Daily Rules, Proposed Rules, and Notices of the Federal Government


National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 0811281532-81534-01]

RIN 0648-XL64

Fisheries in the Western Pacific; Bottomfish and Seamount Groundfish Fisheries; 2008-09 Main Hawaiian Islands Bottomfish Total Allowable Catch

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed specifications; request for comments.
SUMMARY: NMFS proposes to establish a total allowable catch (TAC) for the 2008-09 fishing year of 241,000 lb (109,316 kg) of Deep 7 bottomfish in the main Hawaiian Islands (MHI). The TAC would be set in accordance with regulations established to support long-term sustainability of bottomfish in the Hawaiian Archipelago.
DATES: Comments must be received by December 26, 2008.
ADDRESSES: * Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking;or

* 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 towww.regulations.govwithout change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the commenter may be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (if you wish to remain anonymous, enter "NA" in the required name and organization fields). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

Copies of the Fishery Management Plan for Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (Bottomfish FMP) and related Environmental Impact Statement are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or

An environmental assessment (EA), including a Regulatory Impact Review (RIR), was prepared that describes the impact on the human environment that would result from this proposed action. Copies of the EA are available, or William L. Robinson (seeADDRESSES).

FOR FURTHER INFORMATION CONTACT: Toby Wood, NMFS PIR Sustainable Fisheries, 808-944-2234.

ThisFederal Registerdocument is also accessible at the Office of the Federal Register Web

The bottomfish fishery in Federal waters around Hawaii is managed under the Bottomfish FMP, developed by the Council and implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing bottomfish fishing by U.S. vessels in accordance with the Bottomfish FMP appear at 50 CFR part 665 and subpart H of 50 CFR part 600. Currently, bottomfish stocks in the Hawaiian Archipelago are not experiencing overfishing, and efforts to minimize local stock depletion in the MHI Management Subarea are precautionary. The MHI Management Subarea refers to the portion of U.S. EEZ around the Hawaiian Archipelago lying to the east of 161 20' west longitude. For all the bottomfish TACs considered in this specification, the estimated risk of overfishing in the Hawaiian Archipelago is zero.

On April 4, 2008, NMFS published a final rule (73 FR 18457) that implemented Bottomfish FMP Amendment 14. The provisions established under Amendment 14 include a non-commercial bag limit of five Deep 7 bottomfish (all species combined) per fisherman per trip. Amendment 14 also established a requirement for NMFS to set an annual TAC limit for Deep 7 bottomfish in the MHI, based on a recommendation from the Council, considering the best available scientific, commercial, and other information, and taking into account the associated risk of overfishing. The Deep 7 bottomfish 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).

When the TAC for the year is projected to be reached, NMFS will close the non-commercial and commercial fisheries until the end of the fishing year (August 31). During a fishery closure for Deep 7 bottomfish, no person may fish for, possess, or sell any of these fish in the MHI, except as otherwise authorized by law. Specifically, fishing for, and the resultant possession or sale of, Deep 7 bottomfish by vessels legally registered to Mau Zone, Ho omalu Zone, or Pacific Remote Island Areas bottomfish fishing permits, and conducted in compliance with all other laws and regulations, are not affected by the closure. There is no prohibition on fishing for or selling other non-Deep 7 bottomfish species throughout the year.

Last year (2007-08 fishing year), the Council recommended and NMFS implemented a Deep 7 bottomfish TAC of 178,000 lb (80,739 kg) (73 FR 18718; April 7, 2008). Monitoring of the commercial fishery indicated that the MHI bottomfish fishery harvested the TAC in April 2008. In accordance with the regulations at § 665.72, and as a result of reaching the TAC, NMFS published a temporary rule closing the non-commercial and commercial bottomfish fisheries on April 16, 2008 (73 FR 18717; April 7, 2008), and a related correction notice (73 FR 20001; April 14, 2008).

