E7-1450. Fisheries Off West Coast States; Highly Migratory Species Fisheries

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS issues a proposed rule to amend text in the regulations governing closures of the drift gillnet fishery in the Pacific Loggerhead Conservation Area during El Nino events under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). The regulation is necessary to avoid jeopardizing loggerhead sea turtles, which are listed as threatened under the Endangered Species Act, by clarifying the time period in which the area is to be closed and the methods that NMFS will use to determine if an El Nino event is occurring or forecast to occur. NMFS also proposes to correct an inaccurate cross-reference in the regulations governing special requirements for fishing activities to protect endangered sea turtles under the HMS FMP.

DATES:

Comments must be received by March 1, 2007.

ADDRESSES:

You may submit comments on this notice, identified by I.D. 112006A, by any of the following methods:

• E-mail: [e-mail]. Include the I.D. number in the subject line of the message.
• Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802 4213.
• Fax: [phone].

FOR FURTHER INFORMATION CONTACT:

Craig Heberer, Sustainable Fisheries Division, NMFS, 760-431-9440, ext. 303.

SUPPLEMENTARY INFORMATION:

On April 7, 2004, NMFS published a final rule to implement the HMS FMP (69 FR 18444) that included incorrect regulatory text in 50 CFR 660.713(c)(2) pertaining to the timing of a closure for the California/Oregon swordfish/thresher shark drift gillnet fishery during declared El Nino events and methods for determination and notification concerning an El Nino event. This proposed rule would amend that regulatory text.

The timing of the closure and methods for determining an El Nino event were published on December 16, 2003, as part of the Pacific loggerhead conservation area final rule (68 FR 69962) and codified at 50 CFR 223.206(d)(6)(ii) and (iii). The closure is necessary to avoid jeopardizing the continued existence of threatened loggerhead sea turtles. The final rule described the area of the closure, the time period in which the area is to be closed, the methods that NMFS will use to determine if an El Nino event is occurring or is going to occur, and how the Assistant Administrator will provide notification that an El Nino is occurring.

Less than 4 months after the correct language was codified, the HMS FMP final rule removed and reserved the regulation at 50 CFR 223.206(d)(6) and moved the text from that regulation to 50 CFR 660.713(c). Due to an oversight in drafting, § 223.206(d)(6)(iii), which detailed the process for the AA to make a determination that an El Nino is occurring or scheduled to occur, was not included in the HMS FMP final rule. Also, text at 660.713(c)(2)(ii) of the draft rule was mistakenly included in the HMS FMP final rule. This proposed rule would remove paragraph the text at 660.713(c)(2)(ii) and replace it with two paragraphs that are substantively identical to the original § 223.206(d)(6)(iii). the text of 223.206(d)(6)(iii) as originally intended with non-substantive revisions to the text for clarification. Furthermore, the corrections would make clear that any closure as a result of an El Nino event would occur from June 1 - August 31 only, as currently specified in 50 CFR 660.713(c)(2), rather than during the time periods of January 1 - January 15 and August 15 - August 31, as currently specified inconsistently in § 660.713 (c)(2)(ii). NMFS also proposes to amend regulatory text at 50 CFR 224.104(c) that describes special requirements for fishing activities to protect endangered sea turtles. The existing text refers to special prohibitions relating to sea turtles at § 223.206(d)(2)(iv). However, paragraph (d)(2)(iv) no longer exists in 50 CFR 223.206. The reference should be to § 223.206(d).

Classification

NMFS has determined that the proposed rule is consistent with the HMS FMP and preliminarily determined that this proposed rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Approximately 90 vessels were permitted under the HMS FMP to operate in the swordfish/thresher shark drift gillnet fishery off the U.S. West Coast in 2005. Of these 90 vessels, 42 actively fished in 2005. These vessels are considered small business entities and there should be no economic impact to them as a result of this action. The proposed action is a correction measure that will clarify conflicting regulatory instructions and provide U.S. fishermen with clear instructions on how to comply with Federal law. As described earlier, the corrections would make clear that any closure as a result of an El Nino event would occur from June 1 - August 31, as currently specified in 50 CFR 660.713(c)(2), rather than during the time periods of January 1 - January 15 and August 15 - August 31, as currently specified inconsistently in § (c)(2)(ii). The corrections would also include additional information describing how NOAA will determine whether an El Nino event is occurring and when El Nino conditions have ceased. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

List of Subjects

50 CFR Part 224

Administrative practice and procedure, Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements.

50 CFR Part 660

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: January 24, 2007.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 224 and 660 are proposed to be amended as follows:

PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES

1. The authority citation for part 224 continues to read as follows:

Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

2. In § 224.104, paragraph (c) is revised to read as follows:

§ 224.104

Special requirements for fishing activities to protect endangered sea turtles.

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(c) Special prohibitions relating to sea turtles are provided at § 223.206(d).

PART 660—FISHERIES OFF THE WEST COAST STATES

3. The authority citation for part 660 continues to read as follows:

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

4. In § 660.713, paragraph (c)(2) is revised to read as follows:

§ 660.713

Drift gillnet fishery.

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(c)(2) Pacific loggerhead conservation area. No person may fish with, set, or haul back drift gillnet gear in U.S. waters of the Pacific Ocean east of the 120° W. meridian from June 1 through August 31 during a forecasted, or occurring, El Nino event off the coast of southern California.

(i) Notification of an El Nino event. The Assistant Administrator will publish in the Federal Register a notification that an El Nino event is occurring, or is forecast to occur, off the coast of southern California and the requirement of a closure under this paragraph (c)(2). Furthermore, the Assistant Administrator will announce the requirement of such a closure by other methods as are necessary and appropriate to provide actual notice to the participants in the California/Oregon drift gillnet fishery.

(ii) Determination of El Nino conditions. The Assistant Administrator will rely on information developed by NOAA offices which monitor El Nino events, such as NOAA's Climate Prediction Center and the West Coast Office of NOAA's Coast Watch program, in order to determine whether an El Nino is forecasted or occurring for the coast of southern California. The Assistant Administrator will use the monthly sea surface temperature anomaly charts to determine whether there are warmer than normal sea surface temperatures present off of southern California during the months prior to the closure month for years in which an El Nino event has been declared by the NOAA Climate Prediction Center. Specifically, the Assistant Administrator, will use sea surface temperature data from the third and second months prior to the month of the closure for determining whether El Nino conditions are present off of southern California.

(iii) Reopening. If, during a closure as described within this paragraph (c)(2), sea surface temperatures return to normal or below normal, the Assistant Administrator may publish a Federal Register notice announcing that El Nino conditions are no longer present off the coast of southern California and may terminate the closure prior to August 31.

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