[Federal Register Volume 87, Number 13 (Thursday, January 20, 2022)]
[Rules and Regulations]
[Pages 3045-3048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00995]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 220113-0014]
RIN 0648- BK72


Pacific Island Fisheries; Annual Catch Limit and Accountability 
Measures; Main Hawaiian Islands Deep 7 Bottomfish for Fishing Years 
2021-2024

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this final rule, NMFS implements an annual catch limit 
(ACL) of 492,000 lb (223,167 kg) for Deep 7 bottomfish in the main 
Hawaiian Islands (MHI) for each of the three fishing years 2021-22, 
2022-23, and 2023-24. As an in-season accountability measure (AM), if 
NMFS projects that the

[[Page 3046]]

fishery will reach the ACL in any given fishing year, we would close 
the commercial and non-commercial fisheries in Federal waters for the 
remainder of the fishing year. As a post-season AM, if NMFS determines 
that the catch exceeded the ACL in a fishing year, we would reduce the 
ACL for the following fishing year by the amount of the overage. This 
rule supports the long-term sustainability of Deep 7 bottomfish.

DATES: The final rule is effective February 22, 2022.

ADDRESSES: Copies of the Fishery Ecosystem Plan for the Hawaii 
Archipelago (FEP) 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.
    Copies of the environmental analyses and other supporting documents 
for this action are available from https://www.regulations.gov/docket/NOAA-NMFS-2021-0077, or from Michael D. Tosatto, Regional 
Administrator, NMFS Pacific Islands Regional Office (PIRO), 1845 Wasp 
Blvd., Bldg. 176, Honolulu, HI 96818.

FOR FURTHER INFORMATION CONTACT: Brett Schumacher, NMFS PIRO 
Sustainable Fisheries, 808-725-5185.

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the Deep 7 
bottomfish fishery in Federal waters around Hawaii under the FEP, as 
authorized by the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). The Deep 7 bottomfish are lehi (Aphareus 
rutilans), ehu (Etelis carbunculus), onaga (E. coruscans), opakapaka 
(Pristipomoides filamentosus), kalekale (P. sieboldii), gindai (P. 
zonatus), and hapuupuu (Hyporthodus quernus). The FEP contains a 
process for the Council and NMFS to specify ACLs and AMs; that process 
is codified at 50 CFR 665.4 and requires NMFS to specify an ACL for MHI 
Deep 7 bottomfish each fishing year, based on a recommendation from the 
Council.
    The Council recommended that NMFS implement the ACL of 492,000 lb 
(223,167 kg) and AMs for MHI Deep 7 bottomfish in fishing years 2021-
22, 2022-23, and 2023-24. Each fishing year begins on September 1 and 
ends on August 31 of the following year. As an in-season AM, if NMFS 
projects that the fishery will reach the ACL, we would close commercial 
and non-commercial fishing for MHI Deep 7 bottomfish in Federal waters 
for the remainder of the fishing year. As a post-season AM, in the 
event that NMFS determines that the final MHI Deep 7 bottomfish catch 
exceeds the ACL in any given year, NMFS would reduce the ACL for the 
subsequent fishing year by the amount of the overage with a subsequent 
rulemaking. The Council recommended the ACL and AMs based on an updated 
2021 bottomfish stock assessment, and in consideration of the risk of 
overfishing, past fishery performance, and the acceptable biological 
catch recommendation from its Scientific and Statistical Committee, 
with opportunity for input from the public.
    You may find additional background information on this action in 
the preamble to the proposed rule published on November 1, 2021 (86 FR 
60194).

