Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35145

Service, 501 W. Ocean Blvd., Suite

4200, Long Beach, CA 90802–4132.

Information relevant to this notice has

been compiled in aggregate form and is

available for public review during

business hours at the Southwest

Regional Office, and at the Northwest

Regional Office, National Marine

Fisheries Service, 7600 Sand Point Way

NE., BIN C15700–Bldg. 1, Seattle, WA

98115–0070.

FOR FURTHER INFORMATION CONTACT:

Rodney R. McInnis or Daniel Viele,

310–980–4030.

SUPPLEMENTARY INFORMATION:

Sacramento River winter chinook was

listed under the Endangered Species Act

(ESA) in 1989. In response to continuing

and dangerously low abundance of

winter chinook, NMFS issued a March

8, 1996, biological opinion (revised

April 5, 1996) which required that

ocean fishery impacts on winter

chinook be reduced to the extent that

winter chinook spawning escapement

would be increased by 35 percent

compared to current levels. The 1996

ocean salmon management measures (61

FR 20175, May 6, 1996) recommended

by the Pacific Fishery Management

Council (Council) and approved and

implemented by NMFS meet the

requirements of the biological opinion

through a combination of season

reductions and increased minimum size

limits.

The State of California acted in late

April to conform its commercial and

recreational fishing regulations to the

Council’s recommended management

measures. On May 1, 1996, the

Commission, which regulates the

recreational salmon fishery within state

waters, announced its intent to consider

delaying implementation of the July 2

increase in the minimum size limit

south of Point Arena for recreationally

caught chinook until August 26.

The Council considered the

Commission’s proposed action at its

June 18–19 meeting in Seattle, WA.

NMFS informed the Council that any

state actions resulting in an increase in

winter chinook impacts would trigger

inseason action by NMFS to ensure the

requirements of the biological opinion

would continue to be met. NMFS urged

the Council to recommend adjustments

to the fishing seasons in the EEZ, which

would result in ocean salmon fisheries

operating within the constraints of the

biological opinion, should the

Commission delay implementation of

the July 2 minimum size limit increase.

Despite advice from its Salmon

Technical Team (STT) that the decrease

in winter chinook spawning escapement

resulting from the proposed delay

would not meet ESA requirements, the

Council, at its June 18–19 meeting,

recommended that NMFS delay the

minimum size limit increase in Federal

waters as well. The Council further

advised NMFS to constrain any Federal

regulatory adjustments stemming from

the Commission’s actions to the

California recreational fishery.

On June 21, the Commission

approved a July 15, 1996, date for the

increase in the minimum size limit for

chinook in the recreational salmon

fishery south of Point Arena. A

preliminary analysis by the STT

indicates that the difference between the

winter chinook spawning escapement

increase expected under the NMFS

approved and implemented

management measures and the

Commission’s delay to July 15 would be

0.7 percent. Although small, this

difference results in winter chinook

impacts that do not meet the

requirement of the biological opinion to

increase winter chinook spawning

escapement by 35 percent.

NMFS has taken this inseason action

to close the recreational fishery in the

EEZ during the same time period that

the Commission has delayed the

increase in the minimum size limit in

state waters. Differing size limits in

Federal and state waters are considered

to be unenforceable. Analysis of how to

compensate in the EEZ for the 2-week

delay is made difficult by the lack of

data partitioning recreational effort

between the EEZ and state waters, and

an inability to predict the portion of the

recreational effort normally occurring in

the EEZ that will shift to state waters as

a result of an EEZ closure. Data for the

commercial troll fishery off California in

1983 and 1984 indicate 67 percent of

the catch occurred in the EEZ. However,

there is no reason to assume a similar

distribution of the recreational effort.

Officials at the California Department of

Fish and Game estimate that perhaps 70

percent of the recreational effort in July

may occur inside state waters. If it is

assumed that 30 percent of the

recreational fishing effort occurs in the

EEZ and that no effort shift will result

from an EEZ closure, a 2-week closure

of the EEZ to recreational fishing in July

would approximately compensate for

the winter chinook impacts caused by

the 2-week delay in the minimum size

limit in state waters, according to the

Winter Chinook Ocean Harvest Model.

Based on that analysis, NMFS expects

that with this 2-week closure the ocean

fisheries will continue to meet the

requirements of the biological opinion.

If, however, further analysis by the STT

should indicate that additional

adjustments are required, NMFS will

consider further closures to salmon

fisheries in the EEZ.

The Regional Director consulted with

representatives of the Council and the

California Department of Fish and

Game. Because of the need for

immediate action, NMFS has

determined that good cause exists for

this notice to be issued without

affording a prior opportunity for public

comment. This notice does not apply to

other fisheries that may be operating in

other areas.

Classification

This action is authorized by 50 CFR

660.409 and 660.411 and is exempt from

review under E.O. 12866.

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

Dated: June 28, 1996.

Richard W. Surdi,

Acting Director, Office of Fisheries

Conservation and Management, National

Marine Fisheries Service.

[FR Doc. 96–17010 Filed 6–28–96; 4:20 pm]

BILLING CODE 3510–22–F

50 CFR Part 681 and 15 CFR Part 902

[Docket No. 960401094–6183–02; I.D.

