Fisheries in the Western Pacific; Bottomfish and Seamount Groundfish Fisheries; 2008-09 Main Hawaiian Islands Bottomfish Total Allowable Catch, 6998-7001 [E9-3049]
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Federal Register / Vol. 74, No. 28 / Thursday, February 12, 2009 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
Becky Renko, telephone: 206 526 6110;
fax: 206 526 6736; or, e-mail:
becky.renko@noaa.gov.
This
action is authorized by regulations
implementing the Pacific Coast
Groundfish Fishery Management Plan
(FMP), which governs the groundfish
fishery off Washington, Oregon, and
California.
The 2008 non-tribal commercial OY
for Pacific whiting is 232,545 mt.
Regulations at 50 CFR 660.323(a)(2)
divide the commercial Pacific whiting
optimum yield (OY) into separate
allocations for the catcher/processor,
mothership, and shore-based sectors.
The catcher/processor sector is
composed of vessels that harvest and
process Pacific whiting. The mothership
sector is composed of catcher vessels
that harvest Pacific whiting and
mothership vessels that process, but do
not harvest. The shore-based sector is
composed of vessels that harvest Pacific
whiting for delivery to land-based
processors. Each commercial sector
receives a portion of the commercial
OY. For 2008 the catcher/processors
initially received 34 percent (79,065
mt), the motherships received 24
percent (55,811 mt), and the shore-based
sector received 42 percent (97,669 mt).
On November 5, 2008, 20,000 mt of
the 97,669 mt shore-based sector’s
allocation was reapportioned to the
catcher/processor and mothership
sectors (73 FR 72739, December 1,
2008). The revised Pacific whiting
allocations by sector as of November 6,
2008 were: catcher/processor 90,789 mt,
mothership 64,087 mt, and shore-based
77,669 mt. On November 18, 2008, an
additional 15,000 mt of the shore-based
sector’s allocation was reapportioned to
the catcher/processor sector (73 FR
72739, December 1, 2008). The revised
Pacific whiting allocations by sector as
of November 18, 2008 were: catcher/
processor 105,789 mt, mothership
64,087 mt, and shore-based 62,669 mt.
The best available information on
November 26, 2008, indicated that 4,000
mt of the shore-based sector allocation
and 6,000 mt of mothership sector
allocation would not be used by
December 31, 2008. Therefore the
surplus Pacific whiting was
reapportioned from the shore-based and
mothership sectors to the catcher/
processor sector on November 26, 2008.
Facsimiles directly to fishing businesses
and postings on the Northwest Regions
internet site were used to provide actual
notice to the affected fishers.
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SUPPLEMENTARY INFORMATION:
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NMFS Action
DEPARTMENT OF COMMERCE
This action announces the
reapportionment of 4,000 mt of Pacific
whiting from the shore-based sector and
6,000 mt of Pacific whiting from the
mothership sector to the catcher/
processor sector at 1400 local time
November 26, 2008. As of November 26,
2008, the revised Pacific whiting
allocations by sector for 2008 were:
catcher/processor 115,789 mt,
mothership 64,087 mt, and shore-based
77,669 mt.
National Oceanic and Atmospheric
Administration
Classification
The determinations to take these
actions were based on the most recent
data available. The aggregate data upon
which the determinations were based
are available for public inspection at the
Office of the Regional Administrator
(see ADDRESSES) during business hours.
This action is authorized by the
regulations implementing the FMP. The
Assistant Administrator for Fisheries,
NMFS, finds good cause to waive the
requirement to provide prior notice and
opportunity for comment on these
actions pursuant to 5 U.S.C. 553
(3)(b)(B), because providing prior notice
and opportunity would be
impracticable. It would be impracticable
because of the need for immediate
action. NMFS has determined that
providing an opportunity for prior
notice and comment would be
impractical and contrary to public
interest. Delay of this action would
leave Pacific whiting unharvested. In
addition, the catcher/processors needed
an immediate reallocation if they were
to keep their workers employed. For
these same reasons the agency finds
good cause to waive the 30–day delay in
effectiveness. These actions are taken
under the authority of 50 CFR
660.323(c), and are exempt from review
under Executive Order 12866. Actual
notice of the reapportionments was
provided to the affected fishers.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 9, 2009.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. E9–3022 Filed 2–11–09; 8:45 am]
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50 CFR Part 665
[Docket No. 0811281532–9086–02]
RIN 0648–XL64
Fisheries in the Western Pacific;
Bottomfish and Seamount Groundfish
Fisheries; 2008–09 Main Hawaiian
Islands Bottomfish Total Allowable
Catch
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final specification.
SUMMARY: NMFS specifies a total
allowable catch (TAC) for the 2008–09
fishing year of 241,000 lb (109,316 kg)
of Deep 7 bottomfish in the main
Hawaiian Islands (MHI).
DATES: This final specification is
effective March 16, 2009.
ADDRESSES: Copies of the Fishery
Management Plan for Bottomfish and
Seamount Groundfish Fisheries of the
Western Pacific Region (Bottomfish
FMP) and related Environmental Impact
Statement are available from the
Western Pacific Fishery Management
Council (Council), 1164 Bishop St.,
Suite 1400, Honolulu, HI 96813, tel
808–522–8220, fax 808–522–8226, or
www.wpcouncil.org.