Comments and Response

    On November 1, 2021, NMFS published a proposed rule, Supplemental 
Environmental Assessment (SEA), and Regulatory Impact Review for public 
comment (86 FR 60194). The comment period ended November 16, 2021. NMFS 
received comments from 26 sources, primarily from students from a 
policy class, and the interested public. NMFS did not receive any 
comments from fishermen, fishery management agencies, or non-
governmental organizations. We summarized the comments that relate 
directly to this action, and respond below.
    Comment 1: This regulation is necessary and important for 
preventing overfishing in Hawaii and for protecting fish populations. 
With effective quotas and AMs, we will be able to protect our fish and 
continue to harvest them sustainably.
    Response: NMFS agrees and will continue to regulate Federal 
fisheries to ensure they are sustainable, consistent with the Magnuson-
Stevens Act, the FEP and implementing regulations.
    Comment 2: NMFS should provide additional clarity on the purpose of 
this action because it mentions that it probably will not affect 
fishing behavior, and only extends for a few years into the future.
    Response: The Magnuson-Stevens Act requires NMFS to implement ACLs 
for all federally managed fisheries with certain exceptions not 
applicable here. This rule implements ACLs for three years because that 
timeframe is consistent with available scientific information and 
management goals of the Council. It provides a science-based upper 
limit for what can be caught sustainably, does not unnecessarily burden 
a healthy and productive fishery with regulatory constraints, and is 
consistent with regulatory requirements to set an ACL for federally-
managed fisheries.
    Comment 3: The assumption that catch will be identical over three 
years may be flawed, so NMFS should reassess the quota each year based 
on new stock assessments and adjust the quota if the new assessment 
indicates the need.
    Response: The assumption that catch does not change annually is 
used as a basis for determining the acceptable risk of overfishing 
within the timeframe of catch projections from the most recent stock 
assessment. This provides an upper limit of the expected annual catch, 
and the in-season AM ensures that overfishing will not occur. It is 
unnecessary to conduct a new stock assessment and change the ACL each 
year because the post-season AM allows NMFS to decrease the ACL for the 
following fishing year to prevent effects on the stock, if needed.
    Comment 4: The bottomfish catch fell from an average of 274,000 lb 
(124,284 kg) in 2014-15, 2015-16, and 2016-17 to 161,437 lb (73,227 kg) 
in 2019-20, so the population must be decreasing.
    Response: Total catch does not correlate to the size of the 
population. Total catch is driven by several factors (such as market 
demand, which dropped sharply in 2020 during the coronavirus pandemic). 
The key metric used in stock assessments to evaluate relative 
population size is ``catch per unit effort,'' which has been stable or 
increasing in recent years; this underscores that the stock is healthy 
and the fishery is sustainable.
    Comment 5: Population sampling methodologies are flawed because the 
effect they are having on the overall environment goes unacknowledged, 
so the stock assessment is not accurate.
    Response: This action is based on a 2021 updated stock assessment 
that included both fishery dependent data from commercial reports, and 
fishery independent data from scientific surveys. The assessment was 
reviewed by an independent panel of experts in fishery stock 
assessments and by the Council's Scientific and Statistical Committee. 
These reviews and our own internal review determined that the stock 
assessment provides the best available scientific information for 
management, and demonstrates the stock is not overfished or 
experiencing overfishing. The 2019 Environmental Assessment (EA) and 
2021 SEA provide comprehensive analyses of the action's potential 
environmental effects, which NMFS determined would not be significant.
    Comment 6: Fishermen may not report their catch accurately if the

[[Page 3047]]