022296D]

RIN 0648–AI32

Western Pacific Crustacean Fisheries;

Amendment 9; OMB Control Numbers

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues a final rule to

implement Amendment 9 to the Fishery

Management Plan for the Crustacean

Fisheries of the Western Pacific Region

(FMP). This rule establishes a new

annual harvest limitation program for

the Northwestern Hawaiian Islands

(NWHI) lobster fishery based on the

status of stocks and an explicit level of

risk of overfishing. This eliminates

operational problems with the current

quota system. Current prohibitions on

retaining juvenile lobsters and berried

lobsters are eliminated. The rule

establishes framework procedures to

implement regulatory changes if needed

in the future. This rule also announces

the harvest guideline for the 1996

fishing season. The rule is intended to

maintain the productivity of the stocks

while providing a reasonable

opportunity for permit holders to

participate in the fishery and to

maintain their markets. The changes

also improve the administration of the
35146 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

management program and enforcement

efforts.

EFFECTIVE DATES: June 28, 1996, except

new § 681.12 which is effective on

August 5, 1996.

ADDRESSES: Copies of Amendment 9

and the associated environmental

assessment may be obtained from Kitty

M. Simonds, Executive Director,

Western Pacific Fishery Management

Council (Council), 1164 Bishop St.,

Suite 1405, Honolulu, HI 96813.

A copy of the Biological Opinion (BO)

associated with this rule and the Final

Regulatory Flexibility Analysis (FRFA)

may be obtained from Hilda DiazSoltero, Director, Southwest Region,

NMFS (Regional Director), 501 West

Ocean Boulevard, Suite 4200, Long

Beach, CA 90802.

Send comments on the modifications

to approved collection-of-information

requirements to the Regional Director

and to the Office of Information and

Regulatory Affairs, Office of

Management and Budget, Attn:

Paperwork Reduction Project 0648–0204

and 0648–0214, Washington, D.C.

20503.

FOR FURTHER INFORMATION CONTACT:

Kitty M. Simonds at (808) 522–8220;

Svein Fougner at (310) 980–4034; or

Alvin Z. Katekaru at (808) 973–2985.

SUPPLEMENTARY INFORMATION: The FMP

was approved in 1983 and governs

fishing for spiny and slipper lobsters in

the NWHI. The history of the

development of the FMP and

Amendment 9 is summarized in the

proposed rule (61 FR 15452, April 8,

1996) and will not be repeated here.

Amendment 9 includes the following

measures, which are explained in more

detail in the proposed rule published on

April 8, 1996:

1. Establish an annual harvest

guideline based on a constant harvest

rate and a specific level of risk of

overfishing. Under the constant harvest

rate policy, the harvest guideline, which

is expressed in terms of the total

number of lobsters (spiny and slipper

combined), is proportional to the

estimated exploitable population size.

2. Allow the retention of egg-bearing

(‘‘berried’’) lobsters and eliminate size

limits. The FMP and implementing

regulations currently prohibit fishers

from retaining berried lobsters or

lobsters with a tail width of less than 50

mm for spiny lobsters and 56 mm for

slipper lobsters.

3. Eliminate the in-season quota

adjustment. The in-season quota

adjustment has proven to be

unworkable, given the extreme

sensitivity of the quota formula to

changes in catch-per-unit-of-effort

(CPUE). A harvest guideline will be set

once annually and will not be adjusted

during the year.

4. Authorize the Regional Director to

close the fishery by direct notice to

fishermen. The Council concluded that

the fishery is sufficiently small (there

are only 15 persons with limited entry

permits) that direct notice to permit

holders by telephone or radio is feasible

and provides the most effective means

of ensuring timely closure of the fishery

with minimal likelihood of premature or

late closure.

5. Establish broad framework

procedures for future regulatory

changes. The FMP currently has

framework procedures dealing with

protected species conservation, and the

annual harvest quota is set under a

specific framework (i.e., formula).

Amendment 9 authorizes measures

affecting the operation of the fisheries,

gear, harvest guidelines, or changes in

catch and/or effort, and provides a

mechanism to respond to new

information quickly.

6. Conduct a 5-year review of the new

program. The Council is aware that the

proposed new management approach of

Amendment 9 is an innovative

approach to crustacean fishery

management and that it warrants a

complete review of its effectiveness.

This analysis is in addition to the

annual review of the fishery.

This rule eliminates the requirement

that fishers notify NMFS in advance of

plans to embark on each fishing trip so

that NMFS may place observers on the

fishing vessel. Although the single

vessel fishing in 1994 under an

Experimental Fishing Permit carried a

NMFS observer, NMFS does not

anticipate sending observers on lobster

trips on a regular basis. Therefore,

NMFS removes the requirement to

report each trip in advance. This action

accords with President Clinton’s

directive that agencies reduce public

reporting requirements.

In compliance with the new

procedures of Amendment 9, a harvest

guideline of 186,000 lobsters for the

NWHI crustacean fishery is announced

for the 1996 fishing season, which

begins July 1, 1996. This harvest

guideline supersedes the initial quota

published on February 21, 1996 (61 FR

6577), and is the final landings limit for

the 1996 fishing season. The harvest

guideline is computed by using a

harvest rate associated with a 10 percent

risk of overfishing applied to the

estimate of the exploitable population.

For 1996, the exploitable population is

1,432,586 lobsters.