An environmental assessment (EA),
including a Regulatory Impact Review
(RIR), was prepared that describes the
impact on the human environment that
would result from this action. Copies of
the EA are available from
www.regulations.gov, or William L.
Robinson, Regional Administrator,
NMFS Pacific Islands Region (PIR), 1601
Kapiolani Blvd. 1110, Honolulu, HI
96814.
FOR FURTHER INFORMATION CONTACT:
Toby Wood, Sustainable Fisheries
Division, NMFS PIR, 808–944–2234.
SUPPLEMENTARY INFORMATION: This final
specification is also accessible at
www.gpoaccess.gov/fr.
NMFS specifies a TAC for the 2008–
09 fishing year of 241,000 lb (109,316
kg) of Deep 7 bottomfish in the MHI, as
recommended by the Western Pacific
Fishery Management Council (Council).
The Council recommended that TAC
based on the best available scientific,
commercial, and other information,
taking into account the associated risk
of overfishing. The MHI Management
Subarea refers to the portion of U.S. EEZ
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around the Hawaiian Archipelago lying
to the east of 161° 20’ W. long. The Deep
7 bottomfish are onaga (Etelis
coruscans), ehu (E. carbunculus), gindai
(Pristipomoides zonatus), kalekale (P.
sieboldii), opakapaka (P. filamentosus),
lehi (Aphareus rutilans), and
hapu’upu’u (Epinephelus quernus).
When the TAC is projected to be
reached, NMFS will close the noncommercial and commercial Deep 7
bottomfish fisheries until the end of the
fishing year (August 31, 2009). During a
fishery closure for Deep 7 bottomfish,
no person may fish for, possess, or sell
any of these fish in the MHI, except as
otherwise authorized by law.
Specifically, fishing for, and the
resultant possession or sale of, Deep 7
bottomfish by vessels legally registered
to Mau Zone, Ho omalu Zone, or Pacific
Remote Island Areas bottomfish fishing
permits, and conducted in compliance
with all other laws and regulations, are
not affected by the closure. There is no
prohibition on fishing for or selling
other non-Deep 7 bottomfish species
throughout the year.
All other management measures
continue to apply in the MHI bottomfish
fishery. The MHI bottomfish fishery
reopened on November 15, 2008, and
will continue until August 31, 2009,
unless the fishery is closed prior to
August 31 as a result of the TAC being
reached.
Additional background information
on this final specification may be found
in the preamble to the proposed
specification published on December
10, 2008 (73 FR 75057), and is not
repeated here.
Comments and Responses
On December 10, 2008, NMFS
published a proposed specification and
request for public comments on the MHI
bottomfish TAC (73 FR 75057). The
comment period ended on December 26,
2008. NMFS received public comment
regarding the proposed TAC, and
responds as follows:
Comment 1: The proposed TAC
specification’s estimated 40 percent risk
of overfishing is unacceptably high and
is inconsistent with the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act) and National Standard 1. Although
the Magnuson-Stevens Act states that a
TAC cannot exceed the
recommendation of the Council’s
Scientific and Statistical Committee
(SSC), it does not preclude NMFS from
selecting an ACL that is lower.
Response: Consistent with National
Standard 3 of the Magnuson-Stevens
Act, bottomfish in the Hawaiian
Archipelago are managed as a unit
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throughout their range which includes
both the MHI and the Northwestern
Hawaiian Islands (NWHI) portions of
the archipelago. For the purposes of
National Standard 1 and status of stock
determinations, bottomfish stocks are
assessed on an archipelagic-wide basis.
Currently, bottomfish stocks in the
Hawaiian Archipelago are not
overfished and are not subject to
overfishing. Establishment of a Deep 7
bottomfish TAC is a precautionary
measure to prevent localized stock
depletion in the MHI Management
Subarea. The updated stock assessment
conducted by the NMFS Pacific Islands
Fisheries Science Center (PIFSC) in
2008 indicates that the selection of a
Deep 7 bottomfish TAC of 241,000 lb
(109,316 kg) for the MHI Management
Subarea in fishing year 2008–09 results
in a zero percent risk of overfishing in
the Hawaiian Archipelago. In other
words, a TAC of 241,000 lb (109,316 kg)
provides a 100 percent probability of
preventing overfishing while at the
same time allowing for optimum yield
to be produced from the fishery.
With respect to the MHI Management
Subarea alone, the updated stock
assessment indicates that this TAC
would have a 40 percent risk of
localized stock depletion (i.e., a 60
percent probability of preventing
localized stock depletion) in fishing
year 2008–09, decreasing to a 25 percent
risk of localized stock depletion (i.e., 75
percent probability of preventing
localized stock depletion) in fishing
year 2009–10. The TAC was specified at
a level that balances the need to protect
stocks from archipelagic overfishing and
localized stock depletion in the MHI,
with the need for fishermen to be able
to achieve optimum yield from the
fishery. Therefore, the TAC of 241,000
lb (109,316 kg) offers a reasonable
assurance of preventing overfishing, is
consistent with the Magnuson-Stevens
Act and National Standard 1, and forms
the basis of ongoing management of the
fishery through future TACs.
