (see ADDRESSES), or to David Rostker, OMB, by e-mail to
David_Rostker@omb.eop.gov, or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Karla Gore, NMFS PIR, 808-944-2273.
SUPPLEMENTARY INFORMATION: This final rule is accessible at the Office
of the Federal Register's web site: www.gpoaccess.gov/fr/.
Bottomfish fishing in Hawaii is managed under the Fishery
Management Plan for the Bottomfish and Seamount Groundfish Fisheries of
the Western Pacific Region (Bottomfish FMP), which was developed by the
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 archipelago-wide multi-
species stock complex (bottomfish complex). The bottomfish complex is
comprised of certain deep-slope snappers, groupers, and jacks.
Fisheries and management programs for Hawaiian bottomfish operate in
two large geographic areas--the Northwestern Hawaiian Islands (NWHI)
and the main Hawaiian Islands (MHI).
There is currently no mandatory permitting or data reporting
requirement for non-commercial fishing. Some data on the non-commercial
bottomfish fishery are collected through surveys. NMFS estimates that,
based on the State boat registration program and independent surveys,
800-5,000 fishermen participate in the non-commercial bottomfish
fishery.
NMFS, on behalf of the Secretary of Commerce, determined that
overfishing is occurring on the bottomfish complex in the Hawaiian
Archipelago, with the primary problem being excessive fishing mortality
on seven deep water species (the ``Deep 7'' species) in the MHI. The
Deep 7 species 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).
On May 27, 2005, NMFS notified the Council of the overfishing and
requested the Council to take appropriate action to end the overfishing
(70 FR 34452, June 14, 2005). In response, the Council developed
Amendment 14 and management measures, which this final rule implements.
This final rule will reduce the fishing mortality for the Deep 7
species in the MHI by approximately 24 percent in 2008, will establish
a mechanism (annual TAC) to respond to future changes in stock status,
and will improve data collection from non-commercial bottomfish
fisheries in Federal waters around the MHI.
The final rule implements several management measures for vessel-
based bottomfish fishing in the MHI. First, a Federal bottomfish permit
is required for vessel owners and fishermen to conduct vessel-based
non-commercial fishing for any bottomfish management unit species
(BMUS), not just Deep 7 species, in Federal waters around the MHI
(except customers of charter fishing trips).
Second, the final rule requires operators of non-commercial fishing
vessels to submit daily Federal logbooks that document bottomfish
fishing effort and catch for each fishing trip, and vessel owners share
the responsibility for submitting the logbooks in a timely manner. The
data from these logbooks will be the basis for calculating non-
commercial fishing effort and harvest of BMUS, bycatch, and
interactions with protected species.
Third, the final rule implements a closed season from May through
August 2008. During this closure, fishing for Deep 7 species will be
prohibited in Federal waters. Fishing for bottomfish species other than
Deep 7 species will not be prohibited during the closed season.
Fourth, the final rule establishes an annual total allowable catch
(TAC) for the MHI bottomfish fishery. The TAC will be determined each
fishing year using the best available scientific information,
commercial and non-commercial fishing data, and other information, and
will consider the associated risk of overfishing. NMFS will publish in
the Federal Register by August 31 the TAC for the upcoming fishing
year, and will use other means to notify permit holders of the TAC.
When the TAC is projected to be reached, NMFS will publish notification
in the Federal Register and use other means to notify permit holders
that the fishery will be closed on a specified date, providing
fishermen with two weeks advance notice of the closure. The TAC for the
2007-08 fishing year (October 2007 through April 2008) is set at
178,000 lb (80,740 kg) of Deep 7 species. Progress toward the 2007-08
TAC is determined by the catch reported by holders of Hawaii commercial
marine license (CML). When the 2007-08 TAC is projected to be reached,
the commercial and non-commercial fisheries for Deep 7 bottomfish will
be closed. There is no prohibition on fishing for other bottomfish
species throughout the year. NMFS intends to repeal the Federal non-
commercial bag limits once the data collected from the non-commercial
bottomfish fishery are determined to be adequate to include in the
annual TAC calculation.
The final rule implements Federal bottomfish bag limits for non-
commercial fishing. Non-commercial fishermen are allowed to catch,
possess, and land as many as five Deep 7 fish combined, per person, per
fishing trip in
[[Page 18452]]
Federal waters. The State of Hawaii also has a similar bag limit for
non-commercial fishing.
Additional background information on this final rule may be found
in the preamble to the proposed rule published on February 1, 2008 (73
FR 6101), and is not repeated here.
Comments and Responses
On December 22, 2007, NMFS announced in the Federal Register the
availability of Amendment 14 (72 FR 73308), and on February 1, 2008,
NMFS published a notice of the proposed rule (73 FR 6101). The public
comment period for the amendment ended on February 25, 2008, and the
proposed rule comment period ended on March 7, 2008. NMFS received
comments from 17 entities, including the State of Hawaii, Department of
Land and Natural Resources, and non-commercial and commercial
bottomfish fishermen, and responds as follows:
Comment 1: NMFS should post online the available portion of the TAC
to allow fishermen access to information in a timely manner.
Response: NMFS will post the catch trends on the PIRO website at
www.fpir.noaa.gov to allow tracking of harvests to be counted toward
the TAC.
Comment 2: A real cause for the decline in Hawaii bottomfish is
that kahala (amberjacks) and other non-Deep 7 bottomfish species may be
out-competing the Deep 7 bottomfish species.
Response: NMFS does not have data to determine whether or not the
comment is correct. The final rule will allow for better collection of
information from non-commercial bottomfish fishermen which will give
fishery managers a better understanding of the catch composition and
relative abundance of all BMUS. With improved data, fishery managers
can make effective bottomfish management decisions to address these
concerns, such as interspecific competition, in the future.
Comment 3: Any new data collection requirement for commercial
fishermen will lead to duplication of effort and unnecessary expense.
Response: The final rule implements new permitting and reporting
requirements only for non-commercial bottomfish fishermen. There are no
new reporting requirements for any commercial fishermen, who must
continue to report their catch to the State of Hawaii. The final rule
clarifies the reporting requirements for ``mixed'' fishing trips where
some fishermen hold non-commercial bottomfish permits and some hold
State Commercial Marine Licenses (State CMLs), and for bottomfish
charter fishing customers, to minimize redundant reporting.
