[Federal Register Volume 73, Number 22 (Friday, February 1, 2008)]
[Proposed Rules]
[Pages 6101-6108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1900]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 071211828-7557-01]
RIN 0648-AU22


Fisheries in the Western Pacific; Bottomfish and Seamount 
Groundfish Fisheries; Management Measures in the Main Hawaiian Islands

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would implement management measures for the 
vessel-based bottomfish fishery in the Main Hawaiian Islands, including 
requirements for non-commercial (recreational and subsistence) permits 
and data reporting, a closed season, annual total allowable catch 
limits, and non-commercial bag limits. The proposed action is intended 
to end the overfishing of bottomfish in the Hawaiian Archipelago.

DATES: Comments must be received on or before March 7, 2008.

ADDRESSES: Comments on the proposed rule, identified by 0648-AU22, may 
be sent to either of the following addresses:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov; or
    <bullet> Mail: William L. Robinson, Regional Administrator, NMFS, 
Pacific Islands Region (PIR), 1601 Kapiolani Blvd, Suite 1110, 
Honolulu, HI 96814-4700.
    Instructions: All comments received are a part of the public record 
and will generally be posted to www.regulations.gov without change. All 
Personal Identifying Information (for example, name, address, etc.) 
submitted voluntarily by the commenter may be publicly accessible. Do 
not submit Confidential Business Information, or otherwise sensitive or 
protected

[[Page 6102]]

information. NMFS will accept anonymous comments. Attachments to 
electronic comments will be accepted in Microsoft Word or Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of Amendment 14, including a final environmental impact 
statement, regulatory impact review, and initial regulatory flexibility 
analysis, are available from the Western Pacific Fishery Management 
Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 
808-522-8220, fax 808-522-8226.

FOR FURTHER INFORMATION CONTACT: Karla Gore, NMFS PIR, 808-944-2273.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is accessible via the World Wide Web at the 
Office of the Federal Register's web site www.gpoaccess.gov/fr/.

Background

    Bottomfish fishing in Hawaii is managed under the Fishery 
Management Plan for the Bottomfish and Seamount Groundfish Fisheries of 
the Western Pacific Region (Bottomfish FMP), which was developed by the 
Council and implemented by NMFS under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
Hawaii bottomfish are managed as a single archipelago-wide multi-
species stock complex (bottomfish complex). The bottomfish complex is 
comprised of certain deep-slope snappers, groupers, and jacks. 
Fisheries and management programs for Hawaiian bottomfish operate in 
two large geographic areas--the Northwestern Hawaiian Islands (NWHI) 
and the main Hawaiian Islands (MHI).
    Fishermen use lines with baited hooks to target bottomfish over 
deep bottom slopes. Fishing trips are usually a day or less, and most 
bottomfish fishermen also participate in pelagic fisheries (e.g., 
trolling for tunas, marlins, and related species). Except for a few 
full-time commercial bottomfish fishermen, most fish for bottomfish no 
more than 60 days a year.
    Data from the Hawaii commercial bottomfish fishery are collected 
through the State of Hawaii commercial fishing report program. In 2003, 
the most recent year for which data are available, there were currently 
about 380 vessels active in the commercial bottomfish fishery. The 
total 2003 ex-vessel revenue from the commercial bottomfish fishery in 
the MHI was estimated at $1.46 million for landings of 273,000 lb 
(123,831 kg).
    There is currently no mandatory permitting or data reporting 
requirement for non-commercial fishing. Some data on the non-commercial 
bottomfish fishery are collected through surveys. NMFS estimates that, 
based on the State boat registration program and independent surveys, 
800-5,000 fishermen participate in the non-commercial bottomfish 
fishery.
    NMFS, on behalf of the Secretary of Commerce, determined that 
overfishing is occurring on the bottomfish complex in the Hawaiian 
Archipelago, with the primary problem being excessive fishing mortality 
on seven deep water species (the ``Deep 7'' species) in the MHI. The 
Deep 7 species are onaga (Etelis coruscans), ehu (E. carbunculus), 
gindai (Pristipomoides zonatus), kalekale (P. sieboldii), opakapaka (P. 
filamentosus), lehi (Aphareus rutilans), and hapu'upu'u (Epinephelus 
quernus).
    On May 27, 2005, NMFS notified the Council of the overfishing and 
requested the Council to take appropriate action to end the overfishing 
(70 FR 34452, June 14, 2005). In response, in May 2006, the Council 
prepared an FMP amendment and draft regulations that would have reduced 
fishing mortality on the Deep 7 species by 15 percent, the reduction 
indicated by the stock assessment at that time.
    In September 2006, before the Council amendment was finalized, NMFS 
updated the status of bottomfish stocks using 2004 data, and concluded 
that overfishing was still occurring and that bottomfish fishing effort 
in the MHI would have to be reduced by 24 percent from the 2004 level 
to bring archipelago-wide bottomfish fishing mortality down to the 
maximum fishing mortality threshold.
    To immediately address the overfishing situation, the Council 
requested that NMFS close the Hawaii non-commercial and commercial 
bottomfish fisheries during the summer of 2007. NMFS promulgated an 
interim rule that closed Federal waters around the MHI to commercial 
and non-commercial bottomfish fishing for the Deep 7 species from May 
15 though September 30, 2007 (72 FR 27065; May 17, 2007). The State of 
Hawaii also implemented a complementary interim closed season for State 
waters during the same period.
    The Council further developed Amendment 14 and management measures 
designed to prevent overfishing, commensurate with the 2006 revised 
bottomfish stock assessment. This proposed rule is intended to end 
overfishing of the bottomfish stocks around the Hawaiian Archipelago, 
reduce the fishing mortality for the Deep 7 species in the MHI by 
approximately 24 percent in 2008 and establish a mechanism (annual TAC) 
to respond to future changes in stock status, and improve data 
collection from non-commercial bottomfish fisheries in Federal waters 
around the MHI.
    The proposed rule would implement several management measures for 
vessel-based bottomfish fishing in the MHI. First, a Federal bottomfish 
permit would be required for all vessel-based non-commercial fishing 
for any bottomfish management unit species (not just Deep 7 species) in 
Federal waters around the MHI. All non-commercial bottomfish fishermen 
who fish from vessels would be required to obtain this permit by the 
start of the 2008-09 fishing year (i.e., September 1, 2008). There 
would be a fee for the permits, and while the exact cost of the permit 
has not been determined at this time, it would be less than $80.
    Second, the proposed rule would require operators of non-commercial 
fishing vessels to submit daily Federal logbooks that document 
bottomfish fishing effort and catch for each fishing trip. The data 
from these logbooks would be the basis for calculating non-commercial 
fishing effort and harvest of bottomfish management unit species, 
bycatch, and interactions with protected species.
    Third, the proposed rule would implement a closed season from May 1 
through August 30, 2008. During this closure, fishing for Deep 7 
species would be prohibited in Federal waters. Fishing for bottomfish 
species other than Deep 7 species would not be prohibited during the 
closed season. This summer time period was chosen to maximize 
protection for Deep 7 bottomfish during their spawning season, and to 
minimize social and economic impacts to fishery participants (other 
fishing opportunities are available during the summer, e.g., pelagic 
trolling).
    Fourth, the proposed rule would also establish an annual total 
allowable catch (TAC) for the MHI bottomfish fishery. The TAC would be 
determined each fishing year using the best available scientific 
information, commercial and non-commercial fishing data, and other 
information, and would consider the associated risk of overfishing. 
NMFS would publish in the Federal Register by August 31 the TAC for the 
upcoming fishing year, and would use other means to notify permit 
holders of the TAC. When the TAC is reached, or projected to be 
reached, NMFS would publish a notice in the Federal Register and use 
other means to notify permit holders that the fishery will be closed on 
a specified date, providing fishermen

