2024-16906. Fisheries off West Coast States; the Highly Migratory Species Fishery; El Nino Pacific Loggerhead Conservation Area Closure

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Department of Commerce

National Oceanic and Atmospheric Administration

1. 50 CFR Part 660
2. [Docket No. 031125294-4091-02; RTID 0648-XE041]

AGENCY:

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

ACTION:

Temporary rule; reopening of closure.

SUMMARY:

NMFS is reopening the Pacific Loggerhead Conservation Area (LCA) closure that became effective on June 1, 2024, because the sea surface temperatures (SSTs) in the Southern California Bight (SCB) for the months of May and June 2024 indicate that SSTs have returned to normal or below normal and that El Niño conditions are no longer present in the SCB. The LCA prohibits fishing with large-mesh drift gillnet (DGN) gear (≥14 inches mesh) off the coast of southern California east of the 120° W meridian from June 1, 2024, through August 31, 2024. Based on recent observations of SSTs in the SCB along with the Climate Prediction Center (CPC) report related to changing El Niño conditions, NMFS has determined that reopening the area is warranted.

DATES:

Effective 12:01 a.m., Pacific Daylight Time, on August 1, 2024.

FOR FURTHER INFORMATION CONTACT:

Chris Fanning, West Coast Region (WCR), NMFS, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

The DGN fishery is managed under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (50 CFR part 660, subpart K) and occurs off the coast of California. NMFS regulations state that “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 Niño event off the coast of southern California” (50 CFR 660.713(c)(2)). This area, which overlaps with the SCB, is referred to in the regulations as the “Pacific loggerhead conservation area” or “LCA.”

Under 50 CFR 660.713(c)(2)(ii), the Assistant Administrator (AA) is to rely on information developed by NOAA offices (the CPC and the West Coast Office of the Coast Watch program) to make the determination that an El Niño event is forecasted or occurring off southern California. The AA is to use monthly SST charts to determine whether there are warmer-than-normal SSTs off southern California “during the months prior to the closure months for years in which an El Niño event has been declared” by the CPC. Specifically, the AA is to use SST data from the second and third months prior to the month of closure. Thus, to make a determination for a closure to begin in June, the AA used data from March and April.

These regulations protect loggerhead sea turtles, specifically the North Pacific Loggerhead Distinct Population Segment, which are listed as endangered under the Endangered Species Act. The regulations initially were implemented to address a reasonable and prudent alternative included in NMFS' 2000 biological opinion for this fishery. The current biological opinion (2023) analyzed maintaining the closed area as a management measure in the U.S. West Coast Fishery Management Plan for Highly Migratory Species.

On May 9, 2024, the CPC issued an El Niño Advisory. Under the CPC's El Nino/Southern Oscillation (ENSO) diagnostic system, an El Niño Advisory is issued when El Niño conditions are observed and expected to continue. NMFS staff reviewed the SST anomalies in the SCB during March and April of 2024, relying on SST maps available through NOAA's Coast Watch program (for details see https://coastwatch.pfeg.noaa.gov/​erddap/​index.html). These maps indicated that SSTs were above normal in the SCB. NMFS determined that El Niño conditions were occurring off southern California based on SSTs that were warmer than normal during March and April 2024, consistent with regulations at 50 CFR 660.713(c)(2)(ii), and implemented the LCA on June 1, 2024 (89 FR 47106).

Per regulations at 50 CFR 660.713(c)(2)(iii), if SSTs return to normal or below normal during a closure period, the AA may reopen the fishery after publishing a Federal Register notice announcing that El Niño conditions are no longer present in the SCB.

The CPC report on June 13, 2024, indicated a transition from El Niño to ENSO-neutral/La Nina Watch conditions based on cooler SSTs observed and a forecasted continued cooling trend in the Pacific Ocean. The most recent CPC report on July 11, 2024, indicates ENSO-neutral is expected to continue for the next several months, with La Niña favored to emerge during August-October (70 percent chance) and persist into the Northern Hemisphere winter 2024-2025 (79 percent chance during November-January). Additionally, SST data summarized and available on the West Coast Office of the Coast Watch program website indicates cooler than normal temperatures in the SCB were reported in May, June, and July.

Based on this information, NMFS has determined that El Niño conditions are no longer present and that we may reopen the LCA under the regulations. NMFS has determined that re-opening the LCA is warranted to increase fishing opportunities and lessen regulatory burden on vessels' time-area access, while complying with legal and regulatory requirements to ensure the conservation of loggerhead sea turtles.

The LCA closure prohibits DGN fishing in the LCA through August 31, 2024. Fishing with DGN gear also is prohibited within 75 nautical miles of the mainland shore through August 14 under 50 CFR 660.713(d), which includes much of the LCA. Thus, this closure primarily affects the DGN fishery during the last two weeks in August, when fishing with DGN gear would otherwise be open in much of the LCA.

Most DGN vessels typically commence fishing on or near August 15, depending on various factors including when swordfish are present on the fishing grounds in commercially viable quantities. Currently, one vessel is present in the area immediately outside the LCA. We anticipate that up to seven vessels may start fishing in August.

Classification

This action is allowed by current regulations at 50 CFR 660.713 and is exempt from Office of Management and Budget review under Executive Order 12866.

NMFS finds good cause to waive the requirement to provide prior notice and an opportunity for public comment for this action pursuant to the authority set forth at 5 U.S.C. 553(b)(B). Notice and comment procedures for this action are impracticable and contrary to the public interest. Specifically, the regulations allow for lifting the DGN fishing restrictions in response to updated weather information. The most recent El Niño status determination occurred on July 11, 2024, and regulations provide that the AA may publish a Federal Register notice announcing that El Niño conditions are no longer present off the coast of southern California and may terminate the closure prior to August 31. The closure period began on June 1 and restricts fishing for swordfish and sharks within a defined geographic area. Relieving this restriction will allow fishers access to the area while swordfish and other marketable highly migratory species are available on the fishing grounds. Delaying this action for 30 days would prevent active fishers from accessing some of the fishing grounds in the LCA. Given the change in conditions, we expect that loggerhead turtles leave the LCA with the cooler temperatures and that there is little likelihood of turtle entanglements or interactions in the area. Therefore, we find that there is good cause to waive the 30-day notice and opportunity for public comment requirements.

The APA excepts from the 30-day delay in effective date a rule that “grants or recognizes an exception or relieves a restriction” (5 U.S.C. 553(d)(1)). This rule relieves a restriction on DGN fishing in the LCA, and the 30-day delay in effective date therefore is not required.

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

Dated: July 26, 2024.

Lindsay Fullenkamp,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.