Additionally, other conservation and
management efforts have been
implemented by Federal and State of
Hawaii authorities for the specific
purpose of protecting bottomfish stocks
of the Hawaiian Archipelago. The
Papahanaumokuakea Marine National
Monument (Monument) closed much of
the historical bottomfish grounds in the
NWHI via a network of no-take marine
protected areas. Monument provisions
also require that all bottomfish fishing
in the NWHI cease on June 15, 2011.
Thus, bottomfish fishing mortality in
the NWHI will be reduced to zero. In
addition, the State manages 12
Bottomfish Restricted Fishing Areas in
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the MHI where bottomfish fishing is
prohibited. Together, these measures
complement the 2008–09 TAC of
241,000 lb (109,316 kg) for the MHI, and
support the long term sustainability of
bottomfish stocks throughout the
Hawaiian Archipelago.
Comment 2: The Magnuson-Stevens
Act stipulates that annual catch limits
and TACs should be set to prevent
overfishing, but selecting a TAC based
on a 40 percent risk of overfishing
virtually ensures that it will occur
frequently in this sector of the fishery.
Although the predicted risk of
archipelagic overfishing in the model
presented to the Council is negligible,
localized depletion is still a matter of
serious concern from a biological
standpoint.
Response: The TAC specification for
the MHI is a precautionary and interim
management measure implemented to
prevent archipelagic overfishing and
localized stock depletion in the MHI,
while allowing for optimum yield to be
achieved from the fishery on a continual
basis. This is distinct from the new
provisions of the reauthorized
Magnuson-Stevens Act relating to
establishment of annual catch limits
(ACLs). With few exceptions, National
Standard 1 guidelines require FMPs to
establish ACL mechanisms and
accountability measures (AMs) for all
stocks and stock complexes in the
fishery. The Council is currently
developing alternative mechanisms to
establish ACLs for all management unit
species, including bottomfish. NMFS
continues to work with the Council to
develop ACLs and AMs for
implementation through future
rulemaking.
The specified TAC is projected to
have a 100–percent probability of
success in preventing archipelagic
overfishing, and a 60–percent
probability of success in preventing
localized stock depletion in the MHI in
2008–09, increasing to a 75–percent
probability of success in preventing
localized stock depletion in 2009–10.
Real-time monitoring of the bottomfish
harvest enables NMFS and the State of
Hawaii to project when the TAC will be
reached and, thus, close the noncommercial and commercial bottomfish
fisheries in Federal and State waters,
respectively, so that the TAC is not
exceeded, further reducing the risk of
archipelagic overfishing and localized
stock depletion in the MHI.
Comment 3: A multispecies stock
assessment, such as that used to assess
the Hawaii bottomfish fishery, can mask
problems that exist for individual
species. Thus, management strategies
should be precautionary and
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conservative. Also, a 40–percent risk of
overfishing for the bottomfish complex,
as a whole, may represent an even
higher level of risk for fish species that
are currently stressed, and particularly
for a species with relatively high market
values, such as onaga.
Response: While multispecies stock
assessments may potentially mask
problems that exist for individual
species, data that are needed to develop
species-specific stock assessments are
lacking at this time. National Standard
3 requires management of stocks
throughout their range, and for
interrelated stocks, management as a
unit or in close coordination. In
addition, while National Standard 1
requires that MSY should be estimated
on a stock-by-stock basis whenever
possible, it does provide that in the case
of mixed-stock fisheries, MSY can be
specified on one or more species as an
indicator for the fishery as a whole.
NMFS has adopted this multispecies
assessment approach for Hawaiian
bottomfish stocks, until such time data
are sufficient to assess individual
species. NMFS will continue to work
with the Council, State of Hawaii, and
other management partners to improve
fishery monitoring programs, and will
continually reassess the status of
bottomfish stocks and may modify
management measures, as needed.
Comment 4: Localized depletion and
overfishing of bottomfish stocks is also
a matter of concern for the fishing
community. Informing MHI bottomfish
fishermen that the lack of fish in the
MHI is no longer a management concern
because there are plenty at distant atolls
in the NWHI does nothing to change the
amount of fish available to them.
Response: The management measures
and distance from population centers
provides protection for bottomfish in
the NWHI, and the recent archipelagic
stock assessment indicates that
bottomfish stocks are not overfished or
subject to overfishing. Nonetheless, the
Council and NMFS are concerned about
the status of Deep 7 bottomfish stocks in
the MHI. The specified TAC and related
management measures, including noncommercial fishing permits, data
collection program, and bag limits,
considered with the State of Hawaii’s
commercial data collection program and
Bottomfish Restricted Fishing Areas, are
intended to better monitor and protect
bottomfish in the MHI, while providing
adequate opportunity for fishermen to
achieve optimum yield.
Comment 5: The American Fisheries
Society (AFS) has recommended that
fishing mortality for the snappergrouper complex be maintained ‘‘at or
near natural mortality.’’ Given the life-
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history characteristics of bottomfish,
and uncertainty about their fishing and
natural mortality, additional caution
should be exercised with respect to all
policy decisions, including selection of
an acceptable level of risk of
overfishing.