Comments

Comments were received from the

State of Hawaii Department of Land and

Natural Resources, the Marine Mammal

Commission (MMC), the U.S. Fish and

Wildlife Service (USFWS), and the

Small Business Administration (SBA).

Similar comments have been combined.

Comment: Some comments suggested

that NMFS was reopening or resuming

the NWHI lobster fishery, implying that

the fishery is now closed.

Response: The lobster fishery has

been closed only when there was no

announced quota or after available

quota has been taken. Commercial

fishing is allowed under the current

system when there are lobsters to be

harvested according to the formula

contained in the FMP. Without

Amendment 9, the fishery would open

on July 1, 1996, under a quota system.

Comment: The regulations should

require the retention of all small and

berried female lobsters. Giving the

fishermen no choice would minimize

highgrading and would provide more

sound information in the sales reports.

Response: This measure was not

included by the Council in Amendment

9, so it cannot be implemented at this

time. However, NMFS does not expect

highgrading to occur because

competition for the total number of

lobsters set by the harvest guideline will

encourage fishermen to keep all

lobsters, but NMFS will provide the

Council with catch, effort, and sales

data to evaluate whether this

expectation is realized. The Council has

agreed to consider requiring retention if

the first year of data demonstrates a

need and provides a sound basis for

such action.

Comment: A vessel monitoring system

(VMS) should be required on each

vessel. Such a system would monitor

vessel traffic and determine if there

were illegal entry to the Hawaiian

Islands National Wildlife Refuge

(HINWR).

Response: This measure was not

included by the Council in Amendment

9, so it cannot be implemented at this

time. The Council did not propose the

use of VMS because VMS has not been

justified to the satisfaction of the

Council as being needed in the lobster

fishery. The Council has agreed,

however, to review the measure in the

future within the framework procedures

of the amendment.

Comment: Amendment 9 is deficient

in its description of the HINWR. It is the

USFWS position that the boundaries of

the HINWR extend to the 20 fathom

isobath around Necker Island and to the

10 fathom isobath around the other
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35147

islands of the refuge; and that permits

are required for access to the HINWR.

The Amendment could lead to the

impression that, in the absence of the

FMP, fishing would be allowed in the

HINWR.

Response: The legal basis for this

assertion of jurisdiction over offshore

waters was not provided. The original

Executive Order designating the HINWR

does not indicate that offshore waters

are included in the HINWR. The

original FMP provides a more complete

discussion of management agencies and

their authorities in the NWHI, and there

is no new information concerning

USFWS authority or jurisdiction. The

USFWS has been asked to provide to the

Council more information concerning

HINWR jurisdiction and controls for use

in future planning efforts. The original

FMP clearly explains that fishing in

waters in the HINWR or in state waters

is not controlled under the FMP;

nothing in Amendment 9 changes that

position.

Comment: An area-wide harvest

guideline means that specific areas in

the Hawaiian Islands chain could be

severely depleted of lobster, possibly

adversely affecting monk seals.

Response: Due to the lack of scientific

data and enforcement resources, bankby-bank management is not possible at

this time. The stock assessment model

is conservative, however, and guards

against excessive harvests. Historically,

most of the harvest has occurred at a

small number of locations, and this is

likely to continue unless productivity of

the lobster stocks returns to the levels of

the late 1970’s and 1980’s. The Council

has agreed to evaluate the use of VMS,

which could be useful in reporting the

catch at sea. Such a system may be able

to provide a basis for area specific

management in the future.

Comment: Area specific spawning

potential ratios (SPR) should be

evaluated and used to restrict fishing in

areas where it is important to maintain

healthy lobster populations.

Response: As stated above, this is not

possible at this time. If area-specific

management becomes a reality,

determining the SPR for individual

areas would be a factor to be considered.

Comment: The conclusion that the

proposed fishery will not affect

Hawaiian monk seals is not supported

by the information in Amendment 9 and

the biological assessment. The

Amendment should include a full

discussion of the potential impacts,

such as increasing entrapment hazards

and decreasing food availability. Also,

Amendment 9 does not address the

status of monk seals at French Frigate

Shoals (FFS), where the seal population

is undergoing a severe decline due to

starvation. If lobster and octopus are

relatively important components of

monk seal diets, the proposed lobster

fishery could impact monk seals. The

MMC recommends closing FFS to

lobster fishing until the importance of

lobster and octopus in the diets of monk

seals is known. Amendment 9 should be

disapproved and no fishing allowed

until an adequate BO is completed.

Response: There are three records of

direct interaction between monk seals

and the lobster fishery. One occurred

early in the fishery when a seal became

entangled in a trap bridle and drowned.

The second occurred in 1994, when a

fisherman reported that a monk seal

approached the vessel and fed on

released lobster. In the third, a seal was

observed attempting to move a lost trap,

presumably in search of food

underneath the trap. No reports have

been received of dead or live monk seals

with scars or injuries that suggest

interaction with lobster fishing gear. No

interactions have occurred on research

cruises. With reduced effort in the

fishery, the potential for direct

entrapment or harm has greatly

declined. There is no information on the

number of lost lobster traps and the

likelihood that a lost trap would harm

a seal, but the maximum allowable size

of the trap openings was set with the

objective of protecting monk seals.

There may be indirect effects on monk

seals from the lobster fishery, especially

for the population at FFS, where overall

prey availability appears to be low.