Comment 4: The State's closed areas (bottomfish restricted fishing
areas, or BRFAs) should be removed because they reduce suitable fishing
grounds and are too restrictive when combined with the new Federal
regulations.
Response:The BRFAs are under the management purview of the State of
Hawaii, and any changes to this management program must be done by the
State, not NMFS. The Federal measures implemented by this final rule
and the State's BRFAs are both intended to conserve Hawaiian
bottomfish.
Comment 5: Bag limits should not apply to commercial fishermen,
only to non-commercial fishermen.
Response: This final rule establishes bag limits only for non-
commercial bottomfish fishermen. State-licensed commercial fishermen
are not currently subject to bag limits.
Comment 6: More enforcement of current State bottomfish regulations
is needed.
Response: NMFS agrees that more enforcement is generally needed for
effective fishery management, whether it is for State or Federal
regulations. NOAA's Office for Law Enforcement (NOAA OLE), the U.S.
Coast Guard (USCG), and the State of Hawaii's Division of Conservation
and Resources Enforcement will work together to enforce the new
regulations.
Comment 7: All buyers and sellers of bottomfish should be required
to submit reports to eliminate the selling of bottomfish by non-
commercial fishermen.
Response: This final rule requires bottomfish fishermen to be
permitted as either commercial or non-commercial, and requires both
categories of permits to report their catch. Under current State law,
all fish buyers are required to submit State dealer reports for any
fish that they purchase. Dealers must purchase fish only from State-
licensed commercial fishermen. The dealer report provides a way to
cross-reference fish sales by fishermen.
Comment 8: The closed season should be the only management measure
implemented as it would achieve the desired reduction in catch levels,
but be less burdensome to fishermen because it would not require non-
commercial permits or reporting.
Response: The 2008 closed season is intended to reduce fishing
mortality to the target level to end overfishing in the first year. A
TAC is more effective and less-burdensome than seasonal closures for
preventing overfishing in the long term. To establish a TAC each year,
information about commercial and non-commercial fishing is essential.
This management strategy requires that both commercial and non-
commercial fishermen hold fishing permits and submit reports on their
catch and effort to the State and/or NMFS, as appropriate.
Comment 9: The regulations should not include jacks with the other
BMUS.
Response: Jacks, such as ulua, are BMUS, but they are not Deep 7
species, and fishing for jacks is not restricted by this final rule.
Only vessel-based fishing for Deep 7 species is subject to the 2008
closed season and the TAC. Information on the catches of jacks and
other BMUS by non-commercial vessel-based fishermen will be collected
under the new reporting requirements for comprehensive monitoring of
the fishery overall.
Comment 10: Many commercial fishermen have relinquished their State
CML because of stringent USCG regulations that apply to commercial
fishing vessels. The proposed regulations that require all fishing
vessels to have permits would be too burdensome on fishermen.
Response: This final rule creates permit requirements only for non-
commercial bottomfish fishermen. As such, the USCG requirements
governing commercial fishing vessels are not within the purview of this
final rule.
Comment 11: Enforcement of bag limits is difficult and should not
be applied to commercial fishermen because it would impact their
livelihood.
Response: This final rule establishes bag limits only for non-
commercial bottomfish fishermen. State-licensed commercial fishermen
are not currently subject to bag limits. NOAA OLE, the USCG, and the
State of Hawaii Division of Conservation and Resources Enforcement will
work together to enforce the new requirements, including non-commercial
bag limits.
Comment 12: The commercial fishery should be limited to operating
twice a week and the non-commercial fishery should operate the
remainder of the week with the non-commercial bag limit in place.
Response: Daily restrictions and rotating closures were not
considered by the Council and NMFS for this final rule. The
effectiveness of the rule in ending bottomfish overfishing will be
periodically reevaluated, and may be adjusted in the future, if
necessary. Alternative management measures, such as daily restrictions
and rotating closures, could be considered for future implementation.
[[Page 18453]]
Comment 13: The TAC should be used to manage the commercial fleet,
and the non-commercial fishery should be managed only through bag
limits.
Response: NMFS has determined that a TAC for both the commercial
and non-commercial fleet is the most effective way to ensure that
bottomfish stocks do not continue to experience overfishing. Non-
commercial bag limits will also help to relieve fishing pressure on the
stocks. The effect of these measures will be monitored and adjustments
made in the future, if necessary.
Comment 14: Non-commercial and commercial vessels should use
different colors for vessel marking to make enforcement easier.
Response: The final rule establishes requirements for non-
commercial bottomfish fishing, while current State regulations continue
to apply to commercial fishing. Because the State already has
requirements for the identification of bottomfish vessels, this final
rule will exempt non-commercial vessels that are compliant with State's
vessel marking requirements from the Federal requirements. Special
color-coding of vessel markings to facilitate the identification of
bottomfish vessels is a good idea, and NMFS will raise the idea with
enforcement officials for consideration in future rulemakings.
Comment 15: The reporting requirement should be voluntary due to
the financial burden that mandatory reporting would impose.
Response: Permits and reporting are essential to ensure that
accurate and complete information about non-commercial bottomfish
fishing is collected for the purposes of setting an appropriate TAC on
an annual basis. NMFS estimates that the time burden for completing
non-commercial permit applications to be 30 minutes per year, and 20
minutes for reporting catch and effort information in the logbooks
after each fishing trip. The logbooks are free to fishermen, and the
reporting cost is limited to mailing the reports to NMFS. The permit
will cost less than $80 (probably in the range $25-40), and NMFS
determined the costs associated with permitting and reporting are
nominal.
Comment 16: The closed season should be five months rather than
four months.
Response: The Council and NMFS chose a four-month closed season
because the best available scientific information indicates that it
will provide a balance between reducing fishing effort to levels
sufficient to end the overfishing, and providing continued
opportunities for bottomfish fishing.
Comment 17: A fleet-wide TAC and seasonal closure are the only
management measures that should implemented.
Response: The closed season will address overfishing only in 2008.
In the long term, a TAC will be the primary measure to end and prevent
overfishing of bottomfish. To implement an effective TAC program,
information on the numbers of bottomfish fishermen and their effort and
catch is needed. Thus, non-commercial permits and data reporting are
essential for the overall management program. Currently, information is
collected only for one sector, commercial bottomfish fishing.
