Proposed Rules. Temporary rule; emergency action; request for comments

1,833 words·~8 min read·/register/2006/03/22/06-2801

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BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 060317076-6076-01; I.D. 031606D] RIN 0648-AU41 Fisheries Off West Coast States and in the Western Pacific; Hawaii-based Shallow-set Longline Fishery AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; emergency action; request for comments. SUMMARY: This emergency rule removes the delay in effectiveness for closing the Hawaii-based shallow-set longline fishery as a result of interaction limits for sea turtles.

The intended effect of the emergency action is to afford enhanced protection for sea turtles via timely closure of the fishery. DATES: Effective March 20, 2006 until September 18, 2006. Comments must be received no later than 5 p.m., local time, on April 19, 2006. ADDRESSES: You may submit comments, identified by “AU41” by any of the following methods: • E-mail: *AU41Notice@noaa.gov* . Include “AU41” in the subject line of the message. • Federal e-Rulemaking Portal: *www.regulations.gov* .

Follow the instructions for submitting comments. • Mail: William L. Robinson, Administrator, Pacific Islands Region (PIR), NMFS, 1601 Kapiolani Blvd. 1110, Honolulu, HI 96814. In accordance with the Endangered Species Act, a Biological Opinion, dated February 23, 2004, was prepared for this fishery which operates under the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (FMP). Also, in accordance with NEPA, an Environmental Impact Statement

(EIS)dated March 30, 2001, and a Supplemental Environmental Impact Statement

(SEIS)dated March 5, 2004, were prepared for this fishery under the FMP. Copies of the Biological Opinion, EIS and SEIS are available from William L. Robinson (see ADDRESSES ). FOR FURTHER INFORMATION CONTACT: Robert Harman, PIR, phone: 808-944-2271. SUPPLEMENTARY INFORMATION: Electronic Access This emergency rule is accessible via the Internet at the Office of the **Federal Register** 's Web site at *www.gpoaccess.gov/fr/index.html* . NMFS manages the pelagic longline fishery for swordfish, tunas and related species in the western Pacific region, according to the FMP, prepared by the Western Pacific Fishery Management Council (WPFMC) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and at 50 CFR part 660. The regulations at § 660.33(b)(1) governing western Pacific pelagic fisheries establish maximum annual limits on the numbers of physical interactions that occur between longline fishing gear and sea turtles. These limits apply to physical interactions experienced by vessels registered under Hawaii longline limited-access permits while engaged in shallow-set longline fishing. There are calendar-year annual limits on physical interactions for two different turtle species, one for leatherback sea turtles set at 16, and one for loggerhead sea turtles set at 17. Interactions with turtles are monitored using data from scientific observers placed by NMFS aboard all vessels engaged in shallow-set longline fishing. NMFS is required to maintain 100 percent observer coverage in the Hawaii shallow-set longline fishery under the 2004 Biological Opinion. The current regulations at § 660.33(b)(2) prescribe that, as soon as the physical interaction limit for either of the two turtle species has been determined to have been reached in a given year, the shallow-set component of the Hawaii-based longline fishery must be closed by NMFS for the remainder of the calendar year, after giving permit holders at least seven days advance notice. Once that component of the fishery is closed, no vessel registered under a Hawaii longline limited-access permit may engage in shallow-set longline fishing north of the equator. Based on the best information available on fishing activity levels and anticipated turtle interaction rates at the time when the regulations were first implemented, the seven-day delay in effectiveness offered by the advance notice provision was thought to be adequate to provide notice of the fishery closure to vessels at sea. The delay was intended to give NMFS adequate time to notify permit holders and vessel operators of the closure, and to give operators adequate time to cease fishing and begin to return to port, while still affording adequate protection to sea turtles. Recent fishing activity levels and rates of turtle interactions have, however, been higher than expected, resulting in the fishery quickly approaching the limit on turtle interactions and the associated adverse impacts to turtle species. As of 4 P.M. Hawaii Standard Time (HST), March 17, 2006, the fishery reached the annual limit of 17 loggerhead turtles. To respond to the recent greater fishing activity and turtle interaction rates, and to prevent additional adverse impacts to turtles, immediate implementation of the fishery closure is required. Additionally, more effective means of providing notification to fishermen now exist. At the time when the current regulations were implemented, NMFS observers placed aboard longline vessels were not issued satellite telephones, and other communication methods were considered ineffective for notifying the fleet of a closure. Currently, however, NMFS observers carry satellite telephones and are placed on all vessels conducting shallow-set fishing trips. This makes immediate and effective communication possible between NMFS and each vessel at sea. When the fishery is closed, NMFS will notify the operator of each Hawaii-based vessel that is participating in the shallow-set fishery, directly via the communication devices available to the NMFS observer placed on the vessel, allowing for an immediate closure of the fishery, and resulting in enhanced protection of sea turtles. A notice of the fishery closure will also be published in the **Federal Register** and sent to each permit holder whose vessel is registered for use under a Hawaii limited access longline permit. At its 131st meeting on March 14, 2006, the WPFMC voted to request the Secretary of Commerce to initiate, via an emergency rule, a framework for the immediate closure of the Hawaii shallow-set longline fishery upon reaching the interaction limits for loggerhead or leatherback turtles. For the reasons stated above, this emergency rule meets NMFS policy guidelines for the use of emergency rules (62 FR 44421, August 21, 1997) because the emergency situation results from recently discovered circumstances, presents a serious management problem in the fishery, and the emergency rule realizes immediate benefits that outweigh the value of prior notice, opportunity for public comment, and deliberative consideration expected under the normal rulemaking process. NMFS issues this emergency rule, effective for not more than 180 days, as authorized by section 305(c) of the Magnuson-Stevens Act. The emergency rule may be extended for an additional 180 days, provided the public has had an opportunity to comment on the emergency rule and provided the WPFMC is actively preparing proposed regulations to address the emergency on a permanent basis. Public comments on this emergency rule are invited and will be considered in determining whether to extend this emergency rule. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA,