However, NMFS has concluded that

there is insufficient information to

support closing waters around FFS at

this time. The NMFS Honolulu

Laboratory is conducting research on

foraging and feeding behavior, as well as

on the diet of monk seals through the

use of remote video cameras attached to

seals and by analyzing seal scats and

spewings. Eventually, a better

understanding of the relationship

between monk seals and their food

sources will be available. Amendment 9

recognizes a potential for impacts, but

NMFS agreed with the Council’s view

that there is no basis to determine that

impacts are likely. On May 24, 1996, the

NMFS Office of Protected Resources

issued a BO, under the Endangered

Species Act, that concluded that the

fishery, as it would be conducted under

Amendment 9 and these implementing

regulations, is not likely to jeopardize

the continued existence of any listed

species. The May 24, 1996, BO will be

provided to the Council for use in future

planning and management decisions.

Comment: The frameworking

procedures may not be quick enough to

respond effectively to rapidly occurring

changes in the proposed fishery,

including the implementation of

measures to protect monk seals. The

procedures should be streamlined to

provide for quick action.

Response: Actions cannot be taken

until effects of the actions are

thoroughly analyzed. The new

framework procedures will provide for

a proper review, and actions can be

taken without amending the plan,

which is a much more lengthy process.

The ability of the Regional Director to

close the fishery by direct notice to

fishermen is one of the benefits of the

Amendment. Also, the Magnuson Act

authorizes NMFS, on behalf of the

Secretary, to take emergency action if

necessary. Existing regulations in 50

CFR §§ 681.27 and 681.28 also provide

authority for NMFS to issue quickly a

short-term regulation (10 days to 6

months), specifically in the event of a

monk seal mortality that appears related

to the fishery.

Comment: Eliminating size limits

introduces a strong incentive for

highgrading and underreporting, which

is to be detected by untested and

unconvincing methods.

Response: NMFS expects highgrading

to be minimal. The following year’s

harvest guideline will be adjusted for

any identified highgrading following

review of landings data through the

monitoring system. The relationship

between lobster size and price depends

on the market, which varies from year

to year. There is a market for all lobster,

so a fisherman would have to decide

whether the vessel’s economic return

would be sufficiently greater if some

lobster were discarded in order to retain

others. Competition for the available

quota puts pressure on fishermen to

catch as many lobsters as possible and

return to port before the harvest

guideline is reached. Highgrading is

more likely to occur when fishing

begins, and becomes less likely as the

fishery approaches the limit on total

harvest established by the annual quota.

The fewer vessels harvesting the quota,

the greater the possibility that

highgrading will occur, depending on

the size of the quota. High levels of

harvest are required to sustain a lobster

operation, and the decision to forego the

catch of some lobster in anticipation of

a more valuable catch is not a simple

decision and not the most likely choice.

If highgrading occurs, it can be

detected. Catch and effort reported in

logbooks can be compared with historic

catch and effort data and with the

results of research cruise data from the

same year. The specific management

response to highgrading will depend on
35148 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

the extent of the highgrading and the

benefits and costs of corrective

measures, which can be implemented

through the framework process. The

Council has agreed to evaluate the

degree and effects of highgrading in the

first year of the fishery under

Amendment 9 to determine if

adjustments are necessary.

Comment: The basis for the statement

that mandatory escape vents reduce the

number of undersized lobsters caught in

traps by 50 percent should be stated.

NMFS should explain why the

percentage of sublegal lobsters in the

catch doubled between 1985 and 1994.

The increasing percentage of undersized

lobsters suggests that the fishery has

substantially reduced the number of

large, preferred lobsters.

Response: The information on the

effectiveness of escape vents was

obtained through NMFS research. The

most likely explanation for an increase

in the percentage of sublegal lobsters

caught is that the spatial nature of the

fishery has changed. Before 1990, the

main fishing areas were Maro Reef and

Necker Island. Sublegal and legal spiny

lobster inhabit separate areas on Maro

Reef; however, they occur together on

the fishing grounds at Necker Island.

After 1990, fishing effort was targeted

primarily on Necker Island, thus

increasing the relative proportion of

sublegal spiny lobster in the catch.

Comment: Past harvest projections

designed to achieve sustainable harvest

levels have exceeded sustainable catch

levels, and the approach of Amendment

9 is untested.

Response: There have not been errors

in projections of sustainable harvest.

The in-season adjustment, however, has

resulted in very large and unpredictable

variations in harvest quotas due to

extreme sensitivity to changes in CPUE.

For example, in 1994 the initial quota

was 200,000 lobsters, but was adjusted

down to 20,000 lobsters using data from

the first month of fishing and a target

CPUE of 1.0 lobster/trap haul. However,

the CPUE dropped to only 0.9 lobster/

trap haul. The resource has not been

overfished, and the resource has grown

since a quota system was implemented.

Comment: An explanation should be

provided as to why in-season harvest

adjustments are administratively

cumbersome and how fishery

management would be improved by

eliminating the measure.

Response: The in-season adjustment

caused wide and unpredictable changes

in the quotas for the fishery. As a result,

it was difficult for permit holders to

plan their activities and for NMFS to

manage the opening and closing of the

fishery in a rational manner. The 1994

experience cited by the reviewer

demonstrated that the old quota formula

was overly sensitive to very small

changes in catch rates, such that a 10

percent change in catch rate led to a 90

percent change in the quota.