Response: The PIFSC 2008 bottomfish
stock assessment incorporated the best
available biological information, and
updated bottomfish catch and effort data
through 2007. The assessment applied a
statistical log-linear model to develop a
spatially standardized CPUE series for
the MHI and estimate bottomfish
biomass, catch, and relative biomass for
2008–10. The Council and NMFS
considered and discussed the available
information, and the specification of a
TAC of 241,000 lb (109,316 kg) for the
MHI was determined to be consistent
with the Magnuson-Stevens Act and
National Standards.
Comment 6: NMFS has offered no
specific guidance on acceptable levels of
risk, although the Magnuson-Stevens
Act does specify that it be ‘‘low.’’
Discussions at a stock assessment
symposium at the 2007 meeting of the
AFS suggested that an overall risk of
overfishing of 10 percent would be
prudent (considering scientific and
management uncertainty), and values
up to 20 percent could be an acceptable
upper limit of risk.
Response: The TAC of 241,000 lb
(109,316 kg) provides a 100 percent
probability of success in preventing
archipelagic overfishing and, in the
MHI, a 60 percent probability of success
in preventing local stock depletion in
fishing year 2008–09, increasing to a 75
percent probability of success in
preventing local stock depletion in the
MHI in fishing year in 2009–10. The
Council and NMFS are required to
establish ACLs and AMs for all fisheries
by 2011.
Comment 7: The Magnuson-Stevens
Act states that proposed TACs should
incorporate both scientific and
management uncertainty to reduce the
risk of overfishing. However, the current
risk assessment incorporates only
scientific uncertainty, and does not
consider management uncertainty (e.g.,
underreported or incorrectly reported
fishing activity). As such, the analysis
underestimates the overall risk of
overfishing. Additionally, multiple
models recently presented at the
Council’s Scientific and Statistical
Committee (SSC) provided divergent
conclusions about the state of the
present fishery and its likely trajectory
under various potential management
frameworks. Considering these factors,
it is prudent to apply a cautious and
conservative management approach
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until these discrepancies can be
resolved.
Response: In addition to the scientific
uncertainty considered in the updated
stock assessment, when recommending
the 2008–09 TAC the Council also
considered the lag in fisheries data
collection, and considered the
possibility that the actual catch would
exceed the specified TAC limit. This
resulted in the Council recommending a
TAC that is less than the 254,000 lb
(115,212 kg) TAC that was initially
recommended by the Council’s SSC.
NMFS will continue to monitor the
fisheries and update stock assessments,
and may modify management measures,
if warranted.
Comment 8: At the 143rd Council
meeting, the State of Hawaii
representative proposed a 2008–09 TAC
of 178,000 lb (80,739 kg). This TAC was
suggested considering a prudent and
low level of risk based on the
multispecies nature of the stock
assessment, localized depletion of
bottomfish stocks and component
species in the MHI, life history
characteristics of component species,
and scientific and management
uncertainty. Of the proposed
alternatives published in the proposed
rule, we note that this is the only TAC
that fits within the prudent levels of risk
suggested by stock assessment scientists
at the AFS meeting.
Response: See responses to comments
above. The Council and NMFS specified
a TAC of 178,000 lb (80,739 kg) for the
2007–08 fishing year. Considering that
the Deep 7 bottomfish fisheries were
closed for nearly seven months (from
April 16, 2008, to November 15, 2008),
and to balance the need to prevent
archipelagic overfishing and localized
stock depletion with the need to achieve
optimum yield, the specified TAC for
2008–09 is higher. The Council and
NMFS will consider all information
when assessing bottomfish stocks and
specifying future TACs, including AFS
recommendations.
Classification
The Regional Administrator, NMFS
PIR, determined that this final
specification is necessary for the
conservation and management of the
MHI bottomfish fishery and that it is
consistent with the Magnuson-Stevens
Act and other applicable laws.
A final regulatory flexibility analysis
(FRFA) was prepared. The FRFA
incorporates the initial regulatory
flexibility analysis (IRFA), a summary of
the significant issues raised by the
public comments in response to the
IRFA and NMFS responses to those
comments, and a summary of the
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analyses completed to support the
action. The analysis follows:
NMFS prepared this FRFA for the 2008–09
MHI bottomfish TAC pursuant to section 604
of the Regulatory Flexibility Act. This FRFA
incorporates the IRFA, which appeared in its
entirety in the Classification section of the
proposed rule (73 FR 75057; December 10,
2008) and is not repeated in its entirety here.
The need for, and objectives of, the action
are provided in the preambles to the
proposed and final specifications. This action
does not duplicate, overlap, or conflict with
any other Federal rules. There are no
reporting, recordkeeping, or other
compliance requirements in the final
specification. This action is taken under
authority of the Magnuson-Stevens Act and
implementing regulations at 50 CFR § 665.72.
No comments were received on the IRFA.
The Small Business Administration defines
a commercial fishing business as a small
entity if annual gross receipts are less than
$4.0 million. All bottomfish vessels impacted
by this specification are considered to be
small entities under this definition. There are
approximately 380 vessels engaged in the
commercial harvest of MHI bottomfish. The
majority of the 380 vessels comprising the
affected universe are under 30 ft (9.1 m) in
length overall. There are no disproportionate
economic impacts from this specification
based on home port, gear type, or relative
vessel size.