[[Page 6103]]

with two weeks advance notice of the closure.
    The Council set the TAC for the 2007-08 fishing year (October 2007 
through April 2008) at 178,000 lb (80,740 kg) of Deep 7 species. This 
represents a 24-percent reduction from the 2004 reported commercial 
fleet-wide catch. When the TAC is reached, all fishing for Deep 7 
species will be prohibited in Federal waters around the MHI for the 
remainder of the fishing year. There is no prohibition on fishing for 
other bottomfish species throughout the year.
    Lastly, the proposed rule would implement Federal bottomfish bag 
limits for non-commercial fishing. Non-commercial fishermen would be 
allowed to catch, possess, and land as many as five Deep 7 fish 
combined, per person, per fishing trip in Federal waters. The State of 
Hawaii also has a similar bag limit for non-commercial fishing.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Bottomfish FMP, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration 
after public comment.
    Public comment is specifically sought in two areas: (1) the 
potential impacts on the regulated public of the vessel identification 
requirements in 50 CFR 665.16, and (2) requirements for Federal non-
commercial permit holders to report their fishing activity and catch in 
both Federal and state waters.
    The Council prepared a final supplemental environmental impact 
statement (EIS) for Amendment 14 that discusses the impacts on the 
environment as a result of this proposed rule. The direct, indirect, 
short-term, long-term, and cumulative impacts of the proposed action 
were analyzed. The measures are expected to result in a decrease in 
fishing effort and this is expected to have a positive impact on the 
Deep 7 species that are experiencing overfishing. No significant 
adverse impacts are anticipated on sea turtles, marine mammals, 
seabirds, Essential Fish Habitat, or Habitat Areas of Particular 
Concern from either bottomfishing activities or as a result of 
bottomfishing operations changing to pelagic fishing at times when the 
bottomfish fishery is closed.
    The implementation of a TAC as a fishery management measure does 
have the potential to result in a ``race for the fish'' and high-
grading (discarding less desirable fish for more desirable fish). 
However, the likelihood of either of these scenarios occurring is 
expected to be low, and if these do occur, the Council and NMFS could 
take additional action to prevent adverse impacts. The proposed 
reporting and permitting requirements for non-commercial fishing would 
provide more comprehensive information for monitoring and managing the 
bottomfish fishery.
    The impact of reduced fishing on non-target fish and bycatch was 
considered and is not expected to be significant because the measures 
to end overfishing would also result in a decrease of total catch in 
both target and non-target fish. Fish mortality due to barotrauma 
(physical damage to the fish as gases in the gas bladder expand in an 
uncontrolled manner during rapid ascent) would be reduced through 
outreach by the Council and NMFS to teach fishermen how to properly 
resuscitate and release fish. All fish catches would be required to be 
recorded and counted as part of the TAC, so it is believed that this 
will help to discourage high-grading.
    The proposed rule is not expected to have significant adverse 
economic impacts. The impacts of the seasonal closure and TAC 
limitations might be mitigated for the commercial fishermen because 
they can offset their losses through moving to pelagic fishing during 
the seasonal closures and after the TAC is reached. The EIS analysis 
recognizes that during the times the MHI fishery is closed, markets 
will shift to imports to supply bottomfish, and these markets would 
need to be re-established by local bottomfish fishermen annually. It is 
believed that these fluctuations can be managed over time. Non-
commercial fishermen that are required to stop fishing once TAC is 
reached would also be able to fish for non-Deep 7 or pelagic species.
    The proposed rule is not expected to result in significant adverse 
or disproportionate impacts on fishing communities, native Hawaiians, 
or on members of minority or low-income groups. Adverse impacts would 
be spread among all fishery participants, and the measures will benefit 
the fishery in the long run, and provide a sustainable harvest of 
bottomfish in the future.
    Overall, the proposed rule is expected to have positive 
environmental impacts by ensuring that the bottomfish complex will no 
longer be subject to overfishing. A copy of the environmental impact 
statement is available from the Council (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) (including a 
supplemental IRFA) was prepared, as required by section 603 of the 
Regulatory Flexibility Act. The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY of the preamble. The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities, as 
follows:

    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the SUMMARY and 
SUPPLEMENTARY INFORMATION sections of the preamble to this rule. 
This rule does not duplicate, overlap, or conflict with other 
Federal rules. There are no reporting, record-keeping, or other 
compliance requirements for commercial vessels in the proposed rule. 
There are no disproportionate economic impacts from this rule based 
on home port, gear type, or relative vessel size.

Description and Estimate of the Number of Small Entities to Which the 
Rule Applies

    There are approximately 380 vessels engaged in the harvest of 
bottomfish based on 2000-03 data. The aggregate gross receipts for 
these vessels in the bottomfish fishery were $1.47 M with average 
gross receipts per vessel of $3,870 annually. All vessels are 
considered to be small entities under the Small Business 
Administration definition of a small entity, i.e., they are engaged 
in the business of fish harvesting, are not independently-owned or 
operated, are not dominant in its field of operation, and have 
annual gross receipts not in excess of $4 million. Therefore, there 
are no disproportionate economic impacts between large and small 
entities.

Description of Alternatives

Alternative 1: No Action

Alternative 1 is to take no Federal action; that is, no Federal 
management measures would be recommended by the Council for approval 
and implementation at this time. Under this alternative, overfishing 
in the bottomfish fishery in the Hawaiian Archipelago would 
continue. This alternative would allow continued open access for 
entry into the MHI fishery. MHI commercial fishermen would be 
required to submit catch reports but non-commercial fishermen would 
not be required to submit catch reports, so the non-commercial catch 
component of the total harvest would remain unknown.

Alternative 2: May - September Seasonal Closure

    Under Alternative 2, an annual summer closure would be 
implemented from May 1 to September 30 for the entire MHI

[[Page 6104]]

bottomfish fishery (both commercial and non-commercial vessels). 
Targeting, possessing, landing, or selling Deep 7 species caught in 
the MHI would be prohibited during the closed season. The NWHI 
bottomfish fishery would remain open until it is phased out in 2011. 
Bottomfish imports and NWHI bottomfish would be exempt from the 
prohibition. All vessel operators (both commercial and non-
commercial) targeting bottomfish in the MHI would be required to 
register their vessels on an annual basis and would be required to 
complete and submit reports of their catch, fishing effort, and area 
fished. In addition, each vessel would be required to be marked on 
an unobstructed upper surface with its registration number.
    Implementing this seasonal closure for both the commercial and 
non-commercial fishery, based on mean monthly landings, would result 
in an approximate 25 percent reduction of fishing mortality, 
however, parallel State regulations would be needed for this 
alternative to be feasible and effective. Based on mean monthly 
landings (1998-2004), a May through September closed period, would 
meet the current 24 percent target reduction, if significant 
temporal redistribution of fishing effort does not occur. During the 
open season the non-commercial component would have to adhere to the 
existing State non-commercial bag limit of five ehu and/or onaga per 
trip per person, however, this limit may be changed and/or other 
species may be added.

Alternative 3: Fleet wide TAC

    Alternative 3 would implement a Fleet wide (i.e. combined 
commercial and non-commercial) TAC designed to result end 
overfishing. Under this alternative commercial and non-commercial 
catches would be reported within a specified time limit (as close to 
'real time' as is feasible) and a regulatory mechanism would be put 
into place to close the fishery for the remainder of the fishing 
year when the combined TAC is reached. The fishing year would begin 
October 1. The TAC would initially be set at 178,000 pounds of the 
Deep 7 species (all species combined), representing a 24 percent 
reduction from the 2004 Fleet wide reported MHI bottomfish catch of 
these species and would be applied to the MHI commercial Deep 7 
bottomfish fishery. Bottomfish fishing would be allowed each fishing 
year until the TAC was reached, and thereafter no fishing for Deep 7 
bottomfish (commercial or non-commercial) would be permitted in the 
MHI. The TAC would be anticipated to be revised by NMFS in 
subsequent years based on future stock conditions.

Alternative 4: Commercial TAC and Non-commercial Bag Limit

    Alternative 4 would implement a TAC for the commercial fishery 
only and close that sector when the TAC is reached. The bottomfish 
fishing year would start on October 1 which makes it more likely the 
fishery will be open during the important holiday periods and 
continue until the TAC was reached. The non-commercial sector would 
have to adhere to the existing State non-commercial bag limit of 5 
ehu and/or onaga per trip per person, however, this limit may be 
changed and/or other species may be added by the State. The TAC 
would initially be set at 178,000 pounds of the Deep 7 species (all 
species combined), representing a 24 percent reduction from the 2004 
Fleet wide reported MHI bottomfish catch of these species (Moffitt 
et al. 2006) and would be applied to the MHI commercial Deep 7 
bottomfish fishery. Bottomfish fishing would be allowed each fishing 
year until the TAC was reached, and thereafter no fishing for Deep 7 
bottomfish (commercial or non-commercial) would be permitted in the 
MHI. The TAC would be anticipated to be revised by NMFS in 
subsequent years based on future stock conditions.

