[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35145-35151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17091]


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DEPARTMENT OF COMMERCE
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.

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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

[[Page 35146]]

management program and enforcement efforts.

EFFECTIVE DATES: June 28, 1996, except new Sec. 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 Diaz-Soltero, 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

[[Page 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, bank-by-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 Secs. 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

[[Page 35148]]

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 years 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.

[[Page 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 Sec. 681.29(b)(3). This is shorter notice than the 7 days 
provided in the former regulations at Sec. 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 Sec. 681.21) is not subject to a 30-day delay in 
effectiveness date as it relieves restrictions on lobster fishermen. 
Therefore, except for new Sec. 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:


[[Page 35150]]


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

    2. In Sec. 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 Sec. 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 Sec. 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:


Sec. 681.2  Definitions.

* * * * *
    Harvest guideline means a specified numerical harvest objective.
* * * * *
    Slipper lobster means any crustacean of the family Scyllaridae.
* * * * *
    3. In Sec. 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:


Sec. 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 Sec. 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:


Sec. 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 Sec. 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:


Sec. 681.7  Prohibitions.

* * * * *
    (b) * * *
    (1) * * *
    (i) Without a limited access permit issued under Sec. 681.28;
    (ii) By methods other than lobster traps or by hand for lobsters, 
as specified in Sec. 681.22;
    (iii) From closed areas for lobsters, as specified in Sec. 681.21;
    (iv) During a closed season, as specified in Sec. 681.27; or
    (v) After the closure date, as specified in Sec. 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 Sec. 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 Sec. 681.22(e).
* * * * *
    (9) Land lobsters taken in Permit Area 1 after the closure date, as 
specified in Sec. 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 
Sec. 681.11(a).
* * * * *
    6. Section 681.10 is revised to read as follows:


Sec. 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 Sec. 681.11, paragraph (a) introductory text is revised to 
read as follows:


Sec. 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:


Sec. 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

[[Page 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 re-instituted. 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, Secs. 681.21 and 681.22 are removed and 
Secs. 681.23 through 681.32 are redesignated as Secs. 681.21 through 
681.30, respectively.
    10. In newly redesignated Sec. 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 Sec. 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 Sec. 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:


Sec. 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 Sec. 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:


Sec. 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 Sec. 681.30 is revised to read as follows:


Sec. 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]
BILLING CODE 3510-22-P