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Minimizing Economic Impacts on Small
Entities
This rule would not have an adverse
economic impact to small entities because
the 2008–09 TAC of 241,000 lb (109,316 kg),
if taken, would produce $3,266 in average
per-vessel revenue, as compared to $2,412 in
average per-vessel revenue realized for the
2007–08 fishery.
NMFS considered two alternative TACs
that were larger than the one specified,
including 249,000 lb (112,944 kg) yielding a
potential $3,375 in average per-vessel
revenue, and 271,000 lb (122,923 kg)yielding
a potential $3,673 in average per-vessel
revenue. Although both of these alternatives
could generate larger average revenues than
the selected alternative, their specification
could also result in localized depletion of
MHI bottomfish, which is inconsistent with
National Standard 1 of the MagnusonStevens Act.
Small Entity Compliance Guide
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of 1996
states that for each rule or group of related
rules for which an agency is required to
prepare a FRFA, the agency shall publish one
or more guides to assist small entities in
complying with the rule, and shall designate
such publications as ‘‘small entity
compliance guides.’’ As part of this
rulemaking process, a small entity
compliance guide was prepared. Copies of
the small entity compliance guide are
available from the Regional Administrator
(see ADDRESSES) and are also available at
www.fpir.noaa.gov/SFD/SFDlregsl2.html.
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This action is exempt from the
procedures of E.O. 12866 because this
action contains no implementing
regulations.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 9, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E9–3049 Filed 2–11–09; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 071106673–8011–02]
RIN 0648–XN23
Fisheries of the Exclusive Economic
Zone Off Alaska; Pacific Cod by
Catcher Processors Using Hook–and–
Line Gear in the Bering Sea and
Aleutian Islands Management Area
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
SUMMARY: NMFS is prohibiting directed
fishing for Pacific cod by catcher
processors using hook–and–line gear in
the Bering Sea and Aleutian Islands
management area (BSAI). This action is
necessary to prevent exceeding the A
season allowance of the 2009 Pacific
cod total allowable catch (TAC)
allocated to catcher processors using
hook–and–line gear in the BSAI.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), February 6, 2009, through
1200 hrs, A.l.t., June 10, 2009.
FOR FURTHER INFORMATION CONTACT: Josh
Keaton, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI according to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) prepared by
the North Pacific Fishery Management
Council under authority of the
Magnuson–Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
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The A season allowance of the 2009
Pacific cod TAC allocated to catcher
processors using hook–and–line gear in
the BSAI is 37,660 metric tons (mt) as
established by the 2008 and 2009 final
harvest specifications for groundfish in
the BSAI (73 FR 10160, February 26,
2008). See § 679.20(a)(7)(ii)(A)(4),
§ 679.20(a)(7)(iv)(A)(2),
§ 679.20(c)(3)(iii), and § 679.20(c)(5).
In accordance with § 679.20(d)(1)(iii),
the Regional Administrator finds that
the A season allowance of the 2009
Pacific cod directed fishing allowance
allocated to catcher processors using
hook–and–line gear in the BSAI has
been reached. Consequently, NMFS is
prohibiting directed fishing for Pacific
cod by catcher processors using hook–
and–line gear in the BSAI.
After the effective date of this closure
the maximum retainable amounts at
§ 679.20(e) and (f) apply at any time
during a trip.
Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such requirement is
impracticable and contrary to the public
interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
delay the closure of Pacific cod by to
catcher processors using hook–and–line
gear in the BSAI. NMFS was unable to
publish a notice providing time for
public comment because the most
recent, relevant data only became
available as of February 4, 2009.
The AA also finds good cause to
waive the 30-day delay in the effective
date of this action under 5 U.S.C.
553(d)(3). This finding is based upon
the reasons provided above for waiver of
prior notice and opportunity for public
comment.
This action is required by section
679.20 and is exempt from review under
Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 9, 2009.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. E9–3013 Filed 2–9–09; 4:15 pm]
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[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Rules and Regulations]
[Pages 6998-7001]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3049]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 0811281532-9086-02]
RIN 0648-XL64
Fisheries in the Western Pacific; Bottomfish and Seamount
Groundfish Fisheries; 2008-09 Main Hawaiian Islands Bottomfish Total
Allowable Catch
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final specification.
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SUMMARY: NMFS specifies a total allowable catch (TAC) for the 2008-09
fishing year of 241,000 lb (109,316 kg) of Deep 7 bottomfish in the
main Hawaiian Islands (MHI).
DATES: This final specification is effective March 16, 2009.
ADDRESSES: Copies of the Fishery Management Plan for Bottomfish and
Seamount Groundfish Fisheries of the Western Pacific Region (Bottomfish
FMP) and related Environmental Impact Statement are available from the
Western Pacific Fishery Management Council (Council), 1164 Bishop St.,
Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or
www.wpcouncil.org.
An environmental assessment (EA), including a Regulatory Impact
Review (RIR), was prepared that describes the impact on the human
environment that would result from this action. Copies of the EA are
available from www.regulations.gov, or William L. Robinson, Regional
Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Blvd.
1110, Honolulu, HI 96814.
FOR FURTHER INFORMATION CONTACT: Toby Wood, Sustainable Fisheries
Division, NMFS PIR, 808-944-2234.
SUPPLEMENTARY INFORMATION: This final specification is also accessible
at www.gpoaccess.gov/fr.