Alternative 5: TAC with Limited Access and Non-commercial Bag Limit

    Alternative 5 would implement a commercial TAC in combination 
with a limited access program for the commercial sector. A limited 
access system will simplify the determination and monitoring of 
individual quotas by limiting the number of participants. Only those 
with limited access permits would be allowed to fish commercially 
for the Deep 7 bottomfish in the MHI. Each limited access vessel 
would be required to stop fishing when the TAC was reached. The 
limited access system would allocate a certain number of permits 
based on criteria related to past participation in the fishery. The 
non-commercial catch component would be limited by maintaining the 
State's existing bag limit but possibly would include other species. 
The fishing year would begin October 1. The TAC would initially be 
set at 178,000 pounds of the Deep 7 species (all species combined), 
representing a 24 percent reduction from the 2004 Fleet wide 
reported MHI bottomfish catch of these species (Moffitt et al. 2006) 
and would be applied to the MHI commercial Deep 7 bottomfish 
fishery. Bottomfish fishing would be allowed each fishing year until 
the TAC was reached, and thereafter no fishing for Deep 7 bottomfish 
(commercial or non-commercial) would be permitted in the MHI. The 
TAC would be anticipated to be revised by NMFS in subsequent years 
based on future stock conditions.

Alternative 6: Commercial IFQs and Non-commercial Bag Limit

    Alternative 6 would allocate individual fishing quotas (IFQs) to 
all commercial fishermen (open access), whereby each fisherman is 
required to stop fishing for the reminder of the fishing year when 
their individual quota was reached. The sum of quotas would be 
calculated to meet the necessary fishing mortality reduction. In a 
sense this alternative is also management using a TAC, however, the 
TAC is subdivided into individual quotas. The number of fishermen 
would likely be limited to past participants in the fishery and 
quota amounts would likely be determined based on individual 
historical catches. Once a commercial fisherman had landed his 
respective IFQ, that person would not be permitted to fish for, 
possess, or sell any bottomfish until the following year. The non-
commercial component would have to adhere to the existing State non-
commercial bag limit of 5 ehu and/or onaga per trip per person, 
however, this limit may be changed and/or other species may be added 
by the State. The sum of the IFQs would initially be set at 178,000 
pounds of the Deep 7 species (all species combined), representing a 
24 percent reduction from the 2004 Fleet wide reported MHI 
bottomfish catch of these species (Moffitt et al., 2006). The sum of 
the IFQs would be anticipated to be revised by NMFS in subsequent 
years based on future stock conditions.
    Each MHI commercial bottomfish participant with an IFQ would be 
issued a set of bottomfish stamps, with each stamp representing a 
certain number of pounds of bottomfish and all the stamps totaling 
the fisherman's total IFQ. The fisherman would be required to submit 
a stamp to the dealer at the point of sale. Once all the stamps were 
submitted the fisherman would be prohibited from fishing until the 
next open season. The fisherman's bottomfish stamps would be non-
transferable.
    Under this alternative, commercial fishermen would be required 
to continue reporting their catches and to stop fishing when their 
individual quota was reached. Fishery data would be analyzed in real 
time to monitor landings versus quotas.

Alternative 7: Phased-in TAC Management (Preferred)

    Under Alternative 7, the MHI Deep 7 bottomfish fishery would 
ultimately be managed under a TAC which would be based on, and 
applied to, both commercial and non-commercial catches combined. 
Alternative 7 would utilize a phased-in approach. Phase 1 was to 
consist of a May-September 2007, seasonal closure of waters around 
the MHI to both commercial and non-commercial fishing for the Deep 7 
species, and this closed period is currently in effect. The 2007 
seasonal closure has already been analyzed and implemented for 
Federal waters by NMFS (72 FR 27065; May 14, 2007) and by the Hawaii 
DLNR for State waters and is, therefore, not part of the action 
analyzed in this document.
    A commercial Deep 7 TAC of 178,000 lb (80,740 kg, a 24- percent 
reduction of MHI commercial Deep 7 catches as compared to 2004) 
would be implemented. Tracking of commercial landings towards this 
TAC has begun with the reopening of the fishery on October 1, 2007. 
During the open period, non-commercial catches would continue to be 
managed by bag limits, however they would be changed from the 
current five onaga and/or ehu combined per person per trip, to five 
of any Deep 7 species combined per person per trip and they would be 
extended into Federal waters via Federal rulemaking under the 
Council process to ease enforcement. Once commercial Deep 7 landings 
reached the TAC, both the commercial and non-commercial sectors 
would be closed.
    There would be a Federal permit requirement for all non-
commercial fishermen who catch BMUS in the MHI. The operator of a 
vessel would be responsible for reporting landings of each trip 
taken. This would provide NMFS with the data needed to calculate and 
track a non-commercial portion of the overall TAC.

[[Page 6105]]

    A second seasonal closure to MHI Deep 7 fishing would be 
implemented from May August 2008, followed by implementation of a 
combined commercial and non-commercial Deep 7 TAC beginning 
September 1, 2008. The non-commercial bag limits would be dropped 
for the 2008 fishery. However, bag limits could be reinstated 
depending upon the quality of non-commercial catch data provided by 
fishermen to the State and NMFS so that an appropriate non-
commercial TAC may be selected by the Council. In subsequent years 
(2009 and beyond) the fishing year would begin on September 1 and 
the MHI Deep 7 fishery would be managed via a commercial and non-
commercial TAC calculated by PIFSC to prevent overfishing of these 
species.