Therefore, collecting information about non-commercial fishing is
necessary, and best accomplished through non-commercial permits and
data reporting. The non-commercial information will give us a better
understanding of the interplay between the bottomfish fishery and other
fishing activities. This information will be combined with the
commercial data to set an annual TAC to end and prevent overfishing of
Hawaiian bottomfish.
Comment 18: A TAC will create a ``race to the fish,'' will cause
high-grading, and may put smaller vessels at risk as they attempt to
catch their share of the TAC fish, possibly in unsafe sea conditions,
before the fishery closes.
Response: There may be a ``race to the fish'' early in the open
season as fishermen try to ensure that they catch their share of the
TAC. However, this final rule adjusts the fishing year to start late in
the calendar year so the fishery would likely remain open during the
winter holiday season, a time of increased demand for bottomfish. This
may reduce some of the incentive to fish during especially unsafe sea
conditions. High-grading should not be an issue, as all Deep 7
bottomfish caught, whether kept or discarded, will be counted toward
the TAC.
Comment 19: The vessel marking requirements for non-commercial
fishermen are impractical and onerous. Vessels are already required to
be registered and marked according to the State of Hawaii regulations.
Response: NMFS agrees, and in the final rule has amended the
regulations to exempt from the Federal requirements those vessels that
are in compliance with State bottomfish vessel marking requirements.
Comment 20: NMFS is asking for comment, but the decisions have
already been made regarding the proposed rule.
Response: NMFS reads and considers every comment received, and uses
these comments to consider whether to implement or change the proposed
regulations, consistent with Amendment 14. Comments received on its
proposed rule led NMFS to reconsider several aspect of the rule, and
resulted in changes from the proposed rule for several regulations,
such as vessel marking requirements.
Comment 21: Fishing is not the only cause of the reduced fish
population. Pollution, development, and global warming should be
considered as they are larger threats against the ecosystem.
Response: The final supplementary EIS (FSEIS) considered and
analyzed both fishing and non-fishing impacts on bottomfish resources.
In addition, the Council is developing fishery ecosystem management
plans that would address such non-fishing impacts on the Hawaii
ecosystem. Nonetheless, fishing has been identified as a major cause of
bottomfish overfishing and, as such, the final rule will control
bottomfish fishing mortality so that bottomfish stocks are sustained
for future generations.
Comment 22: A bag limit of five Deep 7 species is too low.
Response: This final rule implements Federal non-commercial bag
limits that complement existing State bag limits. The non-commercial
bag limit of five Deep 7 bottomfish is consistent with existing State
regulations for non-commercial bottomfish fishing. NMFS intends to
repeal the Federal non-commercial bag limits once the data collected
from the non-commercial bottomfish fishery are determined to be
adequate to include in the annual TAC calculation.
Comment 23: There should be BRFAs or a seasonal closure, not both.
Response: The 2008 closed season is being implemented to
immediately end bottomfish overfishing, and the other Federal
provisions implemented by this final rule, and the BRFAs, are intended
to conserve Hawaiian bottomfish over the long term.
Comment 24: Non-commercial bag limits should be eliminated because
non-commercial fishermen are already limited by the size of their
vessels, storage capacity, and weather.
Response: This final rule implements Federal non-commercial bag
limits that complement existing State bag limits. NMFS intends to
repeal the Federal non-commercial bag limits once the data collected
from the non-commercial bottomfish fishery are determined to be
adequate to include in the annual TAC calculation.
Comment 25: The non-commercial permit and reporting requirement
should be on a one-year trial basis. If at the end of one year, non-
commercial fishermen are significantly contributing
[[Page 18454]]
to the bottomfish catch the permit and reporting would continue. If
not, it could be eliminated.
Response: NMFS and the Council will monitor the fishery and
evaluate the effectiveness of these measures in ending and preventing
overfishing of Hawaiian bottomfish. The Council and NMFS may consider
adjustments to the fishery management regime in the future, if
necessary.
Comment 26: Reporting requirements for non-commercial fishermen
should be kept simple to reduce the burden to fishermen.
Response: The reporting forms have been designed to record only the
basic information required to effectively monitor the fishery. The
forms will come with instructions and contact information for further
questions about the forms. Comments on the form and the reporting
burden can be sent to William L. Robinson (see ADDRESSES) and by email
to David_Rostker@omb.eop.gov or by fax to 202-395-7285.
Comment 27: Clarify how the permit requirement and associated fee
differ from the recreational fishermen registry created under the
reauthorized Magnuson-Stevens Act and which is not able to charge a fee
until 2011.
Response: This final rule implements non-commercial bottomfish
permits and data collection under section 303 of the Magnuson-Stevens
Act, specifically to collect fishery information to be used by managers
to end overfishing of bottomfish in Hawaii. That section of the Act
authorizes the collection of fees for the issuance of such permits. The
recreational fishermen registry is authorized under Section 401 of the
Magnuson-Stevens Act as a national registration program for
recreational fishing in all regions (not specifically the Hawaiian
bottomfish fishery) and the Magnuson-Stevens Act authorizes the
collection of fees for that program beginning in 2011.
Comment 28: The non-commercial fee is higher than the commercial
fee which might make fishermen more inclined to get the commercial
permit.
Response: Holding either a Federal non-commercial permit or State
CML satisfies the requirements of this final rule. The fee for the non-
commercial permit has not yet been determined, as it is dependent on
the number of permits issued. The preamble to the proposed rule noted
that the fee would not exceed $80 per person, and it will probably be
in the range of $25-40.
Comment 29: Federal reporting requirements will require fishermen
to report all BMUS while the State of Hawaii requires reporting of Deep
7 species only. These inconsistent requirements make reporting
confusing to fishermen who fish in both State and Federal waters.
Response: The State requires commercial fishermen (State CML
holders) to report all species caught, and NMFS believes that the
collection of information regarding all BMUS is essential to understand
the combined impact of commercial and non-commercial fishing on
Hawaiian bottomfish stocks.
Comment 30: If fishermen report interactions with protected
species, as indicated on the reporting requirements, they may be held
liable under the Endangered Species Act (ESA).