NMFS specifies a TAC for the 2008-09 fishing year of 241,000 lb
(109,316 kg) of Deep 7 bottomfish in the MHI, as recommended by the
Western Pacific Fishery Management Council (Council). The Council
recommended that TAC based on the best available scientific,
commercial, and other information, taking into account the associated
risk of overfishing. The MHI Management Subarea refers to the portion
of U.S. EEZ
[[Page 6999]]
around the Hawaiian Archipelago lying to the east of 161[deg] 20' W.
long. The Deep 7 bottomfish are onaga (Etelis coruscans), ehu (E.
carbunculus), gindai (Pristipomoides zonatus), kalekale (P. sieboldii),
opakapaka (P. filamentosus), lehi (Aphareus rutilans), and hapu'upu'u
(Epinephelus quernus).
When the TAC is projected to be reached, NMFS will close the non-
commercial and commercial Deep 7 bottomfish fisheries until the end of
the fishing year (August 31, 2009). During a fishery closure for Deep 7
bottomfish, no person may fish for, possess, or sell any of these fish
in the MHI, except as otherwise authorized by law. Specifically,
fishing for, and the resultant possession or sale of, Deep 7 bottomfish
by vessels legally registered to Mau Zone, Ho omalu Zone, or Pacific
Remote Island Areas bottomfish fishing permits, and conducted in
compliance with all other laws and regulations, are not affected by the
closure. There is no prohibition on fishing for or selling other non-
Deep 7 bottomfish species throughout the year.
All other management measures continue to apply in the MHI
bottomfish fishery. The MHI bottomfish fishery reopened on November 15,
2008, and will continue until August 31, 2009, unless the fishery is
closed prior to August 31 as a result of the TAC being reached.
Additional background information on this final specification may
be found in the preamble to the proposed specification published on
December 10, 2008 (73 FR 75057), and is not repeated here.
Comments and Responses
On December 10, 2008, NMFS published a proposed specification and
request for public comments on the MHI bottomfish TAC (73 FR 75057).
The comment period ended on December 26, 2008. NMFS received public
comment regarding the proposed TAC, and responds as follows:
Comment 1: The proposed TAC specification's estimated 40 percent
risk of overfishing is unacceptably high and is inconsistent with the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and National Standard 1. Although the Magnuson-Stevens Act
states that a TAC cannot exceed the recommendation of the Council's
Scientific and Statistical Committee (SSC), it does not preclude NMFS
from selecting an ACL that is lower.
Response: Consistent with National Standard 3 of the Magnuson-
Stevens Act, bottomfish in the Hawaiian Archipelago are managed as a
unit throughout their range which includes both the MHI and the
Northwestern Hawaiian Islands (NWHI) portions of the archipelago. For
the purposes of National Standard 1 and status of stock determinations,
bottomfish stocks are assessed on an archipelagic-wide basis.
Currently, bottomfish stocks in the Hawaiian Archipelago are not
overfished and are not subject to overfishing. Establishment of a Deep
7 bottomfish TAC is a precautionary measure to prevent localized stock
depletion in the MHI Management Subarea. The updated stock assessment
conducted by the NMFS Pacific Islands Fisheries Science Center (PIFSC)
in 2008 indicates that the selection of a Deep 7 bottomfish TAC of
241,000 lb (109,316 kg) for the MHI Management Subarea in fishing year
2008-09 results in a zero percent risk of overfishing in the Hawaiian
Archipelago. In other words, a TAC of 241,000 lb (109,316 kg) provides
a 100 percent probability of preventing overfishing while at the same
time allowing for optimum yield to be produced from the fishery.
With respect to the MHI Management Subarea alone, the updated stock
assessment indicates that this TAC would have a 40 percent risk of
localized stock depletion (i.e., a 60 percent probability of preventing
localized stock depletion) in fishing year 2008-09, decreasing to a 25
percent risk of localized stock depletion (i.e., 75 percent probability
of preventing localized stock depletion) in fishing year 2009-10. The
TAC was specified at a level that balances the need to protect stocks
from archipelagic overfishing and localized stock depletion in the MHI,
with the need for fishermen to be able to achieve optimum yield from
the fishery. Therefore, the TAC of 241,000 lb (109,316 kg) offers a
reasonable assurance of preventing overfishing, is consistent with the
Magnuson-Stevens Act and National Standard 1, and forms the basis of
ongoing management of the fishery through future TACs.
Additionally, other conservation and management efforts have been
implemented by Federal and State of Hawaii authorities for the specific
purpose of protecting bottomfish stocks of the Hawaiian Archipelago.
The Papahanaumokuakea Marine National Monument (Monument) closed much
of the historical bottomfish grounds in the NWHI via a network of no-
take marine protected areas. Monument provisions also require that all
bottomfish fishing in the NWHI cease on June 15, 2011. Thus, bottomfish
fishing mortality in the NWHI will be reduced to zero. In addition, the
State manages 12 Bottomfish Restricted Fishing Areas in the MHI where
bottomfish fishing is prohibited. Together, these measures complement
the 2008-09 TAC of 241,000 lb (109,316 kg) for the MHI, and support the
long term sustainability of bottomfish stocks throughout the Hawaiian
Archipelago.