Economic Impacts of the Rule

Preferred Alternative 7

    The preferred alternative has, in part, been implemented under 
the interim rule (72 FR 27065; May 14, 2007) that required a 
seasonal closure of the MHI bottomfish fishery from May-September, 
2007. The interim rule implemented a reduction in landings of 25.3 
percent from the biological base year of 2004. The biological marker 
to stop overfishing in the 2007 fishery required that landings be 
reduced by at least 24 percent from the 2004 base year. The TAC of 
178,000 pounds beginning on October 1,2007 and ending on September 
1, 2008 could actually represent a slight increase in economic 
benefits to individual vessels since the 2007 closure is expected to 
yield an estimated 25.3 percent reduction from 2004 landings, and 
the TAC would yield only an estimated 24 percent reduction in 
revenues assuming that actual prices remained constant between 2004 
and 2008 fisheries. This would translate to the possibility of an 
estimated 5 percent increase in harvest and resulting revenues for 
the 2008 fishery (October 1, 2007 - September 1, 2008) from the 
prior year.
    Implementation of the TAC could lead to an increased reliance on 
NWHI bottomfish until this fishery is closed in 2011 and on 
increased imports of bottomfish. An increased reliance on imported 
bottomfish would be anticipated to have negative impacts on the 
entire commercial fishery sector as market channels for fresh MHI 
bottomfish would be lost and have to be regained each year. 
Commercial fishery participants may be differentially impacted 
depending on their ability and willingness to ``race to the fish'' 
and some may upgrade their vessels (e.g., buy larger vessels or more 
powerful engines for existing vessels) or fish during adverse 
weather in order to achieve high catches before the TAC is reached. 
These responses would be anticipated to result in over-
capitalization (i.e., otherwise unnecessary investments to upgrade 
vessels) of the fishery and threats to the safety of fishery 
participants. However, given that bottomfish fishing currently 
occurs without incident throughout the year it is believed that 
existing participants are aware of and able to deal with all types 
of weather and sea conditions.
    The seasonal closure in 2008 most likely would have little or no 
impact on landings since the 2008 TAC of 178,000 lb (80,740 kg) 
should be caught prior to the low demand and historically low supply 
months of May through August. The future requirement to merge 
landings by the non-commercial sector with the commercial sector in 
determining annual harvest could have a substantially adverse 
economic impact to commercial vessels. This would result from the 
impact of a unique quota that at this time is given only to 
commercial vessels but would eventually be shared by both non-
commercial and commercial fisheries. Future quotas that would be 
implemented to prevent overfishing could translate into a reduction 
in availability of fish to the commercial sector determined exactly 
by an increase in fish available to the non-commercial sector. 
Considering that for 2007-08 the non-commercial harvest would not be 
counted as part of the TAC, the initial merging of non-commercial 
and commercial sector landings under one TAC, which is scheduled to 
be implemented in Sept, 2008 could result in large economic losses 
to the vessels comprising the commercial fleet. For example, if it 
is determined that the non-commercial sector could take 50 percent 
of the quota, the existing commercial TAC would be reduced by a 
defacto 50 percent; if the non-commercial sector could take 30 
percent of the quota, the commercial quota would be reduced by a 
defacto 30 percent, and so on.
    Economic losses to the commercial sector could be mitigated 
somewhat by increases to available harvest from improvements to the 
bottomfish stock and economic benefits derived from other fisheries 
or other uses of fishing vessels (opportunity costs), to the extent 
they exist. Given that there could be sizable adverse economic 
impacts to the commercial fishery resulting from one TAC for 
commercial and non-commercial sectors, NMFS will complete a 
Regulatory Flexibility Analysis to determine the economic impacts to 
commercial vessels when non-commercial landings are estimated and 
the September 1, 2008-August 31, 2009 TAC is specified. 
Additionally, by the time the TAC is specified, NMFS should l have 
information on the State of Hawaii's intentions regarding their bag 
limit. Since the universe of affected entities under does not 
include non-commercial fishers, economic impacts to this group are 
not considered under this supplemental IRFA. However, those impacts 
were analyzed by the Council as part of the Regulatory Impact Review 
to assess regional and national economic impacts.