Response: NMFS completed a biological opinion under section 7 of
the ESA that analyzed the impacts of implementing this final rule on
endangered and threatened species. That opinion, dated March 18, 2008,
concluded that this action is not likely to adversely affect the
Hawaiian monk seal, and is likely to adversely affect the endangered/
threatened green sea turtle. The incidental take of up to two green sea
turtles per year is authorized for the Hawaii bottomfish fishery. The
Federal logbooks will provide fishermen the opportunity to report
protected species interactions, including sea turtles and marine
mammals. NOAA OLE will investigate reported interactions on a case-by-
case basis to ascertain the nature of the interaction and whether or
not it was authorized.
Comment 31: The preamble of the proposed rule noted that the non-
commercial bag limit would be eliminated in 2008, but that is not
reflected in the regulatory text.
Response: The preamble to the proposed rule inadvertently indicated
that the bag limits would be repealed in 2008, but should have read
that NMFS will repeal the Federal non-commercial bag limits once the
data collected from the non-commercial bottomfish fishery are
determined to be adequate to include in the annual TAC calculation. The
final rule clarifies this point.
Comment 32: It is unrealistic to believe that fish suffering from
barotrauma can be resuscitated.
Response: Reduction of bottomfish barotrauma is possible with
correct handling procedures, and NMFS plans to work with the State and
Council to provide information to fishermen on effective ways to handle
fish to reduce barotrauma.
Comment 33: Fishermen will not honestly report their non-target
fish and bycatch for fear of reaching the TAC sooner.
Response: The TAC will be calculated only for the reported catch of
Deep 7 bottomfish species, and once the TAC is reached, only the
fishery for Deep 7 will be closed; fishing for other species may
continue. Information on other bottomfish and pelagic species caught
will provide NMFS and the Council with a comprehensive picture of the
non-commercial bottomfish fishery, its interplay with related
fisheries, and the biological, social, and economic impacts of
fishermen switching among gear types and target species. Honest
reporting, and effective enforcement of reporting requirements, is
essential to the calculation of an effective TAC, and if the bottomfish
stocks continue to experience overfishing, more restrictive management
measures may become necessary in the future.
Comment 34: The regulations do not take into account the fact that
during the closed season fishing supply stores, many of which are ``mom
and pop'' operations, and the fish auction will lose revenues as the
market shifts to imports.
Response: NMFS recognizes that certain businesses will be affected
by this final rule related to effort restrictions in the bottomfish
fishery, and may experience a temporary downturn in revenues. This
downturn may be offset, however, by increased fishing activity for non-
Deep 7 bottomfish, and in the pelagic and other fisheries. In addition,
the closed season is scheduled to take place during the months of
historically low bottomfish fishing effort and lower demand. The
expected result of this management regime is to increase the
productivity of the bottomfish fishery in the long run which will lead
to an increase in profitability to vessels, fishing gear suppliers,
vessel support operations, fish markets, food and fuel providers, and
other related businesses.
Comment 35: The requirement for holders of the non-commercial
permit to report all catch, regardless of whether it is caught within
Federal or State waters, exceeds the jurisdiction of the Federal
Government.
Response: Hawaiian bottomfish stocks and habitat are shared between
State and Federal jurisdictions. As such, in response to the
demonstrated conservation and management need to end overfishing of
Hawaiian bottomfish stocks, it is essential that comprehensive
information about the fishery be collected to effectively implement
this rule.
Comment 36: The wording of the regulations makes it sound as if the
State CML can permit non-commercial
[[Page 18455]]
fishing. This language needs clarification.
Response: Holding a State CML satisfies the permitting requirements
for non-commercial bottomfish fishing in Federal waters. However,
commercial fishing in Federal or State waters requires a State CML.
With regard to reporting, if the vessel operator holds a non-commercial
permit, the operator must report the entire catch and effort for the
fishing day to NMFS. If the vessel operator holds a State CML, the
operator must report the entire catch and effort for the fishing day to
the State. The compliance guide and Federal non-commercial logbook
instructions will provide further direction to assist fishermen with
these reporting requirements.
Comment 37: Section 665.72(e) needs to be clarified by removing the
word ``commercially'' because the closure applied to both commercial
and non-commercial fishing.
Response: The final rule clarifies that when the fishery is closed,
Deep 7 bottomfish may not be harvested or sold, except as otherwise
authorized by law.
Comment 38: Explain why the rule requires reporting of all catch by
holders of the non-commercial bottomfish permit, but the permit is only
required for those that fish for BMUS.
Response: The requirement to report all catch from bottomfish trips
will provide a complete profile of the non-commercial bottomfish
fishery, its interplay with related fisheries (e.g., troll and handline
fishing for tunas and related species), and the biological, social, and
economic effects of fishermen switching among gear types and target
species.
Comment 39: Explain why it would be unlawful to fail to report
relative to Sec. 665.3.
Response: Holding either a Federal non-commercial permit or State
CML satisfies the permit requirements of this final rule. Section 665.3
reinforces the existing requirement for State CML holders to report
their catch and effort to the State, as required by applicable State
law or regulation.
Comment 40: This final rule unfairly targets the bottomfish
fishermen. The activities of divers, shore-casters and kayakers should
also be regulated.
Response: The final rule applies only to vessel-based bottomfish
fishing in U.S. EEZ waters (3-200 nm offshore) with the objective to
reduce bottomfish overfishing in the Hawaiian Archipelago. Divers,
shore-casters and kayakers fish primarily in State waters (0-3 nm) and,
as such, they are subject to State of Hawaii regulations including the
BRFAs, gear restrictions, recreational bag limits, and commercial
permits and reporting, as appropriate.
Comment 41: Stock assessments should be based on scientific
information.
Response: Fishery scientists have conducted stock assessments using
a combination of the State of Hawaii commercial fishing database and
fishery-independent information. The most recent stock assessment
indicated that the current level of bottomfish fishing effort in the
main Hawaiian Islands is not sustainable in the long term, and must be
reduced by 24 percent in 2008. State and PIFSC scientists will continue
to monitor the bottomfish fishery through commercial information
reported by State CML holders. Also, NMFS independent research and
information reported by non-commercial bottomfish permit holders will
be used by the Council and NMFS to set the annual bottomfish TAC.