Comment 2: The Magnuson-Stevens Act stipulates that annual catch
limits and TACs should be set to prevent overfishing, but selecting a
TAC based on a 40 percent risk of overfishing virtually ensures that it
will occur frequently in this sector of the fishery. Although the
predicted risk of archipelagic overfishing in the model presented to
the Council is negligible, localized depletion is still a matter of
serious concern from a biological standpoint.
Response: The TAC specification for the MHI is a precautionary and
interim management measure implemented to prevent archipelagic
overfishing and localized stock depletion in the MHI, while allowing
for optimum yield to be achieved from the fishery on a continual basis.
This is distinct from the new provisions of the reauthorized Magnuson-
Stevens Act relating to establishment of annual catch limits (ACLs).
With few exceptions, National Standard 1 guidelines require FMPs to
establish ACL mechanisms and accountability measures (AMs) for all
stocks and stock complexes in the fishery. The Council is currently
developing alternative mechanisms to establish ACLs for all management
unit species, including bottomfish. NMFS continues to work with the
Council to develop ACLs and AMs for implementation through future
rulemaking.
The specified TAC is projected to have a 100-percent probability of
success in preventing archipelagic overfishing, and a 60-percent
probability of success in preventing localized stock depletion in the
MHI in 2008-09, increasing to a 75-percent probability of success in
preventing localized stock depletion in 2009-10. Real-time monitoring
of the bottomfish harvest enables NMFS and the State of Hawaii to
project when the TAC will be reached and, thus, close the non-
commercial and commercial bottomfish fisheries in Federal and State
waters, respectively, so that the TAC is not exceeded, further reducing
the risk of archipelagic overfishing and localized stock depletion in
the MHI.
Comment 3: A multispecies stock assessment, such as that used to
assess the Hawaii bottomfish fishery, can mask problems that exist for
individual species. Thus, management strategies should be precautionary
and
[[Page 7000]]
conservative. Also, a 40-percent risk of overfishing for the bottomfish
complex, as a whole, may represent an even higher level of risk for
fish species that are currently stressed, and particularly for a
species with relatively high market values, such as onaga.
Response: While multispecies stock assessments may potentially mask
problems that exist for individual species, data that are needed to
develop species-specific stock assessments are lacking at this time.
National Standard 3 requires management of stocks throughout their
range, and for interrelated stocks, management as a unit or in close
coordination. In addition, while National Standard 1 requires that MSY
should be estimated on a stock-by-stock basis whenever possible, it
does provide that in the case of mixed-stock fisheries, MSY can be
specified on one or more species as an indicator for the fishery as a
whole. NMFS has adopted this multispecies assessment approach for
Hawaiian bottomfish stocks, until such time data are sufficient to
assess individual species. NMFS will continue to work with the Council,
State of Hawaii, and other management partners to improve fishery
monitoring programs, and will continually reassess the status of
bottomfish stocks and may modify management measures, as needed.
Comment 4: Localized depletion and overfishing of bottomfish stocks
is also a matter of concern for the fishing community. Informing MHI
bottomfish fishermen that the lack of fish in the MHI is no longer a
management concern because there are plenty at distant atolls in the
NWHI does nothing to change the amount of fish available to them.
Response: The management measures and distance from population
centers provides protection for bottomfish in the NWHI, and the recent
archipelagic stock assessment indicates that bottomfish stocks are not
overfished or subject to overfishing. Nonetheless, the Council and NMFS
are concerned about the status of Deep 7 bottomfish stocks in the MHI.
The specified TAC and related management measures, including non-
commercial fishing permits, data collection program, and bag limits,
considered with the State of Hawaii's commercial data collection
program and Bottomfish Restricted Fishing Areas, are intended to better
monitor and protect bottomfish in the MHI, while providing adequate
opportunity for fishermen to achieve optimum yield.
Comment 5: The American Fisheries Society (AFS) has recommended
that fishing mortality for the snapper-grouper complex be maintained
``at or near natural mortality.'' Given the life-history
characteristics of bottomfish, and uncertainty about their fishing and
natural mortality, additional caution should be exercised with respect
to all policy decisions, including selection of an acceptable level of
risk of overfishing.
Response: The PIFSC 2008 bottomfish stock assessment incorporated
the best available biological information, and updated bottomfish catch
and effort data through 2007. The assessment applied a statistical log-
linear model to develop a spatially standardized CPUE series for the
MHI and estimate bottomfish biomass, catch, and relative biomass for
2008-10. The Council and NMFS considered and discussed the available
information, and the specification of a TAC of 241,000 lb (109,316 kg)
for the MHI was determined to be consistent with the Magnuson-Stevens
Act and National Standards.
Comment 6: NMFS has offered no specific guidance on acceptable
levels of risk, although the Magnuson-Stevens Act does specify that it
be ``low.'' Discussions at a stock assessment symposium at the 2007
meeting of the AFS suggested that an overall risk of overfishing of 10
percent would be prudent (considering scientific and management
uncertainty), and values up to 20 percent could be an acceptable upper
limit of risk.
Response: The TAC of 241,000 lb (109,316 kg) provides a 100 percent
probability of success in preventing archipelagic overfishing and, in
the MHI, a 60 percent probability of success in preventing local stock
depletion in fishing year 2008-09, increasing to a 75 percent
probability of success in preventing local stock depletion in the MHI
in fishing year in 2009-10. The Council and NMFS are required to
establish ACLs and AMs for all fisheries by 2011.