Comment: The best way to assess and

detect highgrading is through observers.

Response: The FMP provides

authority for the Regional Director to

place observers on permitted vessels,

and observers may be placed if deemed

necessary and appropriate. As

previously explained, highgrading can

be detected without using observers.

Comment: The variability of the

constant harvest proposal may force

some fishermen out of business and

ultimately interfere with the current

competitive market structure, or could

result in a number of fishermen

deciding not to participate. This could

result in excessive market power for

remaining businesses. Also, a few of the

companies could merge or a large

business could decide to enter the

market if it sees the small harvesters

exiting the market. This could adversely

affect other small businesses, such as

markets and restaurants.

Response: Most of the kinds of

prospective problems foreseen by the

SBA are also inherent in the current

management scheme and would arise if

the constant catch alternative were

chosen. However, monopolization of the

harvesting capacity is not likely given

that any single entity may not now hold

more than one permit. Both now and

under the proposed alternative, it is

possible for a large business to enter the

fishery. It should be noted that NWHI

lobster fishermen are generally unable

to set market prices due to the relatively

low overall volume of the fishery (the

projected average harvest guideline is

288,000 lobsters per year); the strong

competition from other sources of

lobsters (Australia and Brazil

especially); and the limited season (not

more than 6 months per year). It seems

unlikely, therefore, that a large firm

would enter the fishery. It is even more

unlikely that any single firm could set

prices because of competition from

international sources. Neither the

fishery in aggregate nor any one

participant can affect supply or price in

the long run to the extent that the

consumer would be impacted. It is

expected that the difference in ultimate

supply of lobster under either the

constant harvest rate or the constant

catch approach would not be large

enough to affect price or markets.

However, as the ‘‘use-or-lose’’ provision

has been eliminated, greater flexibility

is provided to permit holders to decide

when (if at all) they want to enter the

fishery. They are already free to transfer

their permits. Thus the proposed

management program should result in

the more efficient producers being more

likely to participate in the fishery.

Comment: The proposal may affect

small businesses by interfering with

their ability to make short-term and

long-term plans. Since the businesses

will have to decide each year about

whether or not to operate, the

businesses may be apprehensive about

making administrative decisions,

expanding their fleets, upgrading or

repairing vessels, or selecting a product

price that is beneficial to the economy.

The variable nature of the proposal will

discourage long-term business

expansion. It may be difficult for the

business to obtain capital for long-term

projects that may require payment over

a number of years.

Response: The concerns expressed are

generic to this fishery and would exist

if the constant catch alternative were

selected. The constant catch alternative

does not eliminate variability because

any harvest guideline would be based

on the exploitable biomass, which

fluctuates naturally. Since harvest

guidelines must be linked to the

biological status of the lobster stocks,

the FMP cannot guarantee any

particular long-term harvest for the

industry, or for a particular vessel or

business. Expansion of fleets is not

likely given the limit on the number of

permits any one entity (defined to

include a business) can hold. Most

participants in the fishery are active in

other fisheries and make a decision each

year about whether to go lobster fishing.

In fact, the constant catch alternative

would more likely discourage some

prospective fishermen from entering the

lobster fishery. The advantage of the

constant harvest rate alternative, to

these fishermen, is that some years with

very strong recruitment may provide

income that they would not expect in

average years. It should be noted that

the average expected harvest under any

of the alternatives with a 10 percent risk

level is not likely to be large enough to

support a full year—s operation for a

large portion of the fleet.

Comment: The constant harvest rate

proposal is not the most viable

alternative for small businesses. The net

present value (NPV) analysis of the

alternatives indicated that the constant

catch alternative had the highest NPV.

The constant catch approach involves

less uncertainty, has low overall catch

variability, and allows high catch rates.

The SBA urges the Council to

reconsider its decision and suggests that

the Council execute the constant catch

alternative.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35149

Response: This reading of Table 7 of

the Regulatory Impact Review is correct.

However, in the Council’s and NMFS’

view, the constant harvest rate approach

was preferred because it provides higher

allowable catches with moderate to high

CPUE, and takes greater advantage of

years with exceptional lobster

production, while still limiting

uncertainty and providing full

protection to stocks when production is

low. While maximizing NPV was

considered, tradeoffs were made based

on biological and operational

considerations, with the constant

harvest rate option deemed the optimal

strategy. Maximizing NPV was not the

sole decision criterion. The Council

recognizes that most lobster fishermen

are not dependent on the lobster fishery.

It is likely that only a few permit

holders will be active most years and

that most permit holders will not shift

from other fisheries to lobster except in

years of exceptional production. There

would be greater incentive for permit

holders to exit the fishery altogether if

there were a constant catch approach

with a relatively low and fixed harvest

limit for a number of years. That is, with

no potential for the harvest limit to

increase for a period of time, many

permit holders would appear more

likely to leave the fishery, such that the

concerns about the concentration of

harvesting capacity and control over

markets would be more likely to

materialize. The constant harvest rate

appears more likely to provide an

incentive for potential harvest capacity

to be maintained.