Bottomfish stock assessments and TAC are based on the best scientific
information available.
Comment 42: The proposed regulations are redundant to existing
State of Hawaii requirements, adding unnecessary costs and paperwork
burdens.
Response: Current State of Hawaii CML and data reporting only apply
to commercial fishing. This final rule is intended to obtain
information on the non-commercial bottomfish fishery in Hawaii. The
Federal permit requirement is satisfied with a State CML, so the permit
requirement is not redundant. A fee is required for a non-commercial
permit and the fee amount is limited to the administrative cost to
process the permit application. If the vessel operator holds a non-
commercial permit, the operator must report the entire catch and effort
for the fishing day to NMFS. If the vessel operator holds a State CML,
the operator must report the entire catch and effort for the fishing
day to the State. Thus, there is no redundant reporting requirement.
Vessels that are marked according to State requirements are exempt from
Federal vessel identification requirements, so there is no redundancy
in the vessel identification requirements. The Federal non-commercial
bag limit of five fish is consistent with existing State requirements.
Comment 43: Regarding the Federal non-commercial bag limits, it
would be difficult to determine how many fish are caught in State
waters and how many are caught in Federal waters; the rule is unclear
whether both bag limits would apply, i.e., five State and five Federal.
Response: The holder of a Federal non-commercial bottomfish permit
is limited to five Deep 7 fish, regardless of where the fish are
caught. The State of Hawaii recreational bag limit of five fish applies
to other non-commercial fishermen. Thus, a limit of five bottomfish
applies to all non-commercial fishing.
Comment 44: Relatively few dedicated commercial fishermen catch the
majority of bottomfish, so by not limiting commercial bottomfish
fishermen to a specific amount of fish is counter-productive to ending
overfishing of bottomfish in the MHI.
Response: The final rule limits catches by commercial fishermen
through an annual TAC. When the TAC is reached in any given year, both
commercial and non-commercial fisheries for Deep 7 bottomfish are
closed for the remainder of the fishing year.
Comment 45: A comprehensive review of alternative measures to
maintain an adequate level of bottomfish stock needs to be done before
changes are made to the regulations.
Response: The Council, in its FSEIS, analyzed the potential impacts
of a range of management alternatives related to ending overfishing in
the MHI. The preferred alternative was chosen because it reduces
fishing effort by the required amount to end overfishing, provides a
mechanism for data collection from the non-commercial sector, and
allows for the establishment of a total allowable catch limit that can
be adjusted each year based on stock assessments. Copies the FSEIS are
available from the Council (see ADDRESSES).
Changes from the Proposed Rule
In this final rule, several changes were made from the proposed
rule to provide clarification of the requirements. The proposed rule
would have established an expiration date of August 31 for Main
Hawaiian Islands non-commercial bottomfish permits. NMFS notes that
there is no administrative or management necessity or advantage to
setting a specific permit expiration date. NMFS estimates that it will
process up to 5,000 applications per year, and a specific expiration
date would disproportionately concentrate administrative burdens to
certain times of the year, potentially causing significant and
unacceptable delays in the processing of permits. Authorizing permits
to be valid for one year from the date of issuance will allow for
operational efficiency on a long-term basis. The final rule clarifies
that
[[Page 18456]]
permits are valid for the time specified on the permit, i.e., one year
from the date of issuance, and also clarifies that, while 15 CFR 904
relates to permit revocation and suspension, such revocations and
suspensions may also occur as other types of administrative actions.
The requirements for the new Main Hawaiian Islands non-commercial
permit include provisions regarding catch reporting, bag limits, etc.
The proposed rule was unclear about ``mixed'' fishing trips, where some
fishermen on the trip hold Federal Main Hawaiian Islands non-commercial
permits, and some hold State of Hawaii Commercial Marine Licenses. The
State of Hawaii defines these mixed trips to be non-commercial. To be
consistent with State rules, the final rule clarifies that, if any
participant on the trip is non-commercial, then the entire trip is non-
commercial, and participants are subject to non-commercial
requirements, including reporting and bag limits.
The proposed rule would require all non-commercial fishermen on a
fishing trip to have either a Main Hawaiian Islands non-commercial
permit or a State CML, ostensibly including charter boat patrons. The
State of Hawaii requires any person providing vessel charter services
in the State for the taking of marine life in or outside of the State
to obtain a State CML. The charter operator does not need to sell any
fish--merely offering the charter service triggers the requirement.
Licensed charter vessel operators are also required to submit State
commercial fishing reports in which all the effort and catch on the
trips are to be reported, including catch by patrons. Only two percent
of charter fishing vessels statewide use some bottomfish fishing gear;
charter fishing is primarily pelagic fishing. The few vessels that
occasionally offer charter bottomfish fishing usually target inshore
reef slope or shallow bottomfish species, not the Deep 7 species.
Additionally, most studies indicate that the majority of charter
patrons are out-of-state visitors, and not residents, and it would be
difficult for most visitors to apply for and obtain a Federal permit
during the short time of their visit. The final rule will clarify that
customers on bottomfish charter fishing trips are exempt from the non-
commercial bottomfish permit requirement where the charter vessel
operator is compliant with state laws and regulations. Additionally,
since charter boat customers are considered to be non-commercial
fishermen, and non-commercial fishermen are subject to bag limits under
State requirements, this final rule requires Deep 7 bottomfish charter
boat customers to comply with bag limits when fishing for Deep 7.
The proposed rule would require operators of vessels registered for
use under Main Hawaiian Islands non-commercial bottomfish permits to
report the catch, effort, and other data from each fishing trip to
NMFS. Additionally, the State of Hawaii requires State CML holders to
report their catch and effort to the State. On mixed trips, where some
fishermen on the trip hold Federal non-commercial permits, and some
hold State CMLs, there is a potential for double-reporting of the catch
because both permit holders are required to report but to different
agencies. No change will be made to the final rule, but the compliance
guide and the Federal non-commercial logsheet instructions will clarify
that non-commercial vessel operators need to report only the catch made
by holders of Main Hawaiian Islands non-commercial bottomfish permits,
and not that of the holders of State CMLs.