Impacts of Other Alternatives

    In the short term, the no-action alternative would yield 
substantial economic benefits to individual vessels since they have 
been fishing under the 2007 seasonal closure which would be lifted, 
thus, allowing for a 32 percent increase over 2007 anticipated 
landings. However, if the overfishing of bottomfish in Hawaii is 
allowed to continue, the potential is high for reaching an 
``overfished'' state in the bottomfish fishery, which would require 
a rebuilding plan under which limited or no bottomfish fishing would 
be allowed for an extended period of time. An overfished and closed 
fishery would likely result in unquantifiable economic losses to all 
bottomfish fishermen, associated businesses, and local fish markets 
and restaurants. Over time, some of these losses may be stemmed as 
fishers switch to other fisheries, and fish markets and restaurants 
secure other sources of fish such as imports and catch from the 
NWHI.
    For alternative 2, based on historical MHI landings, it is 
estimated that a May through September closure of the MHI Deep 7 
bottomfish fishery would result in up to a 25.3 percent reduction in 
commercial landings of the Deep 7 species as compared to the 2004 
baseline identical to the 2007-2008 fishery under the interim 
closure. Although fishery participants may increase their fishing 
during the open season, given that summer months have historically 
been a time of lower bottomfish fishing activity significant 
increases in effort during the open season are unlikely. The summer 
closure reduces the availability of ``high end'' fresh bottomfish to 
the local markets leading to an increased reliance on imported 
bottomfish during the closed season. This could have negative 
impacts on the entire commercial fishery sector because market 
channels for fresh MHI Deep 7 bottomfish would be lost and may have 
to be regained each year.
    Under alternative 3, the requirement to count both commercial 
and non-commercial harvest toward a future TAC could yield 
substantially adverse economic impact to individual vessels as 
discussed above for the preferred alternative. If the TAC is 
reached, these alternatives could lead to an increased reliance on 
NWHI bottomfish until this fishery is closed in 2011 and on 
increased imports of bottomfish. An increased reliance on imported 
bottomfish would be anticipated to have negative impacts on the 
entire commercial fishery sector as market channels for fresh MHI 
bottomfish would be lost and have to be regained each year. 
Commercial fishery participants may be differentially impacted 
depending on their ability and willingness to ``race to the fish'' 
and some may upgrade their vessels (e.g., buy larger vessels or more 
powerful engines for existing vessels) or fish during adverse 
weather in order to achieve high catches before the TAC is reached. 
These responses would be anticipated to result in over-
capitalization (i.e., otherwise unnecessary investments to upgrade 
vessels) of the fishery and threats to the safety of fishery 
participants. The relative importance of MHI Deep 7 species to 
commercial participants as a percentage of overall fishing (or 
household) income is unknown as the total suite of fishing (or other 
income generating) activities undertaken by individual operations 
across the year have not been examined to date.
    Alternatives 4 through 6 contemplate a TAC with non-commercial 
bag limits managed by the State of Hawaii. The impact of these 
alternatives would be similar to the impact of the preferred 
alternative for the 2007-2008 fishery prior to a co-mingling of the 
commercial and non-commercial harvest. However, alternatives 5 and 6 
which introduce limited access and IFQs, respectively, could 
mitigate problems associated with common property resources as 
discussed above for alternative 3.

[[Page 6106]]

Ceasing of Business Operations

    As discussed above, the co-mingling of commercial and non-
commercial harvest to be measured against one TAC for the entire 
fishery could result in substantial economic loss to commercial 
fishers. This could conceivably cause some vessels to cease business 
operations. To address this, NMFS will complete a new RFA prior to 
implementation of the 2008-2009 TAC.

    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). These requirements 
(permit requirements under OMB No. 0648 0490, and data collection 
requirements under OMB No. 0648-0214) have been submitted to OMB for 
approval.
    The proposed rule would require that all non-commercial, i.e., 
recreational and subsistence, fishermen who for any bottomfish 
management unit in Federal waters around Hawaii to obtain permits. 
Permit eligibility would not be restricted in any way, and permits 
would be renewable on an annual basis. NMFS anticipates that initial 
permit applications would require 0.5 hours per applicant, with 
renewals requiring an additional 0.5 hours annually. NMFS estimates 
that it may receive and process up to 800-5,000 permit applications 
each year. Thus, the total collection-of-information burden to 
fishermen for permit applications is estimated at 400-2,500 hours per 
year. The cost for Federal permits has not been determined but would 
represent only the administrative cost and is anticipated to be less 
than $80 per permit.
    The proposed rule would also require either the vessel operator or 
the vessel owner to submit a catch report for every trip. The estimated 
time required for completing Federal catch reports is approximately 20 
minutes per vessel per fishing trip. Only one logbook report per trip 
is required and, estimating that 800 to 1,800 vessels would make 10 to 
50 trips per year and average 1 day per trip, the program would 
generate in the range of 8,000 to 90,000 daily fishing logbooks per 
year. Thus, the total collection-of-information burden estimate for 
fishing data reporting would be 2,664 to 29,970 hours per year.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to William 
L. Robinson (see ADDRESSES), and by email to <a href="/cdn-cgi/l/email-protection#a2e6c3d4cbc6fdf0cdd1d6c9c7d0e2cdcfc08cc7cdd28cc5cdd4"><span class="__cf_email__" data-cfemail="d195b0a7b8b58e83bea2a5bab4a391bebcb3ffb4bea1ffb6bea7">[email protected]</span></a> 
or by fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaii, Hawaiian Natives, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: January 28, 2008.
John Oliver,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 665 is 
proposed to be amended as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

    l. The authority citation for part 665 continues to read as 
follows:

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

    2. In subpart A, add a new Sec.  665.4 to read as follows:


Sec.  665.4  Licensing and registration.

    Any person who is required to do so by applicable state law or 
regulation must comply with licensing and registration requirements in 
the exact manner required by applicable state law or regulation.
    3. In Sec.  665.12, revise the definitions of ``Commercial 
fishing'', ``Fishing year'', and ``Trap'', and add the definitions for 
``Hawaii Restricted Bottomfish Species Fishing Year 2007-08'', ``Hawaii 
Restricted Bottomfish Species Fishing Year 2008-09 and After'', ``Main 
Hawaiian Islands non-commercial bottomfish permit'', and ``Non-
commercial fishing'', in alphabetical order to read as follows:


Sec.  665.12  Definitions.