Changes From the Proposed Rule

When the harvest guideline is

projected to be taken, NMFS will notify

fishermen 5 days in advance that further

landings are prohibited under

§ 681.29(b)(3). This is shorter notice

than the 7 days provided in the former

regulations at § 681.31(c)(4). The delay

in prohibiting landings, after fishing for

lobster has been prohibited, is intended

to allow a minimum number of days for

vessels to return to port. In most

circumstances lobstermen in the NWHI

do not need 7 days to get to port. Seven

days notice provides additional time to

fish, while weakening NMFS’ ability to

keep the harvest within the harvest

guideline. Five days is sufficient time to

get back to port from most areas under

normal weather conditions. The

requirement is for a minimum number

of days and does not preclude NMFS

from giving more than 5 days if

circumstances warrant. Advance notice

may be given by direct notice to

fishermen or by publication in the

Federal Register.

Classification

Section 3507(c)(B)(i) of the PRA

requires that agencies inventory and

display a current control number

assigned by the Director, Office of

Management and Budget (OMB), for

each agency information collection.

Section 902.1(b) identifies the location

of NOAA regulations for which OMB

approval numbers have been issued.

Because this final rule amends a

recordkeeping and reporting

requirement, 15 CFR 902.1(b) is revised

to reference correctly the new sections

resulting from the consolidation.

Notwithstanding any other provision

of law, no person is required to respond

to nor shall a person be subject to a

penalty for failure to comply with a

collection of information subject to the

requirements of the Paperwork

Reduction Act unless that collection of

information displays a currently valid

OMB Control Number.

Under NOAA Administrative Order

205–11, 7.01, dated December 17, 1990,

the Under Secretary for Oceans and

Atmosphere has delegated to the

Assistant Administrator for Fisheries,

NOAA, the authority to sign material for

publication in the Federal Register.

This rule includes a reduction in

collection-of-information requirements

subject to the Paperwork Reduction Act.

The current rule, which was approved

by the Office of Management and

Budget (OMB) under OMB Control No.

0648–0204, requires that permits be

renewed annually. Under the final rule,

permits are effective until modified,

suspended, or revoked. The permit

holder must advise NMFS of changes in

permit information such as change of

ownership or the vessel covered by the

permit. The estimated burden decreases

from 1⁄2 hour per year to 1⁄2 hour per 3

years. Vessel owners are no longer

required to notify NMFS prior to

departing on each fishing trip, a

requirement approved under OMB

Control No. 0648–0214. This reduces

the estimated burden by 5 minutes per

vessel per trip, or up to 30 minutes per

year. This rule also mentions the daily

lobster and sales reports which take 5

minutes to complete, respectively, and

have been approved under OMB control

number 0648–0214. The total burden is

estimated to decrease by about 10 hours

per year. Send comments regarding

these burden estimates or any other

aspect of these collection-of-information

requirements, including suggestions for

reducing the burden, to the Regional

Director and to OMB (see ADDRESSES).

This final rule has been determined to

be not significant for purposes of E.O.

12866.

NMFS has prepared a FRFA as part of

the regulatory impact review, which

describes the impact this rule would

have on small entities. To the extent

that there are impacts, they are expected

to be beneficial. Under the proposed

harvest guideline, there will likely be

fewer years in which the fishery is

closed. The increased harvest guideline

and reduction in costs may result in a

5 percent or greater increase in gross

annual revenues. All vessels in this

fishery (15 vessels have permits) are

considered small entities. No new

reporting, recordkeeping, or compliance

requirements are imposed by this rule.

No Federal rules are known to

duplicate, overlap, or conflict with this

rule. The reasons for, objectives of, and

legal basis for this rule are described

elsewhere in this preamble. Multiple

alternatives are analyzed in the FRFA. A

copy of the FRFA is available for public

review (see ADDRESSES).

The Southwest Region, NMFS,

completed a formal consultation under

section 7 of the ESA to consider the

possible impacts of the fishery on

Hawaiian monk seals and other listed

species and critical habitat. The BO

concludes that the fishery under

Amendment 9 is not likely to jeopardize

the continued existence of the listed

species or adversely effect critical

habitat within the management area.

The Assistant Administrator finds

that under 5 U.S.C. 553(d)(1), this rule

(except for § 681.21) is not subject to a

30-day delay in effectiveness date as it

relieves restrictions on lobster

fishermen. Therefore, except for new

§ 681.12, which is effective on August 5,

1996, the rule is effective June 28, 1996.

List of Subjects

15 CFR Part 902

Reporting and recordkeeping

requirements.

50 CFR Part 681

Fisheries, Reporting and

recordkeeping requirements.

Nancy Foster, Ph.D.,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 15 CFR chapter IX and 50

CFR Chapter VI are amended as follows:

15 CFR CHAPTER IX

PART 902—NOAA INFORMATION

COLLECTION REQUIREMENTS UNDER

THE PAPERWORK REDUCTION ACT:

OMB CONTROL NUMBERS 0648–204

and 0648–214

1. The authority citation for part 902

continues to read as follows:
35150 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

Authority: 44 U.S.C. 3501 et seq.

2. In § 902.1, paragraph (b), the table

is amended by removing in the left

column under 50 CFR, the entry

‘‘681.10’’, and in the right column the

corresponding control number.

50 CFR CHAPTER VI

In § 902.1, paragraph (b), the table, in

the entries for 50 CFR in the left

column, the following entry and

corresponding OMB number are

removed: ‘‘681.10’’.

