E7-10379. Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Reporting Requirements and Conservation Measures

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This action implements new reporting and conservation measures under the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The purpose of this action is to prevent interactions between CPS fisherman and southern sea otters, as well as establish methods for fishermen to report these occurrences when they occur. These reporting requirements and conservation measures require CPS fishermen/vessel operators to employ avoidance measures when southern sea otters are present in the area they are fishing and to report any interactions that may occur between their vessel and/or fishing gear and sea otters.

DATES:

Effective June 29, 2007, except for § 660.520 which contains information collection requirements that have not been approved by OMB. NOAA will publish a document in the Federal Register announcing the effective date.

ADDRESSES:

Copies of Amendment 11 and its Environmental Assessment/Regulatory Impact Review may be obtained from the Southwest Regional Office by contacting Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this action may be submitted to the Southwest Regional Office and by e-mail to [e-mail] or fax to [phone]

FOR FURTHER INFORMATION CONTACT:

Joshua B. Lindsay, Southwest Region, NMFS, [phone].

SUPPLEMENTARY INFORMATION:

The CPS FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), regulates commercial fishing for CPS in the Exclusive Economic Zone (EEZ) off the West Coast; 3-200 nautical miles off the coastlines of Washington, Oregon, and California. This action implements new reporting requirements and conservation measures under the CPS FMP. Southern sea otters are listed as threatened under the Endangered Species Act (ESA) and depleted under the Marine Mammal Protection Act (MMPA), providing them strict protection under these laws. Known interactions between CPS fishing operations and southern sea otters are extremely rare. Data gathered from this action will prove valuable in determining whether such interactions are as rare as believed or whether stronger measures are necessary to ensure protection of this species. This action stems from a biological opinion (BO) issued by the U.S. Fish and Wildlife Service (USFWS) regarding the implementation of Amendment 11 to the CPS FMP.

Background

In accordance with the regulations implementing the ESA, NMFS initiated an ESA section 7 consultation with the USFWS regarding the possible effects of implementing Amendment 11 (71 FR 36999) to the CPS FMP. USFWS determined that formal consultation was necessary on the possible effects to the threatened southern sea otter. USFWS completed a biological opinion (BO) for this action and concluded that it was not likely to jeopardize the continued existence of the southern sea otter. The requirements and conservation measures put forth in this action stem from this BO and are an attempt to provide further conservation efforts for southern sea otters. These reporting requirements and conservation measures require all CPS fishermen and vessel operators to employ avoidance measures when sea otters are present in the fishing area and to report any interactions that may occur between their vessel and/or fishing gear and otters.

Specifically, these new measures and regulations are:

1. CPS fishing boat operators and crew are prohibited from deploying their nets if a southern sea otter is observed within the area that would be encircled by the purse seine.

2. If a southern sea otter is entangled in a net, regardless of whether the animal is injured or killed, such an occurrence must be reported within 24 hours to the Regional Administrator, NMFS Southwest Region.

3. While fishing for CPS, vessel operators must record all observations of otter interactions (defined as otters within encircled nets or coming into contact with nets or vessels, including but not limited to entanglement) with their purse seine net(s) or vessel(s). With the exception of an entanglement, which will be initially reported as described in #2 above, all other observations must be reported within 20 days to the Regional Administrator.

When contacting NMFS after an interaction, fishermen are required to provide information regarding the location, specifically latitude and longitude, of the interaction and a description of the interaction itself. If available, location information should also include: Water depth; distance from shore; and, relation to port or other landmarks. Descriptive information of the interaction should include: whether or not the otters were seen inside or outside the net; if inside the net, had the net been completely encircled; did contact occur with net or vessel; the number of otters present; duration of interaction; otter's behavior during interaction; and, measures taken to avoid interaction.

For further background information on this action please refer to the preamble of the proposed rule (71 FR 70941).