At its 142nd meeting in Honolulu in June 2008, the Council learned that new data were available for the bottomfish fishery that would be integral to the analysis performed by NMFS to update the bottomfish stock assessment. An updated stock assessment provides the best scientific basis upon which the Council can make its recommendation on a TAC, as required by regulation § 665.72(a) and Magnuson-Stevens Act National Standard 2. Because the updated bottomfish stock assessment was not available at the June 2008 meeting, the Council did not recommend a 2008-09 TAC. Instead,based on a recommendation from the Council, NMFS delayed opening the fishery until November 15, 2008 (73 FR 50572; August 27, 2008).

An updated Hawaiian bottomfish stock assessment was available at the Council's 143rd meeting in October 2008. After consideration of the assessment, risks of overfishing, recommendations from the Council's Scientific and Statistical Committee, and input from the public, the Council recommended a TAC for the 2008-09 MHI bottomfish fishing year of 241,000 lb (109,316 kg). NMFS will consider the Council's recommendation, potential environmental and economic affects of the proposed TAC, and comments received during the public comment period for this proposed specification, and will announce the final TAC specification in theFederal Register.

Regardless of the final TAC specification, all other management measures will continue to apply in the MHI bottomfish fishery. The MHI bottomfish fishery re-opened on November 15, 2008, and will continue until August 31, 2009, unless the fishery is closed prior to August 31 as a result of the TAC being reached.


Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator for Fisheries has determined that this proposed specification is consistent with the Bottomfish FMP, other provisions of the Magnuson Stevens Act, and other applicable laws, subject to further consideration after public comment.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed specification, 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 in the preamble to this specification. This specification does not duplicate, overlap, or conflict with other Federal rules. There are no reporting, recordkeeping, or other compliance requirements in the proposed specification. There are no disproportionate economic impacts from this specification based on home port, gear type, or relative vessel size. The analysis follows:

Description and Estimate of the Number of Small Entities to which the Specification Applies

There are approximately 380 vessels engaged in the commercial harvest of MHI bottomfish. Based on 2000-03 data, the aggregate gross receipts for these vessels were $1.47 million, with average gross receipts per vessel of $3,870 annually. However, 318 of these vessels recorded revenues of under $2,175. In general, the relative importance of MHI bottomfish 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 has not been examined, to date. The majority of the 380 vessels comprising the affected universe were under 30 ft (9.1 m) in length overall. Based on all available information, NMFS has determined that all vessels in the current fishery are small entities under the Small Business Administration definition of a small entity, i.e., they are engaged in the business of fish harvesting, are independently owned or operated, are not dominant in their 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 for the 2008-09 Fishing Year

Alternative 1(No Action). The MHI Deep 7 bottomfish TAC would be set at 178,000 lb (80,739 kg). According to the latest stock assessment, this TAC represents zero percent risk of bottomfish overfishing in either the Hawaiian Archipelago or the MHI Management Subarea. With the fishing year opening on November 15, 2008, it is projected that the MHI Deep 7 bottomfish TAC under this alternative may be reached in May of 2009 given the most recent average catch efforts.

Alternative 2.The MHI Deep 7 bottomfish TAC would be set at 227,000 lb (102,965 kg). This TAC represents zero percent risk of archipelagic overfishing and a 25 percent risk of overfishing in the MHI Management Subarea during 2008-09. It is projected that the fishing year under this alternative may last until July 2009.

Alternative 3(Preferred). The MHI Deep 7 bottomfish TAC would be set at 241,000 lb (109,316 kg). This TAC represents zero risk of archipelagic overfishing and an approximate 40 percent risk of MHI Management Subarea bottomfish overfishing in the 2008-09 fishing year. The fishing year under this alternative is projected to remain open until late July 2009.

Alternative 4.The MHI Deep 7 bottomfish TAC would be set at 249,000 lb (112,945 kg). This TAC represents no risk of archipelagic overfishing, while representing an approximate 50 percent risk of overfishing of MHI Management Subarea bottomfish in 2008-09. The fishing year under this alternative is projected to remain open until early August 2009.