PART 681—WESTERN PACIFIC

CRUSTACEAN FISHERIES

1. The authority citation for part 681

continues to read as follows:

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

2. In § 681.2, the definitions of ‘‘Final

quota’’, ‘‘Initial quota’’, ‘‘Processing’’,

‘‘Processor’’, ‘‘Receiving Vessel’’, ‘‘Tail

width of slipper lobster’’, ‘‘Tail width of

spiny lobster’’, and ‘‘U.S.-harvested

lobster’’ are removed; the definition of

‘‘Harvest guideline’’ is added in

alphabetical order, and the definition of

‘‘Slipper lobster’’ is revised to read as

follows:

§ 681.2 Definitions.

* * * * *

Harvest guideline means a specified

numerical harvest objective.

* * * * *

Slipper lobster means any crustacean

of the family Scyllaridae.

* * * * *

3. In § 681.4, paragraphs (b) (2), (d),

and (f) are revised, paragraph (g) is

removed, and paragraphs (h) through (l)

are redesignated as paragraphs (g)

through (k) respectively, to read as

follows:

§ 681.4 Permits.

* * * * *

(b) * * *

(2) Each application must be

submitted on a Southwest Region

Federal Fisheries application form

obtained from the Pacific Area Office

containing all the necessary

information, attachments, certification,

signature, and fees.

* * * * *

(d) Change in application

information. Any change in information

on the permit application form

submitted under paragraph (b)(2) of this

section must be reported to the Pacific

Area Office at least 10 days before the

effective date of the change. Failure to

report such change is a basis for permit

sanctions.

* * * * *

(f) Expiration. Permits issued under

this section will remain valid

indefinitely unless transferred, revoked,

suspended, or modified under 15 CFR

part 904.

* * * * *

4. In § 681.5, paragraphs (b) and (d)

are removed, paragraphs (c) and (e) are

redesignated as paragraphs (b) and (c)

respectively, and paragraph (a) and

newly redesignated paragraph (b) are

revised to read as follows:

§ 681.5 Recordkeeping and reporting.

(a) Daily Lobster Catch Report. The

operator of any vessel engaged in

commercial fishing for lobster subject to

this part must maintain on board the

fishing vessel, while fishing for lobster,

an accurate and complete NMFS Daily

Lobster Catch Report on a form

provided by the Regional Director. All

information specified on the form,

which has been approved under the

Paperwork Reduction Act, must be

recorded on the form within 24 hours

after the completion of the fishing day.

The Daily Lobster Catch Reports for a

fishing trip must be submitted to the

Regional Director within 72 hours of

each landing of lobsters.

(b) Lobster Sales Report. The operator

of any vessel engaged in commercial

fishing for lobster subject to this part

must submit to the Regional Director,

within 72 hours of off-loading of lobster,

an accurate and complete Lobster Sales

Report on a form provided by the

Regional Director, and attach packing or

weigh-out slips provided to the operator

by the first-level buyer(s), unless the

packing/weigh-out slips have not been

provided in time by the buyer(s). The

form, which has been approved under

the Paperwork Reduction Act, must be

signed and dated by the vessel operator.

* * * * *

5. In § 681.7, paragraphs (a)(5), (b)(2)

through (b)(4) are removed, paragraphs

(b)(5) through (b)(14) are redesignated as

paragraphs (b)(2) through (b)(11)

respectively, and paragraphs (b)(1)(i)

through (b)(1)(v), newly redesignated

paragraphs (b)(6), (b)(7), (b)(9), and

(b)(11) are revised to read as follows:

§ 681.7 Prohibitions.

* * * * *

(b) * * *

(1) * * *

(i) Without a limited access permit

issued under § 681.28;

(ii) By methods other than lobster

traps or by hand for lobsters, as

specified in § 681.22;

(iii) From closed areas for lobsters, as

specified in § 681.21;

(iv) During a closed season, as

specified in § 681.27; or

(v) After the closure date, as specified

in § 681.29(b)(3), and until the fishery

opens again in the following calendar

year.

* * * * *

(6) Leave a trap unattended in the

Management Area except as provided in

§ 681.22(f).

(7) Maintain on board the vessel or in

the water, more than 1200 traps per

fishing vessel, of which no more than

1100 can be assembled traps, as

specified in § 681.22(e).

* * * * *

(9) Land lobsters taken in Permit Area

1 after the closure date, as specified in

§ 681.29 (b)(3), until the fishery opens

again the following year.

* * * * *

(11) Refuse to make available to an

authorized officer and employee of

NMFS designated by the Regional

Director for inspection and copying any

records that must be made available in

accordance with § 681.11(a).

* * * * *

6. Section 681.10 is revised to read as

follows:

§ 681.10 Observers.

All fishing vessels subject to this part

must carry an observer when requested

to do so by the Regional Director.

7. In § 681.11, paragraph (a)

introductory text is revised to read as

follows:

§ 681.11 Availability of records for

inspection.

(a) Upon request, any first-level buyer

must immediately allow an authorized

officer and any employee of NMFS

designated by the Regional Director, to

access, inspect, and copy all records

relating to the harvest, sale, or transfer

of management unit species taken by

vessels that have permits issued under

this part or that are otherwise subject to

this part, including, but not limited to

information concerning:

* * * * *

8. Section 681.12 is added effective

(insert 30 days after publication in the

Federal Register) to subpart A to read as

follows:

§ 681.12 Framework procedures.