* * * * *
    Commercial fishing means fishing in which the fish harvested, 
either in whole or in part, are intended to enter commerce or enter 
commerce through sale, barter, or trade. All lobster fishing in 
Crustaceans Permit Area 1 is considered commercial fishing.
* * * * *
    Fishing year means the year beginning at 0001 local time on January 
1 and ending at 2400 local time on December 31, with the exception of 
fishing for Hawaii Restricted Bottomfish Species.
* * * * *
    Hawaii restricted bottomfish species fishing year 2007-08 means the 
year beginning at 0001 HST on October 1, 2007, and ending at 2400 HST 
on April 30, 2008.
    Hawaii restricted bottomfish species fishing year 2008-09 and After 
means the year beginning at 0001 HST on September 1 and ending at 2400 
HST on August 31 of the next calendar year.
* * * * *
    Main Hawaiian Islands Non-Commercial Bottomfish Fishing Permit 
means the permit required by Sec.  665.61(a)(4) to own or fish from a 
vessel that is used in any non-commercial vessel-based fishing, 
landing, or transshipment of any bottomfish management unit species in 
the Main Hawaiian Islands Management Subarea. If any fish harvested, 
either in whole or in part, are intended to enter commerce or enter 
commerce through sale, barter, or trade, by any participants on a 
vessel-based fishing trip under this section, the entire trip is 
considered to be a commercial trip.
    Non-commercial fishing means fishing that does not meet the 
definition of commercial fishing.
* * * * *
    Trap means a box-like device used for catching and holding lobsters 
or fish.
* * * * *
    4. In Sec.  665.13, revise paragraph (g)(2) to read as follows:


Sec.  665.13  Permits and fees.

* * * * *
    (g) * * *
    (2) Permits issued under subpart E of this part expire at 2400 HST 
on December 31 with the exception of Main Hawaiian Islands Non-
Commercial Bottomfish Fishing Permits, which expire at 2400 HST on 
August 31.
* * * * *
    5. In Sec.  665.14, revise paragraph (a) to read as follows:


Sec.  665.14  Reporting and recordkeeping.

    (a) Fishing record forms. (1) Applicability. The operator of any 
fishing vessel subject to the requirements of Sec. Sec.  665.21, 
665.41, 665.61(a)(2), 665.61(a)(3), 665.61(a)(4), 665.81, or 665.602 
must maintain on board the vessel an accurate and complete record of 
catch, effort, and

[[Page 6107]]

other data on paper report forms provided by the Regional 
Administrator, or electronically as specified and approved by the 
Regional Administrator. All information specified by the Regional 
Administrator must be recorded on paper or electronically within 24 
hours after the completion of each fishing day. The logbook 
information, reported on paper or electronically, for each day of the 
fishing trip must be signed and dated or otherwise authenticated by the 
vessel operator in the manner determined by the Regional Administrator, 
and be submitted or transmitted via an approved method as specified by 
the Regional Administrator, and as required by this paragraph (a).
    (2) Timeliness of submission. (i) If fishing was authorized under a 
permit pursuant to Sec. Sec.  665.21, 665.41, 665.61(a)(3), 
665.61(a)(4), or 665.81, the original logbook form for each day of the 
fishing trip must be submitted to the Regional Administrator within 72 
hours of the end of each fishing trip, except as allowed in paragraphs 
(ii) and (iii) of this section.
    (ii) If fishing was authorized under a PRIA bottomfish permit 
pursuant to Sec.  665.61(a)(2), PRIA pelagic troll and handline permit 
pursuant to Sec.  665.21(f), crustaceans fishing permit for the PRIA 
(Permit Area 4) pursuant to Sec.  665.41, or a precious corals fishing 
permit for Permit Area X-P-PI pursuant to Sec.  665.81, the original 
logbook form for each day of fishing within the PRIA EEZ waters must be 
submitted to the Regional Administrator within 30 days of the end of 
each fishing trip.
    (iii) If fishing was authorized under a permit pursuant to Sec.  
665.602, the original logbook information for each day of fishing must 
be submitted to the Regional Administrator within 30 days of the end of 
each fishing trip.
* * * * *
    6. In Sec.  665.61, revise paragraphs (a)(1) though (a)(4) to read 
as follows:


Sec.  665.61  Bottomfish.

    (a) Applicability. (1) Northwestern Hawaiian Islands (NWHI). The 
owner of any vessel used to fish for, land, or transship bottomfish 
management unit species shoreward of the outer boundary of the 
Northwestern Hawaiian Islands subarea must have a permit issued under 
this section, and the permit must be registered for use with that 
vessel. The PIRO will not register a single vessel for use with a 
Ho'omalu Zone permit and a Mau Zone permit at the same time. Mau Zone 
permits issued before June 14, 1999, become invalid June 14, 1999, 
except that a permit issued to a person who submitted a timely 
application under paragraph (i) of this section is valid until the 
permit holder either receives a Mau Zone limited entry permit or until 
final agency action is taken on the permit holder's application. The 
Ho'omalu Zone and the Mau Zone limited entry systems described in this 
section are subject to abolition, modification, or additional effort 
limitation programs.
    (2) Pacific Remote Island Areas (PRIA). The owner of any vessel 
used to fish for, land, or transship bottomfish management unit species 
shoreward of the outer boundary of the Pacific Remote Island Areas 
subarea must have a permit issued under this section, and the permit 
must be registered for use with that vessel.
    (3) Guam large vessel. The owner of any large vessel used to fish 
for, land, or transship bottomfish management unit species shoreward of 
the outer boundary of the Guam subarea must have a permit issued under 
this section, and the permit must be registered for use with that 
vessel.
    (4) Main Hawaiian Islands non-commercial. Any person who 
participates in non-commercial, vessel-based fishing, landing, or 
transshipment of bottomfish management unit species in the Main 
Hawaiian Islands Management Subarea is required to obtain a permit 
issued under this section or a State of Hawaii Commercial Marine 
License. If any commercial fishing occurs during or as a result of a 
vessel-based fishing trip under this section, then the fishing trip is 
considered commercial and not non-commercial.
* * * * *
    7. In Sec.  665.62, add new paragraphs (j) through (n), as follows:


Sec.  665.62  Prohibitions.