fishery approaches the catch limit, so there should be measures in 
place to make sure that data are reported accurately and ensure that 
catch does not pass the quota.
    Response: While an impending catch limit could present a 
disincentive to report accurately, we work with our management partners 
at the Council and the State of Hawaii to educate fisherman about the 
importance of timely and accurate reporting. In past years when catch 
limits were lower, the fishery did reach the catch limits and NMFS 
closed the fishery using the same reporting and monitoring mechanisms, 
which indicates that underreporting is not a significant problem. The 
State of Hawaii also collects catch data from commercial fishermen and 
from vendors who buy and sell the fish. These programs allow for cross-
verification of catch reports, if necessary, to ensure that management 
is based on consistent, timely, and accurate information.
    Comment 7: NMFS should conduct an independent review to account for 
underreporting and adjust the ACL accordingly.
    Response: We addressed this issue in a 2011 evaluation of 
unreported catch in the fishery. The information was included in the 
2021 stock assessment to account for the effects of total fishery 
removals on the stock complex, and catch projections for the ACL are 
scaled based on reported catch.
    Comment 8: NMFS should consider creating different ACLs for small 
or local fisheries versus commercial fisheries to promote equity.
    Response: Catches in the fishery have been considerably less than 
the ACL, so the regulations do not create access, equity, or allocation 
issues. ACLs for multiple sectors are not necessary because this 
fishery does not have distinct small, local, or large, non-local 
commercial sectors. All participants are small boat fishermen and are 
considered small operations from an economic standpoint.
    Comment 9: Accounting for cultural, nutritional, and economic 
importance of Deep 7 bottomfish to indigenous Hawaiians is important 
because they are a marginalized population within Hawaii.
    Response: NMFS and the Council address these concerns during the 
development of the ACL recommendation and the analysis in the EA and 
SEA. Social and cultural impacts are discussed and evaluated during the 
``Social, Economic, Ecological, and Management'' analysis used to 
develop the ACL. Effects on fishing-dependent communities are further 
analyzed in the EA and SEA, and NMFS also considers effects on Native 
Hawaiian and other underserved communities pursuant to Executive Order 
12898 on Environmental Justice. These analyses show that this 
management action will not limit fishing opportunities for Native 
Hawaiians, minorities, or low-income populations, or otherwise have 
adverse effects.
    Comment 10: NMFS should provide exceptions to the ACL for the 
native groups that have sustainably caught and used these fish for 
generations.
    Response: Because the ACL is not restricting access to the fishery 
by any user group, the Council has not identified a need to allocate a 
portion of the ACL to any sector, including indigenous fishery 
participants.
    Comment 11: NMFS should provide data that show what proportion 
these fish contribute to an individual's total annual income.
    Response: NMFS included additional available information in the 
final SEA. There is a relatively small proportion of ``highliners,'' 
about 10 percent of the commercial fisherman who catch over 1,000 lb 
(454 kg) of bottomfish per year. Within this group, participants earn 
approximately 30 percent of their personal income from bottomfish 
fishing, on average. Most other commercial fishermen report that they 
earn ``very little'' personal income from bottomfish.
    Comment 12: The action seems overly focused on economic prosperity 
rather than the long-term sustainability of the ecosystem.
    Response: The foundation of the ACL designation process is stock 
sustainability. NMFS first conducts a stock assessment to evaluate if 
the stock is being fished sustainably, and the overfishing risk across 
a range of catch levels. We then evaluate several sustainable catch 
levels for ecosystem effects (e.g., on target and non-target stocks, 
endangered species and marine mammals, habitat), and effects on the 
human community (e.g., economic, social, cultural effects). Economic 
factors are one of several important considerations, but our analyses 
address a comprehensive suite of concerns and perspectives.

Changes From the Proposed Rule

    This final rule contains a minor housekeeping correction to the 
proposed rule. In the proposed rule published November 1, 2021 (86 FR 
60194), we intended to insert a new provision at 50 CFR 665.211(e) and 
change the current 665.211(e) to 665.211(f). The current 665.211(e) 
addresses bottomfish fishing in areas outside the MHI. The new 
665.211(e) addresses overage adjustments in the MHI Deep 7 bottomfish 
fishery. The amendatory instructions to change the CFR in the proposed 
rule would have added the new 665.211(e), but inadvertently omitted the 
new 665.211(f), and the language in this final rule corrects this. The 
technical change has no material effect on management of the MHI Deep 7 
bottomfish fishery.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the FEP, other provisions of the Magnuson-Stevens Act, 
and other applicable law.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. NMFS received no comments 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 665

    Accountability measures, Annual catch limits, Bottomfish, Fishing, 
Hawaii, Pacific Islands.

    Dated: January 13, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
665 as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for 50 CFR part 665 continues to read as 
follows:

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


0
2. In Sec.  665.211, revise paragraphs (a) and (e), and add paragraph 
(f) to read as follows:


Sec.  665.211  Annual Catch Limit (ACL).

    (a) In accordance with Sec.  665.4, the ACLs for MHI bottomfish 
fisheries for each fishing year are as follows:

[[Page 3048]]



----------------------------------------------------------------------------------------------------------------
                                                                    2021-22 ACL     2022-23 ACL     2023-24 ACL
                             Fishery                                   (lb)            (lb)            (lb)
----------------------------------------------------------------------------------------------------------------
Deep 7 bottomfish...............................................         492,000         492,000         492,000
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                             Fishery                               2019 ACL (lb)   2020 ACL (lb)   2021 ACL (lb)
----------------------------------------------------------------------------------------------------------------
Uku.............................................................         127,205         127,205         127,205
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) If landings of MHI Deep 7 bottomfish exceed the specified ACL 
in a fishing year, the Regional Administrator will reduce the ACL for 
the subsequent year by the amount of the overage in a separate 
rulemaking.
    (f) Fishing for, and the resultant possession or sale of, any 
bottomfish MUS 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.

[FR Doc. 2022-00995 Filed 1-19-22; 8:45 am]
BILLING CODE 3510-22-P