(a) Introduction. New management

measures may be added through

rulemaking if new information

demonstrates that there are biological,

social, or economic concerns in Permit

Areas 1, 2, or 3. The following

framework process authorizes the

implementation of measures that may

affect the operation of the fisheries, gear,

harvest guidelines, or changes in catch

and/or effort.

(b) Annual report. By June 30 of each

year, the Council-appointed Crustaceans
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35151

Plan Team will prepare an annual report

on the fisheries in the management area.

The report shall contain, among other

things, recommendations for Council

action and an assessment of the urgency

and effects of such action(s).

(c) Procedures for established

measures. (1) Established measures are

management measures that, at some

time, have been included in regulations

implementing the FMP, and for which

the impacts have been evaluated in

Council/NMFS documents in the

context of current conditions.

(2) Following the framework

procedures of Amendment 9 to the

FMP, the Council may recommend to

the Regional Director that established

measures be modified, removed, or reinstituted. Such recommendation shall

include supporting rationale and

analysis, and shall be made after

advance public notice, public

discussion, and consideration of public

comment. NMFS may implement the

Council’s recommendation by

rulemaking if approved by the Regional

Director.

(d) Procedure for New Measures. (1)

New measures are management

measures that have not been included in

regulations implementing the FMP, or

for which the impacts have not been

evaluated in Council/NMFS documents

in the context of current conditions.

(2) Following the framework

procedures of Amendment 9 to the

FMP, the Council will publicize,

including by Federal Register

notification, and solicit public comment

on, any proposed new management

measure. After a Council meeting at

which the measure is discussed, the

Council will consider recommendations

and prepare a Federal Register

document summarizing the Council’s

deliberations, rationale, and analysis for

the preferred action, and the time and

place for any subsequent Council

meeting(s) to consider the new measure.

At subsequent public meeting(s), the

Council will consider public comments

and other information received to make

a recommendation to the Regional

Director about any new measure. NMFS

may implement the Council’s

recommendation by rulemaking if

approved by the Regional Director.

9. In Subpart B, §§ 681.21 and 681.22

are removed and §§ 681.23 through

681.32 are redesignated as §§ 681.21

through 681.30, respectively.

10. In newly redesignated § 681.25, in

paragraphs (b) and (g)(1), the words

‘‘He’’ and ‘‘he’’ are removed and the

words ‘‘The Regional Director’’ and ‘‘the

Regional Director’’ are added in their

place, respectively.

11. In newly redesignated § 681.26, in

paragraphs (a) introductory text, (b)(1),

and (b)(3), the words ‘‘he’’, ‘‘He’’, and

‘‘He’’ are removed and the words ‘‘the

Regional Director’’, ‘‘The Regional

Director’’, and ‘‘The Regional Director’’

are added in their place, respectively.

12. In newly redesignated § 681.28,

paragraphs (b) and (c) are removed,

paragraphs (d), (e), and (f) are

redesignated as paragraphs (b), (c), and

(d), respectively, and paragraphs (a)(8)

and newly redesignated paragraph (c)

are revised to read as follows:

§ 681.28 Limited access management

program.

(a) * * *

(8) A limited entry permit has no

fixed expiration date.

* * * * *

(c) Replacement of a vessel covered by

a limited access permit. A limited

access permit issued under this section

may, without limitation as to frequency,

be transferred by the permit holder to a

replacement vessel owned by that

person.

* * * * *

13. In newly redesignated § 681.29,

the section heading is revised, and

paragraph (c) is removed, paragraph (d)

is redesignated as paragraph (c), and

paragraphs (a) and (b) are revised to

read as follows:

§ 681.29 Harvest limitation program.

(a) General. A harvest guideline for

Permit Area 1 will be set annually for

the calendar year and shall:

(1) Apply to the total catch of spiny

and slipper lobsters.

(2) Be expressed in terms of numbers

of lobsters.

(b) Harvest guideline. (1) The Regional

Director shall use information from

daily lobster catch reports and lobster

sales reports from previous years, and

may use information from research

sampling and other sources, to establish

the annual harvest guideline in

accordance with the FMP.

(2) NMFS shall publish a document

indicating the annual harvest guideline

in the Federal Register by March 31

each year, and shall use other means to

notify permit holders of the harvest

guideline for the year.

(3) The Regional Director shall

determine, on the basis of the

information reported to NMFS during

the open season by the operator of each

vessel fishing, when the harvest

guideline will be reached. Notice of this

determination, with a specification of

the closure date after which fishing for

lobster or further landings of lobster

taken in Permit Area 1 is prohibited,

will be provided to each permit holder

and operator of each permitted vessel or

announced in the Federal Register. At

least 5 days advance notice of the

effective date of the prohibition on

landings will be given.

* * * * *

14. Newly redesignated § 681.30 is

revised to read as follows:

§ 681.30 Five-year review.

The Council, in cooperation with

NMFS, will conduct a review of the

effectiveness and impacts of the NWHI

management program, including

biological, economic, and social aspects

of the fishery, by July 1, 2001.

[FR Doc. 96–17091 Filed 6–28–96; 5:11 pm]

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