E7-20228. Fisheries in the Western Pacific; Precious Corals Fisheries

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

Black coral resources in the Au'au Channel, Hawaii, have declined, possibly due to fishing pressure and an alien invasive soft coral. Current fishing regulations require minimum sizes for the harvest of living black coral colonies of 48 inches (122 cm) in height or one inch (2.54 cm) in stem diameter. Current regulations also exempt certain fishermen from the minimum stem diameter requirement, allowing the harvest of black coral with a smaller 3/4 inch (1.91 cm) stem diameter by anyone who had reported black coral harvests to the State of Hawaii within the five years prior to April 17, 2002. This final rule removes that exemption to reduce the impacts of fishing on Au'Au Channel black coral resources.

DATES:

This final rule is effective November 14, 2007.

ADDRESSES:

Copies of the fishery management plan (FMP) and the regulatory amendment may be obtained from Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council (Council), 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, or via the World Wide Web at www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT:

Bob Harman, NMFS PIR, [phone].

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is also accessible via the World Wide Web at the Office of the Federal Register: www.gpoaccess.gov/​fr/​index.html.

Background

The fishery for black coral in Federal waters around Hawaii is managed under the Fishery Management Plan for Precious Corals of the Western Pacific Region (FMP). The FMP was developed by the Council under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Regulations implementing the FMP appear at subpart F of 50 CFR part 665 and subpart H of 50 CFR part 600.

Black corals are slow-growing and have low rates of natural mortality and recruitment. Natural populations are relatively stable and a wide range of age classes is generally present. These life-history characteristics (longevity and many year classes) have two important consequences with respect to exploitation: the response of the population to over-harvesting is drawn out over many years, and, because of the longevity of individuals and the associated slow rates of turnover in the populations, a long period of reduced fishing effort is required to restore the ability of the stock to produce at the maximum sustainable yield (MSY) if a stock has been over-exploited for several years.

Since the harvesting of Hawaii black coral began in the late 1950s, generally fewer than 10 fishermen have been active in the fishery at any time. Participation has probably been limited by the relatively small market for black coral in Hawaii, and by the dangers of fishing operations--harvesting is done by hand using scuba at depths as great as 230 ft (70 m). Most of the catch comes from the Au'Au Channel, south of Maui. Three commercial black coral harvesters are currently permitted by the State of Hawaii. Nonetheless, landings of black coral have increased over the past two decades, and landings from 1999-2005 were about 55,000 lb (25,000 kg), which is about 58 percent of the total catch since 1985.

Black coral biomass in the Au'Au Channel decreased almost 25 percent between 1976 and 2001. The causes of the reduction in biomass appear to be a combination of fishing pressure and the invasion of Carijoa riisei, an alien species of snowflake coral that smothers black coral colonies. The purpose of this final rule is to reduce the impacts of fishing on black coral resources in Federal waters of the Au'Au Channel. Surveys in 2006 suggest that the impact of C. riisei has stabilized or even improved, and monitoring will continue.

Current regulations at 50 CFR 665.86(b)(1) contain minimum size requirements for the harvest of black coral colonies in the Exclusive Economic Zone (EEZ) around Hawaii. Colonies must be 48 inches (122 cm) tall or one inch (2.54 cm) in stem diameter. The stem measurement must be made no closer than one inch (2.54 cm) from the top of the living holdfast. Current regulations also contain a provision at 50 CFR 665.86(b)(2) that exempts certain fishermen from the minimum stem diameter requirement, allowing the harvest of black coral with a 3/4 inch (1.91 cm) stem diameter by anyone who reported harvests to the State of Hawaii within the five years prior to April 17, 2002. In response to concerns about the declining black coral resource, the Council recommended that NMFS amend the regulations governing the minimum size requirements for the black coral fishery in Hawaii to remove the stem diameter exemption. The Council prepared a regulatory amendment that contains background information on the issue, biological and economic impact analyses, and proposed regulatory changes. The revised regulations require that all harvested living black coral have a stem diameter of one inch (2.54 cm) or a height of 48 inches (122 cm).

Comments and Responses

On August 8, 2007, NMFS published in the Federal Register a proposed rule (72 FR 44074). The public comment period ended on September 6, 2007. NMFS received two public comments generally supporting the proposed rule.

Changes to the Proposed Rule

No changes to the proposed rule were made in this final rule.

Classification

The Regional Administrator, NMFS Pacific Islands Region, determined that this regulatory amendment is necessary for the conservation and management of the precious coral fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

There are no recordkeeping or reporting requirements associated with this final rule.

Consistent with section 604 of the Regulatory Flexibility Act, NMFS prepared a final regulatory flexibility analysis (FRFA) for the regulatory amendment, as described below.

NMFS prepared this FRFA for the final rule. This FRFA incorporates the initial regulatory flexibility analysis (IRFA). The Classification section in the proposed rule included a detailed summary of the analysis contained in the IRFA, and that discussion is not repeated in its entirety here. The need for and the objectives of the action are explained in the preambles to the proposed rule and final rule, and are not repeated here. No comments were received on the IRFA, or on the economic impacts of the proposed rule.

There are three permitted vessels in the fishery, but only two have reported landings in Hawaii. These vessels are considered to be small entities under the Small Business Administration's 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 their field of operation, and have average annual gross receipts not in excess of $4 million. There are no disproportionate impacts between vessels participating in the fishery based on home port, vessel size, or gear type. The preferred Alternative 3, which would remove the exemption from minimum size requirements, and Alternative 6, which would implement a 5-year moratorium on black coral landings, would cause adverse economic impacts to the three entities that comprise the current fishery because they would not be allowed to harvest black coral in the way they are now allowed under the current management regime, thus potentially limiting their landings.

Because Federal waters account for approximately 15 percent of total landings, black coral harvesters would be impacted by an estimated reduction of approximately 15 percent gross receipts under Alternative 6, and could be impacted by as much as a 15 percent reduction in gross receipts under the preferred Alternative 3. A 15 percent reduction would occur only if all corals currently harvested in Federal waters are harvested under the base requirement exemption. Otherwise, gross receipt reductions of 0 to 15 percent would occur under the preferred alternative depending upon the relative contribution of currently exempted products to the overall harvest. Excluding the no-action Alternative 1, which represents no change in net benefits to the affected small entities, all other alternatives considered (and described in detail in the IRFA accompanying the proposed rule) could yield potential beneficial impacts to the fishery because they eliminate certain size requirements for black coral harvest. However, these alternatives were not chosen since they would not be consistent with the objectives of the FMP and the MSA in that they would weaken the regulatory protection to black corals resources by removing size restrictions.

Small Business Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders was prepared that also serves as a small entity compliance guide, which will be sent to all holders of permits for the precious coral fishery. Copies of the small business compliance guide are available from William L. Robinson, NMFS Pacific Islands Region, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814, or from the NMFS PIRO web site www.fpir.noaa.gov.

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: October 9, 2007.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 665 is amended as follows:

PART 665—FISHERIES IN THE WESTERN PACIFIC

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

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

2. In § 665.86, paragraph (b) is revised to read as follows:

§ 665.86

Size restrictions.

* * * * *

(b) Black coral. Live black coral harvested from any precious coral permit area must have attained either a minimum stem diameter of 1 inch (2.54 cm), or a minimum height of 48 inches (122 cm).