The implementation of the new Main Hawaiian Islands non-commercial
permit creates a link to the Federal vessel identification requirement
in Sec. 665.16 that requires Federal permit holders to mark their
vessels in a specific way for aerial and at-sea identification
purposes. The existing Federal vessel identification requirements were
created for the larger commercial fishing vessel to assist in aerial
and at-sea enforcement of fishing regulations. Current State-registered
bottomfish vessels are marked with an official HA number, with the
addition of the letters ``BF,'' but the typical Hawaii-based non-
commercial bottomfish vessel is not large enough to have the
superstructure or deckhouse to support Federal vessel identification
markings. Also, the bottomfish closed season and other restrictions for
bottomfish are specific to Deep 7 species, not all bottomfish fishing.
Enforcement of and compliance with this final rule are best addressed
dockside, not at sea or from the air, so large lettering of the
vessel's official number is not essential. Furthermore, imposing on the
public a duplicative Federal vessel marking (collection-of-information)
requirement with existing State's requirement is inconsistent with the
purpose of the Paperwork Reduction Act. The final rule will clarify
that those non-commercial bottomfish vessels that are in compliance
with state bottomfish vessel registration and marking requirements are
exempt from the Federal vessel identification requirements.
The Magunson Act authorizes NMFS to collect fees for all permits.
The preamble to the proposed rule noted that fees would be collected
for Main Hawaiian Islands non-commercial bottomfish permits, but the
regulatory text was not included. The final rule clarifies that fees
will be charged for Main Hawaiian Islands non-commercial bottomfish
permits, and that the fees are non-refundable and are collected to
offset the administrative costs associated with issuing the permits.
The proposed rule would have established a prohibition against
owning a fishing vessel that participates in non-commercial bottomfish
fishing without a Main Hawaiian Islands non-commercial bottomfish
permit or State CML. The proposed rule neglected, however, to create
the related requirement, so the final rule creates the requirement.
The final rule adds the definition of State of Hawaii Commercial
Marine License, which was omitted in the proposed rule, and revises the
definition of Main Hawaiian Islands Non-Commercial Bottomfish Fishing
Permit to clarify that the permit is required to own or fish from a
vessel that is used in any non-commercial vessel-based fishing,
landing, or transshipment of any BMUS in the Main Hawaiian Islands
Management Subarea.
The final rule clarifies that both the vessel owner and vessel
operator share responsibility for submitting required logbook
information for each day of the fishing trip.
The final rule also clarifies the procedures used by the Regional
Administrator (RA) in notifying the public of the projected closure
date for the fishery. The RA will file an official notice of the
closure with the Office of the federal Register at least 14 days in
advance of the projected closure date.
The final rule also clarifies that, in addition to the prohibition
on fishing for Deep 7 bottomfish after the TAC is reached, Deep 7
bottomfish species may not be sold or offered for sale after the TAC is
reached unless otherwise legally harvested.
The final rule also reorders the numbering of new Sec. Sec. 665.73
(bag limits) and 665.74 (closed season). Because the closed season will
be effective only in 2008 and repealed afterward, renumbering the
sections now will preclude the need to renumber them later.
Classification
The NOAA Assistant Administrator for Fisheries (AA) determined that
Amendment 14 is necessary for the conservation and management of the
[[Page 18457]]
affected fisheries, and that the amendment is consistent with the
Magnuson-Stevens Act and other applicable laws.
A final environmental impact statement dated December 19, 2007, was
prepared for this final rule. The FSEIS was filed with the
Environmental Protection Agency on January 4, 2008. A notice of
availability was published on January 11, 2008 (73 FR 2027). In
approving Amendment 14 on March 18, 2008, NMFS issued a Record of
Decision (ROD) identifying the selected alternative. A copy of the ROD
is available from William L. Robinson (see ADDRESSES).
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Consistent with section 604 of the Regulatory Flexibility Act, NMFS
prepared a final regulatory flexibility analysis (FRFA) for Amendment
14, as follows:
This FRFA incorporates the IRFA prepared for Amendment 14. The
preamble to the proposed rule included a detailed summary of the
analyses contained in the IRFA, and that discussion is not repeated
in its entirety here. A statement of the need for, and objectives
of, the rule is provided in the preambles to the proposed rule and
to this final rule, and is not repeated here.
There were two comments on the IRFA, and NMFS responds as
follows:
Comment 1: The statement that ``There are no reporting,
recordkeeping, or other compliance requirements for commercial
vessels in the proposed rule'' seems out of place, given that all
vessels must report their catch toward the TAC.
Response: The keyword in that phrase is ``commercial''. This
rule does not create new requirements for commercial vessels or
operators. Under current State of Hawaii regulations, all commercial
fishermen are required to have a State CML and report their catch to
the State, and are subject to vessel-marking requirements. In
monitoring and calculating the TAC, the commercial information
collected by the State will be incorporated with the non-commercial
data collected under the requirements in this rule.
Comment 2: The statement that vessels in the bottomfish fishery
``are not independently-owned and operated'' is inaccurate, as many
individuals own boats and fish from their own boats.
Response: The proposed rule contained a typographic error. The
full sentence should have read ``All 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 and operated, are not dominant
in their field of operation, and have annual gross receipts not in
excess of $4 million.''
Steps Taken to Minimize Impacts
The Magnuson-Stevens Act requirements to prevent overfishing
preclude allowing a TAC to be set above a level of overfishing in
order to minimize impacts to small entities. Economic losses to the
commercial sector could be mitigated somewhat by increases to
available harvest from improvements to the bottomfish stock and
economic benefits derived from other fisheries or other uses of
fishing vessels (opportunity costs), to the extent they exist. Given
that there could be sizable adverse economic impacts to the
commercial fishery resulting from one TAC for commercial and non-
commercial sectors, NMFS will complete a Regulatory Flexibility
Analysis to determine the economic impacts to commercial vessels
when non-commercial landings are estimated and the 2008-09 TAC is
specified.
Additionally, by the time the TAC is specified, NMFS should have
information on the State of Hawaii's intentions regarding possible
changes to the State bag limit requirements. Since the universe of
affected entities does not include non-commercial fishermen,
economic impacts to this group are not considered under this FRFA.
However, those impacts were analyzed by the Council as part of the
Regulatory Impact Review to assess regional and national economic
impacts.