Alternative 5.The MHI Deep 7 bottomfish TAC would be set at 271,000 lb (122,924 kg). This TAC represents zero risk of archipelagic overfishing while representing about a 75 percent chance of overfishing MHI Management Subarea bottomfish stocks. The fishing year under this alternative is projected to last through August 2009, and, therefore, may not close at all under this alternative.

Economic Impacts of the Specification

Using the same TAC as the 2007-08 bottomfish fishing year, Alternative 1 would have the TAC specified as 178,000 lb (80,739 kg) of MHI Deep 7 bottomfish, totaling $917,000 in gross revenues (based on a 2008 estimated average price of $5.15 per lb or $11.35 per kg) for the 2008-09 fishery. This would represent an average of $2,412 per vessel, assuming all 380 commercially licensed MHI bottomfish vessels were equally active. This status quo alternative is projected to have a zero percent risk of overfishing associated with the Deep 7 bottomfish TAC based on the most recent stock and risk assessments.

Alternatives 2-5 would all have positive short-term economic benefits to vessel owners based on an increase in revenues associated with greater TACs. At 2008 average prices for bottomfish, a proposed Deep 7 MHI bottomfish TAC of 271,000 lb (122,924 kg) for Alternative 5 would yield $1.4 million in gross revenues which is 52 percent more than the estimated revenues projected under Alternative 1 (i.e., status quo). However, in comparison to the other alternatives considered for this action, Alternative 5 represents the highest risk (est. 75 percent) of bottomfish overfishing to occur in the MHI during 2008-09.

A more conservative Deep 7 MHI bottomfish TAC would be adopted under Alternatives 2, 3, or 4, with the associated risk of overfishing MHI Deep 7 bottomfish being 25, 40, and 50 percent, respectively, during 2008-09. Alternative 2 would have the Deep 7 MHI bottomfish TAC specified as 227,000 lb (102,965 kg) during the 2008-09 fishing year. Total gross revenues for the MHI bottomfish fleet under Alternative 2 is estimated to be around $1.17 million, or averaged at $3,000 per vessel using an average bottomfish price of $5.15 per lb ($11.35 per kg). This represents an economic benefit to fishermen with a 28 percent increase in potential revenues compared to the status quo. Alternative 2 is associated with a 25 percent risk of MHI bottomfish overfishing in 2008-09, given the most recent stock assessment. Alternative 3, the Preferred Alternative, would have the Deep 7 MHI bottomfish TAC specified as 241,000 lb (109,316 kg) which is associated with an estimated risk of overfishing the MHI bottomfish stocks of 40 percent (2008-09). The expected total fleet-wide gross revenues associated with Alternative 3 would be around $1.24 million, or $3,266 per vessel, which would be a 35 percent increase in revenues over the status quo and a six percent marginal increase over Alternative 2. Alternative 4 would have the TAC specified as 249,000 lb (112,945 kg), which is associated with a 50 percent risk of overfishing MHI bottomfish in 2008-09 given the latest stock assessment. Total gross revenues under this alternative would be about $1.28 million ($3,375 per vessel), which is a 40 percent increase in revenues compared to the status quo (Alternative 1), and a 3.3 percent marginal increase in revenues compared with the Preferred Alternative 3.

This analysis assumes that only commercial MHI Deep 7 landings are counted toward the 2008-09 TAC. Althoughdata reporting requirements for non-commercial fishing have been established, it is expected that the non-commercial information will not be developed enough to generate meaningful projected estimates of 2008-09 non-commercial harvest.

Ceasing of Business Operations

The decision to cease fishing for bottomfish would depend on the ability of vessel owners to cover variable costs of operations in the short run. If costs of fuel and food remain at higher than normal levels, more vessels than normal would be expected to exit the fishery, especially in years when the TAC was low. In addition, as is pointed out in Amendment 14, low TACs could propel the fishery toward a “race for the fish,” putting downward pressure on prices and upward pressure on fuel and food costs, resulting in earlier than expected closures and larger number of vessels exiting the fishery prematurely.

This action is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.


16 U.S.C. 1801et seq.

Dated: December 4, 2008. James W. Balsiger, Acting Assistant Administrator For Fisheries, National Marine Fisheries Service.