Comments and Responses

NMFS received two public comments on the proposed rule. These comments are addressed here:

Comment 1: One comment stated that due to the strict protections provided to southern sea otters by the MMPA, incidental take of southern sea otters could not be authorized under the ESA and that it was necessary for NMFS to amend the proposed rule to reflect this. The comment also stated that self-reporting has not always proved effective with regard to marine mammal interactions with fisheries and that this rule should include a mandatory neutral observer program. However, to the extent that self-reporting would be required, that it be made as easy as possible for the fishermen.

Response: This final rule does not authorize the take of southern sea otters within CPS fisheries. The purpose of this final rule is to further protect this threatened species. Sea otters have not been documented to have been injured or killed in CPS fisheries and due to the very small overlap of CPS fisheries in the EEZ off the West Coast and the distribution of southern sea otters, the likelihood that such an event will occur is low. However, the BO prepared by USFWS determined that the possibility of interactions between sea otters and the fishery does exist. Therefore, NMFS decided that the requirements recommended by USFWS to reduce possible interactions with, and provide protection for, southern sea otters, would be a prudent conservation measure. NMFS currently places observers on CPS vessels operating in the Monterey Bay region and will continue to do so.

Comment 2: The commenter stated that after an interaction it would be unnecessary for the fisherman to provide location information other than latitude and longitude. The commenter also suggests that the requirement to report non-entanglement interactions is unclear and unnecessary.

Response: Under § 660.520(a)(3), fishermen will only be required to provide the latitude and longitude of where the interaction took place. NMFS asks that other location information that is readily available be provided as well, but it is not required. With regards to the reporting of non-entanglement interactions, it is not the intent of this final rule to require fishermen to report casual observations of sea otters. This action only requires fishermen to report when sea otters occur within encircled nets or come into contact with fishing gear or the vessel. This information could prove valuable to both fishermen and/or the conservation of sea otters as it will establish a record of the presence or absence of sea otter interactions. If interactions are occurring, location information will be important in determining areas where further conservation efforts may be needed.

No changes were made to the regulatory text from the proposed rule.

Classification

The Administrator, Southwest Region, NMFS, determined that this action is necessary for the conservation and management of the CPS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public reporting burden for this otter interaction requirement is estimated to average 10 minutes per individual per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to [e-mail] or fax to [phone].

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a 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.

This final 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 during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 660

• Administrative practice and procedure
• American Samoa
• Fisheries
• Fishing
• Guam
• Hawaiian Natives
• Indians
• Northern Mariana Islands
• Reporting and recordkeeping requirements

Dated: May 23, 2007.

Samuel D. Rauch III

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as follows:

PART 660—FISHERIES OFF WEST COAST STATES AND IN THE WESTERN PACIFIC

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

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

2. In § 660.505, paragraph (n) is added to read as follows:

§ 660.505

Prohibitions.

(n) When fishing for CPS, deploy a net if a southern sea otter is observed within the area that would be encircled by the purse seine net.

3. Section 660.520 is added to read as follows:

§ 660.520

Reporting requirements.

(a) Otter interaction. (1) If a southern sea otter is entangled in a net, regardless of whether the animal is injured or killed, the vessel operator must report this interaction within 24 hours to the Regional Administrator.

(2) While fishing for CPS, vessel operators must record all observations of otter interactions (defined as otters within encircled nets or coming into contact with nets or vessels, including but not limited to entanglement) with their purse seine net(s) or vessel(s). With the exception of an entanglement, which must be initially reported as described in paragraph (a)(1)of this section, all other observations must be reported within 20 days to the Regional Administrator.

(3) When contacting NMFS after an interaction, vessel operators must provide the location (latitude and longitude) of the interaction and a description of the interaction itself. If available, location information should also include water depth, distance from shore, and relation to port or other landmarks. Descriptive information of the interaction should include: whether or not the otters were seen inside or outside the net; if inside the net, had the net been completely encircled; whether any otters came in contact with either the net or the vessel; the number of otters present; duration of interaction; the otter's behavior during interaction; measures taken to avoid interaction.

(b) [Reserved]