* * * * *
    (j) Falsify or fail to make or file reports of all fishing 
activities shoreward of outer boundary of the Main Hawaiian Islands 
Management Subarea, in violation of Sec. Sec.  665.3 or 665.14(a).
    (k) Own a vessel or fish from a vessel, that is used to fish non-
commercially for any bottomfish management unit species in the Main 
Hawaiian Islands Management Subarea without either a Main Hawaiian 
Islands non-commercial bottomfish permit or a State of Hawaii 
Commercial Marine License, in violation of Sec. Sec.  665.4 or 
665.61(a)(4).
    (l) Fish for or possess any Hawaii Restricted Bottomfish Species as 
specified in Sec.  665.71, in the Main Hawaiian Islands Management 
Subarea after a closure of the fishery, in violation of Sec. Sec.  
665.72 or 665.73.
    (m) Sell or offer for sale any Hawaii Restricted Bottomfish 
Species, as specified in Sec.  665.71, after a closure of the fishery, 
in violation of Sec. Sec.  665.72 or 665.73.
    (n) Use a vessel to harvest, retain, or land more than a total of 
five fish (all species combined) identified as Hawaii Restricted 
Bottomfish Species in Sec.  665.71 by any individual participating in a 
vessel-based non-commercial fishing trip in the Main Hawaiian Islands 
Management Subarea in violation of Sec.  665.74.
    8. In subpart E, add a new Sec.  665.71 to read as follows:


Sec.  665.71  Hawaii restricted bottomfish species.

    Hawaii restricted bottomfish species means the following species:

----------------------------------------------------------------------------------------------------------------
                            Common Name                              Common Name          Scientific Name
----------------------------------------------------------------------------------------------------------------
                        Silver jaw jobfish                                     Lehi           Aphareus rutilans
                       Squirrelfish snapper                                 Ehu              Etelis carbunculus
                         Longtail snapper                                 Onaga                Etelis coruscans
                           Pink snapper                               Opakapaka     Pristipomoides filamentosus
                              Snapper                                  Kalekale        Pristipomoides sieboldii
                              Snapper                                    Gindai          Pristipomoides zonatus
                             Sea bass                                Hapu'upu'u             Epinephelus quernus
----------------------------------------------------------------------------------------------------------------


[[Page 6108]]

    9. In subpart E, add a new Sec.  665.72 to read as follows:


Sec.  665.72  Total Allowable Catch (TAC) limit.

    (a) TAC limits will be set annually for the fishing year by NMFS, 
as recommended by the Council, based on the best available scientific, 
commercial, and other information, and taking into account the 
associated risk of overfishing.
    (b) The Regional Administrator shall publish a notice indicating 
the annual Total Allowable Catch limit in the Federal Register by 
August 31 of each year, and shall use other means to notify permit 
holders of the TAC limit for the year.
    (c) When the TAC limit specified in this section is reached, or 
projected to be reached based on analyses of available information, the 
Regional Administrator shall publish a notice to that effect in the 
Federal Register and shall use other means to notify permit holders. 
The notice will include an advisement that the fishery will be closed 
beginning at a specified date, which is not earlier than 14 days after 
the date of filing the closure notice for public inspection at the 
Office of the Federal Register, until the end of the fishing year in 
which the TAC is reached.
    (d) On and after the date specified in Sec.  665.72(c), no person 
may fish for or possess any Hawaii Restricted Bottomfish Species, as 
specified in Sec.  665.71, in the Main Hawaiian Islands Management 
Subarea, except as otherwise allowed by law.
    (e) On and after the date specified in Sec.  665.72(c), Hawaii 
Restricted Bottomfish Species, as specified in Sec.  665.71, harvested 
from the Main Hawaiian Islands Management Subarea, may not be harvested 
commercially.
    (f) The Hawaii restricted bottomfish species TAC limit for the 
2007-08 fishing year is 178,000 lb (80,740 kg).
    10. In subpart E, add a new Sec.  665.73 to read as follows:


Sec.  665.73  Closed seasons.

    (a) All fishing for, or possession of, any Hawaii Restricted 
Bottomfish Species as specified in Sec.  665.71, is prohibited in the 
Main Hawaiian Islands Management Subarea during May 1, 2008, through 
August 31, 2008, inclusive. All such species possessed in the Main 
Hawaiian Islands Management Subarea are presumed to have been taken and 
retained from that Subarea, unless otherwise demonstrated by the person 
in possession of those species.
    (b) Hawaii Restricted Bottomfish Species, as specified in Sec.  
665.71, may not be sold or offered for sale during May 1, 2008, through 
August 31, 2008, inclusive, except as otherwise authorized by law.
    (c) Fishing for, and the resultant possession or sale of, Hawaii 
Restricted Bottomfish Species by vessels legally registered to Mau 
Zone, Ho'omalu Zone, or PRIA bottomfish fishing permits and conducted 
in compliance with all other laws and regulations, is exempted from 
paragraphs (a) and (b) of this section.
    11. Under subpart E, add a new Sec.  665.74 to read as follows:


Sec.  665.74  Non-commercial bag limits.

    No more than a total of five fish of all species combined, 
identified as Hawaii Restricted Bottomfish Species as specified in 
Sec.  665.71, may be harvested, possessed, or landed by any individual 
participating in a vessel-based non-commercial fishing trip in the Main 
Hawaiian Islands Management Subarea.
[FR Doc. E8-1900 Filed 1-31-08; 8:45 am]
BILLING CODE 3510-22-S


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