Comment 7: The Magnuson-Stevens Act states that proposed TACs
should incorporate both scientific and management uncertainty to reduce
the risk of overfishing. However, the current risk assessment
incorporates only scientific uncertainty, and does not consider
management uncertainty (e.g., underreported or incorrectly reported
fishing activity). As such, the analysis underestimates the overall
risk of overfishing. Additionally, multiple models recently presented
at the Council's Scientific and Statistical Committee (SSC) provided
divergent conclusions about the state of the present fishery and its
likely trajectory under various potential management frameworks.
Considering these factors, it is prudent to apply a cautious and
conservative management approach until these discrepancies can be
resolved.
Response: In addition to the scientific uncertainty considered in
the updated stock assessment, when recommending the 2008-09 TAC the
Council also considered the lag in fisheries data collection, and
considered the possibility that the actual catch would exceed the
specified TAC limit. This resulted in the Council recommending a TAC
that is less than the 254,000 lb (115,212 kg) TAC that was initially
recommended by the Council's SSC. NMFS will continue to monitor the
fisheries and update stock assessments, and may modify management
measures, if warranted.
Comment 8: At the 143rd Council meeting, the State of Hawaii
representative proposed a 2008-09 TAC of 178,000 lb (80,739 kg). This
TAC was suggested considering a prudent and low level of risk based on
the multispecies nature of the stock assessment, localized depletion of
bottomfish stocks and component species in the MHI, life history
characteristics of component species, and scientific and management
uncertainty. Of the proposed alternatives published in the proposed
rule, we note that this is the only TAC that fits within the prudent
levels of risk suggested by stock assessment scientists at the AFS
meeting.
Response: See responses to comments above. The Council and NMFS
specified a TAC of 178,000 lb (80,739 kg) for the 2007-08 fishing year.
Considering that the Deep 7 bottomfish fisheries were closed for nearly
seven months (from April 16, 2008, to November 15, 2008), and to
balance the need to prevent archipelagic overfishing and localized
stock depletion with the need to achieve optimum yield, the specified
TAC for 2008-09 is higher. The Council and NMFS will consider all
information when assessing bottomfish stocks and specifying future
TACs, including AFS recommendations.
Classification
The Regional Administrator, NMFS PIR, determined that this final
specification is necessary for the conservation and management of the
MHI bottomfish fishery and that it is consistent with the Magnuson-
Stevens Act and other applicable laws.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant issues raised by the public comments in
response to the IRFA and NMFS responses to those comments, and a
summary of the
[[Page 7001]]
analyses completed to support the action. The analysis follows:
NMFS prepared this FRFA for the 2008-09 MHI bottomfish TAC
pursuant to section 604 of the Regulatory Flexibility Act. This FRFA
incorporates the IRFA, which appeared in its entirety in the
Classification section of the proposed rule (73 FR 75057; December
10, 2008) and is not repeated in its entirety here.
The need for, and objectives of, the action are provided in the
preambles to the proposed and final specifications. This action does
not duplicate, overlap, or conflict with any other Federal rules.
There are no reporting, recordkeeping, or other compliance
requirements in the final specification. This action is taken under
authority of the Magnuson-Stevens Act and implementing regulations
at 50 CFR Sec. 665.72. No comments were received on the IRFA.
The Small Business Administration defines a commercial fishing
business as a small entity if annual gross receipts are less than
$4.0 million. All bottomfish vessels impacted by this specification
are considered to be small entities under this definition. There are
approximately 380 vessels engaged in the commercial harvest of MHI
bottomfish. The majority of the 380 vessels comprising the affected
universe are under 30 ft (9.1 m) in length overall. There are no
disproportionate economic impacts from this specification based on
home port, gear type, or relative vessel size.
Minimizing Economic Impacts on Small Entities
This rule would not have an adverse economic impact to small
entities because the 2008-09 TAC of 241,000 lb (109,316 kg), if
taken, would produce $3,266 in average per-vessel revenue, as
compared to $2,412 in average per-vessel revenue realized for the
2007-08 fishery.
NMFS considered two alternative TACs that were larger than the
one specified, including 249,000 lb (112,944 kg) yielding a
potential $3,375 in average per-vessel revenue, and 271,000 lb
(122,923 kg)yielding a potential $3,673 in average per-vessel
revenue. Although both of these alternatives could generate larger
average revenues than the selected alternative, their specification
could also result in localized depletion of MHI bottomfish, which is
inconsistent with National Standard 1 of the Magnuson-Stevens Act.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement
Fairness Act of 1996 states that for each rule or group of related
rules for which an agency is required to prepare a FRFA, the agency
shall publish one or more guides to assist small entities in
complying with the rule, and shall designate such publications as
``small entity compliance guides.'' As part of this rulemaking
process, a small entity compliance guide was prepared. Copies of the
small entity compliance guide are available from the Regional
Administrator (see ADDRESSES) and are also available at
www.fpir.noaa.gov/SFD/SFD_regs_2.html.
This action is exempt from the procedures of E.O. 12866 because
this action contains no implementing regulations.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 9, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E9-3049 Filed 2-11-09; 8:45 am]
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