Description and Estimate of the Number of Small Entities to Which the
Rule Applies
Approximately 380 vessels were engaged in the harvest of
bottomfish based on 2000-03 data. The aggregate gross receipts for
these vessels in the bottomfish fishery were $1.47 million with
average gross receipts per vessel of $3,870 annually. All 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 its 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. Furthermore, there are no disproportionate economic
impacts among vessels based on geographic location, gear, or vessel
size resulting from publication of this final rule.
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.'' The agency shall explain the
actions a small entity is required to take to comply with a rule or
group of rules. As part of this rulemaking process, a small entity
compliance guide was prepared. The guide will be sent to all vessels
that have historic landings in this fishery. In addition, copies of
this final rule and guide are available from the Regional
Administrator (see ADDRESSES) and are also available at the
following web site: fpir.nmfs.noaa.gov.
This final rule contains collection-of-information requirements
subject to the PRA. These requirements have not yet been approved, but
OMB approval is expected in the near future. NMFS will publish a notice
when these requirements are cleared by OMB and are, therefore,
effective. The public reporting burden for these requirements is
estimated to be 30 minutes for a new permit application, and 20 minutes
for completing a fishing logbook each day.
NMFS estimates that 800-5,000 non-commercial fishermen will request
permits. Thus, the collection of information burden estimate for permit
applications is 400-2,500 hours per year. Estimating that between 800-
1,800 vessels would make 10-50 trips per year, 8,000-90,000 logbooks
could be generated each year. Thus, the total collection of information
burden estimate for fishing data reporting would be between 2,664 to
29,970 hours per year.
Send comments regarding these burden estimates or any other aspect
of this data collection, including suggestions for reducing the burden,
to William L. Robinson, NMFS PIR (see ADDRESSES), or by e-mail to
David_Rostker@omb.eop.gov or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
A consultation under section 7 of the Endangered Species Act was
conducted for Amendment 14. In a biological opinion dated March 18,
2008, the Regional Administrator determined that fishing activities
conducted under Amendment 14 and its implementing regulations are not
likely to jeopardize the continued existence of any endangered or
threatened species.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effective date to implement these measures in a timely manner.
The Council and NMFS completed FMP Amendment 14 and the FSEIS in
December 2007, and the proposed rule was published in February 2008.
Public comments on the proposed rule were accepted until March 7, and
by the time this final rule was prepared, monitoring of Hawaii
bottomfish landings since the beginning of the 2007-08 fishing year
(i.e., October 2007) indicates that the proposed TAC of 178,000 lb will
be reached on or prior to April 17, according to NMFS scientists. This
is a result of higher than anticipated landings of Hawaii bottomfish
during the months of February and March 2008. This necessitates closure
of the fishery before the scheduled May 1
[[Page 18458]]
beginning of the 2008 closed season. If the fishery is not closed soon,
the recommended 2007-08 TAC would likely be further exceeded, and
overfishing of Hawaii bottomfish would continue, and an even lower
quota would be required to reduce fishing mortality for fishing year
2008-09 to adequately end the overfishing, resulting in greater
negative impacts on the fishery. Therefore, the rule must be effective
upon the date of filing with the Office of the Federal Register.
List of Subjects in 50 CFR Part 665
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaii, Hawaiian natives, Northern Mariana Islands,
Pacific Remote Island Areas, Reporting and recordkeeping requirements.
Dated: March 31, 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
l. The authority citation for part 665 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In subpart A, add a new Sec. 665.4 to read as follows:
Sec. 665.4 Licensing and registration.
Any person who is required to do so by applicable state law or
regulation must comply with licensing and registration requirements in
the exact manner required by applicable state law or regulation.
0
3. In Sec. 665.12, revise the definitions of ``Commercial fishing'',
``Fishing year'', and ``Trap'', and add the definitions for ``Hawaii
Restricted Bottomfish Species Fishing Year 2007-08'', ``Hawaii
Restricted Bottomfish Species Fishing Year 2008-09 and After'', ``Main
Hawaiian Islands non-commercial bottomfish permit'', ``Non-commercial
fishing'', and ``State of Hawaii Commercial Marine License'' in
alphabetical order to read as follows:
Sec. 665.12 Definitions.
* * * * *
Commercial fishing means fishing in which the fish harvested,
either in whole or in part, are intended to enter commerce or enter
commerce through sale, barter, or trade. All lobster fishing in
Crustaceans Permit Area 1 is considered commercial fishing.
* * * * *
Fishing year means the year beginning at 0001 local time on January
1 and ending at 2400 local time on December 31, with the exception of
fishing for Hawaii Restricted Bottomfish Species.
* * * * *
Hawaii restricted bottomfish species fishing year 2007-08 means the
year beginning at 0001 HST on October 1, 2007, and ending at 2400 HST
on April 30, 2008.
Hawaii restricted bottomfish species fishing year 2008-09 and After
means the year beginning at 0001 HST on September 1 and ending at 2400
HST on August 31 of the next calendar year.
* * * * *
Main Hawaiian Islands Non-Commercial Bottomfish Permit means the
permit required by Sec. 665.61(a)(4) to own or fish from a vessel that
is used in any non-commercial vessel-based fishing, landing, or
transshipment of any bottomfish management unit species in the Main
Hawaiian Islands Management Subarea.
Non-commercial fishing means fishing that does not meet the
definition of commercial fishing.
* * * * *
State of Hawaii Commercial Marine License means the license
required by the State of Hawaii for anyone to take marine life for
commercial purposes (also known as the commercial fishing license).
* * * * *
Trap means a box-like device used for catching and holding lobsters
or fish.
* * * * *
0
4. In Sec. 665.13, revise paragraphs (f)(2) and (g) to read as
follows:
Sec. 665.13 Permits and fees.
(f) * * *
(2) PIRO will charge a non-refundable processing fee for each
application (including transfers and renewals) for the following
permits. The amount of the fee is calculated in accordance with the
procedures of the NOAA Finance Handbook, for determining the
administrative costs of each special product or service incurred in
processing the permit. The fee may not exceed such costs and is
specified with each application form. The appropriate fee must
accompany each application. Failure to pay the fee will preclude the
issuance, transfer or renewal of any of these permits:
(i) Hawaii longline limited access permit;
(ii) Mau Zone limited access permit;
(iii) Coral reef ecosystem special permit;
(iv) American Samoa longline limited access permit; and
(v) Main Hawaiian Islands non-commercial bottomfish permit.
