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, 

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. W. Long. 

M1 ......................... 43°58.0′ 67°22.0′ 

M2 ......................... 43°50.0′ 68°35.0′ 

M3 ......................... 43°30.0′ 69°40.0′ 

M4 ......................... 43°20.0′ 70°00.0′ 

M5 ......................... 42°45.0′ 70°10.0′ 

M6 ......................... 42°13.0′ 69°55.0′ 

M7 ......................... 41°00.0′ 69°00.0′ 

M8 ......................... 41°45.0′ 68°15.0′ 

M9 ......................... 42°10.0′ 67°10.0′ 

M10 ....................... 41°18.6′ 66°24.8′ 

M11 ....................... 40°55.5′ 66°38.0′ 

M12 ....................... 40°45.5′ 68°00.0′ 

M13 ....................... 40°37.0′ 68°00.0′ 

M14 ....................... 40°30.0′ 69°00.0′ 

M15 ....................... 40°22.7′ 69°00.0′ 

M16 ....................... 40°18.7′ 69°40.0′ 

M17 ....................... 40°21.0′ 71°03.0′ 

M18 ....................... 39°41.0′ 72°32.0′ 

M19 ....................... 38°47.0′ 73°11.0′ 

M20 ....................... 38°04.0′ 74°06.0′ 

M21 ....................... 37°08.0′ 74°46.0′ 

M22 ....................... 36°00.0′ 74°52.0′ 

M23 ....................... 35°45.0′ 74°53.0′ 

M24 ....................... 35°28.0′ 74°52.0′ 

* * * * * 

■ 5. Section 648.25 is added to read as 

follows: 

§ 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 

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 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 


ebenthall on PRODPC61 with RULES
Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Rules and Regulations 18451 

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. 

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 § 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. 

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 

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 

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 

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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18452 Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Rules and Regulations 

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 

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 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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Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Rules and Regulations 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 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. 

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 

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 

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. 

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 

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 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 

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. 

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: 

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 

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-ofinformation 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 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: 

PART 665—FISHERIES IN THE 

WESTERN PACIFIC 

■ l. The authority citation for part 665 

continues to read as follows: 

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

■ 2. In subpart A, add a new § 665.4 to 

read as follows: 

§ 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. 

■ 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. 

* * * * * 

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 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. 

* * * * * 

■ 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 

(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. 

* * * * * 

■ 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. 

* * * * * 

■ 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] 

■ 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 

not subject to the requirements of the 

section. 

* * * * * 

■ 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. 

■ 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 

Silver jaw jobfish Lehi Aphareus rutilans 

Squirrelfish snapper Ehu Etelis carbunculus 

Longtail snapper Onaga Etelis coruscans 

Pink snapper Opakapaka Pristipomoides filamentosus 

Snapper Kalekale Pristipomoides sieboldii 

Snapper Gindai Pristipomoides zonatus 

Sea bass Hapu’upu’u Epinephelus quernus 

■ 10. In subpart E, add a new § 665.72 

to read as follows: 

§ 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 

the best available scientific, commercial, 

and other information, and taking into 

account the associated risk of 

overfishing. 


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(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 

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). 

■ 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. 

■ 12. In subpart E, add a new § 665.74 

to read as follows: 

§ 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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