(AA)finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. Recent fishing activity levels and rates of turtle interactions have been higher than expected. As of 4 P.M. HST, March 17, 2006, the fishery reached the annual limit of 17 loggerhead turtles. Based on this information, NMFS is concerned that, under the current seven-day notice requirement, there will be insufficient time between when the observer data are collected about the number of turtle interactions in the fishery and the time the fishery closure must be implemented. Thus, it is impracticable for NMFS to delay implementing this action. If not implemented quickly, the number of allowable interactions will likely be exceeded, thereby imposing harm to the public interest in protecting these threatened and endangered turtle species. For the same reasons, the AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This emergency rule has been determined to be not significant for purposes of Executive Order 12866. This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment. 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: March 20, 2006. James W. Balsiger, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: PART 660—FISHERIES OFF WEST COAST STATES AND IN THE WESTERN PACIFIC 1. The authority citation for part 660 reads as follows: Authority: 16 U.S.C. 1801 *et seq.* and 16 U.S.C. 1531 *et seq.* 2. In § 660.22, paragraphs

(ss)and

(tt)are added to read as follows: § 660.22 Prohibitions.

(ss)Engage in shallow-setting from a vessel registered for use under a Hawaii longline limited access permit after the shallow-set component of the longline fishery has been closed pursuant to § 660.33(b)(2), in violation of § 660.33(i).

(tt)Fail to immediately retrieve longline fishing gear upon receipt of actual notice that the shallow-set component of the longline fishery has been closed pursuant to § 660.33(b)(2), in violation of § 660.33(i). 3. In § 660.33, paragraphs (b)(2)(i) and

(ii)are suspended and paragraphs (b)(2)(iii) and

(iv)are added to read as follows: § 660.33 Western Pacific longline fishing restrictions.

(b)* * *

(2)* * *

(iii)As soon as practicable, the Regional Administrator will sign the closure notice and provide actual notice via telephone, satellite telephone, radio, electronic mail, facsimile transmission, or post, to all vessel operators and holders of Hawaii longline limited access permits, that the shallow-set component of the longline fishery is closed and that shallow-set longline fishing north of the equator by vessels registered for use under Hawaii longline limited access permits will be prohibited beginning on a specified date and time, and that all such fishing gear must be immediately removed from the water and the fishing trip terminated. As soon as practicable, the Regional Administrator will also file for publication at the Office of the Federal Register the notification that the sea turtle interaction limit has been reached. The notification will indicate that the Hawaii-based shallow-set component of the longline fishery is closed, and shallow-set longline fishing north of the equator by vessels registered for use under Hawaii longline limited access permits was prohibited beginning on the specified date and time when notice was provided, until the end of the calendar year in which the sea turtle interaction limit was reached.

(iv)Beginning on the fishery closure date and time indicated by the Regional Administrator in the notification provided to vessel operators and permit holders and published in the **Federal Register** under paragraph (b)(3)(iii) of this section, until the end of the calendar year in which the sea turtle interaction limit was reached, the Hawaii-based shallow-set component of the longline fishery shall be closed. [FR Doc. 06-2801 Filed 3-20-06; 12:09 pm]

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