* * * * *
(g) Expiration. Permits issued under subparts C, D, E, F, and G of
this part are valid for the period specified on the permit unless
revoked, suspended, transferred, or modified.
* * * * *
0
5. In Sec. 665.14, revise paragraphs (a) to read as follows:
Sec. 665.14 Reporting and recordkeeping.
(a) Fishing record forms. (1) Applicability. The operator of any
fishing vessel subject to the requirements of Sec. Sec. 665.21,
665.41, 665.61(a)(2), 665.61(a)(3), 665.61(a)(4), 665.81, or 665.602
must maintain on board the vessel an accurate and complete record of
catch, effort, and other data on paper report forms provided by the
Regional Administrator, or electronically as specified and approved by
the Regional Administrator. All information specified by the Regional
Administrator must be recorded on paper or electronically within 24
hours after the completion of each fishing day. The logbook
information, reported on paper or electronically, for each day of the
fishing trip must be signed and dated or otherwise authenticated by the
vessel operator in the manner determined by the Regional Administrator,
and be submitted or transmitted via an approved method as specified by
the Regional Administrator, and as required by this paragraph (a).
(2) Timeliness of submission. (i) If fishing was authorized under a
permit pursuant to Sec. Sec. 665.21, 665.41, 665.61(a)(1),
665.61(a)(3), or 665.81 the vessel operator must submit the original
logbook form for each day of the fishing trip to the Regional
Administrator within 72 hours of the end of each fishing trip, except
as allowed in paragraph (iii) of this section.
(ii) If fishing was authorized under a permit pursuant to Sec.
665.61(a)(4) the vessel operator or vessel owner must submit the
original logbook form for each day of the fishing trip to the Regional
Administrator within 72 hours of the end of each fishing trip.
(iii) If fishing was authorized under a PRIA bottomfish permit
pursuant to Sec. 665.61(a)(2), PRIA pelagic troll and handline permit
pursuant to Sec. 665.21(f), crustaceans fishing permit for the PRIA
(Permit Area 4) pursuant to Sec. 665.41, or a precious corals fishing
permit for Permit Area X-P-PI pursuant to Sec. 665.81, the original
logbook form for each day of fishing within the PRIA EEZ waters must be
submitted to the Regional
[[Page 18459]]
Administrator within 30 days of the end of each fishing trip.
(iv) If fishing was authorized under a permit pursuant to Sec.
665.602, the original logbook information for each day of fishing must
be submitted to the Regional Administrator within 30 days of the end of
each fishing trip.
* * * * *
0
6. In Sec. 665.16, revise paragraph (a) and add new paragraph (e) to
read as follows:
Sec. 665.16 Vessel identification.
(a) Each fishing vessel subject to this subpart, except those
identified in paragraph (e) of this section, must display its official
number on the port and starboard sides of the deckhouse or hull, and on
an appropriate weather deck, so as to be visible from enforcement
vessels and aircraft.
* * * * *
(e) The following fishing vessels are exempt from the vessel
identification requirements in this section:
(1) A vessel registered for use under a Main Hawaiian Islands non-
commercial bottomfish permit that is in compliance with State of Hawaii
bottomfish vessel registration and marking requirements.
(2) [Reserved]
0
7. In Sec. 665.61, revise paragraph (a) to read as follows:
Sec. 665.61 Permits.
(a) Applicability. (1) Northwestern Hawaiian Islands (NWHI). The
owner of any vessel used to fish for, land, or transship bottomfish
management unit species shoreward of the outer boundary of the
Northwestern Hawaiian Islands subarea must have a permit issued under
this section, and the permit must be registered for use with that
vessel. The PIRO will not register a single vessel for use with a Ho
omalu Zone permit and a Mau Zone permit at the same time. Mau Zone
permits issued before June 14, 1999, become invalid June 14, 1999,
except that a permit issued to a person who submitted a timely
application under paragraph (b)(3) of this section is valid until the
permit holder either receives a Mau Zone limited entry permit or until
final agency action is taken on the permit holder's application. The Ho
omalu Zone and the Mau Zone limited entry systems described in this
section are subject to abolition, modification, or additional effort
limitation programs.
(2) Pacific Remote Island Areas (PRIA). The owner of any vessel
used to fish for, land, or transship bottomfish management unit species
shoreward of the outer boundary of the Pacific Remote Island Areas
subarea must have a permit issued under this section, and the permit
must be registered for use with that vessel.
(3) Guam large vessel. The owner of any large vessel used to fish
for, land, or transship bottomfish management unit species shoreward of
the outer boundary of the Guam subarea must have a permit issued under
this section, and the permit must be registered for use with that
vessel.
(4) Main Hawaiian Islands non-commercial. The owner of a vessel
that is used for and any person who participates in non-commercial,
vessel-based fishing, landing, or transshipment of bottomfish
management unit species in the Main Hawaiian Islands Management Subarea
is required to obtain a Main Hawaiian Islands non-commercial bottomfish
permit or a State of Hawaii Commercial Marine License. If one or more
persons on a vessel-based bottomfish fishing trip holds a Main Hawaiian
Islands non-commercial permit, then the entire trip is considered non-
commercial, and not commercial. However, if any commercial fishing
occurs during or as a result of a vessel-based fishing trip, then the
fishing trip is considered commercial, and not non-commercial. Charter
boat customers are not subject to the requirements of the section.
* * * * *
0
8. In Sec. 665.62, add new paragraphs (j) through (n), as follows:
Sec. 665.62 Prohibitions.
* * * * *
(j) Falsify or fail to make or file reports of all fishing
activities shoreward of outer boundary of the Main Hawaiian Islands
Management Subarea, in violation of Sec. Sec. 665.3 or 665.14(a).
(k) Own a vessel or fish from a vessel that is used to fish non-
commercially for any bottomfish management unit species in the Main
Hawaiian Islands Management Subarea without either a Main Hawaiian
Islands non-commercial bottomfish permit or a State of Hawaii
Commercial Marine License, in violation of Sec. Sec. 665.4 or
665.61(a)(4).
(l) 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 or 665.74.
(m) 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 or 665.74.
(n) Harv