Proposed Rules. Advance notice of proposed rulemaking; request for comments
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/register/2007/02/15/07-703A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 223 [Docket No. 070122014-7014-01; I.D. 011907A] RIN 0648-AV04 Endangered and Threatened Wildlife; Sea Turtle Conservation Requirements AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Advance notice of proposed rulemaking; request for comments. SUMMARY: NMFS issues this advance notice of proposed rulemaking to announce that it is considering amendments to the regulatory requirements for turtle excluder devices (TEDs).
Specific changes NMFS is considering include increasing the size of the TED escape opening currently required in the summer flounder fishery; requiring the use of TEDs in the flynet, whelk, calico scallop, and Mid-Atlantic sea scallop trawl fisheries; and moving the current northern boundary of the Summer Flounder Fishery-Sea Turtle Protection Area off Cape Charles, Virginia, to a point farther north. The objective of the proposed measures would be to effectively protect all life stages and species of sea turtle in Atlantic trawl fisheries where they are vulnerable to incidental capture and mortality.
NMFS is seeking public comment on these potential amendments to the TED regulations. NMFS is also soliciting public comment on the need for, and development and implementation of, other methods to reduce bycatch of sea turtles in any commercial or recreational fishery in the Atlantic and Gulf of Mexico where sea turtle conservation measures do not currently exist. DATES: Comments will be accepted through March 19, 2007. ADDRESSES: Written comments on this action and requests for literature cited should be addressed to Michael Barnette, Southeast Regional Office, Office of Protected Resources, NMFS, 263 13th Avenue South, St.
Petersburg, FL 33701. Comments may also be sent via fax to 727-824-5309, via email to *0648-AV04@noaa.gov* , or to the Federal eRulemaking portal: *http://www.regulations.gov* (follow instructions for submitting comments). FOR FURTHER INFORMATION CONTACT: Michael Barnette (ph. 727-824-5312, fax 727-824-5309, e-mail *Michael.Barnette@noaa.gov* ), Ellen Keane (ph. 978-281-9300 x6526, fax 978-281-9394, e-mail *Ellen.Keane@noaa.gov* ), or Tanya Dobrzynski (ph. 301-713-2322, fax
(301)427-2522, e-mail *Tanya.Dobrzynski@noaa.gov* ). SUPPLEMENTARY INFORMATION: Background All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley ( *Lepidochelys kempii* ), leatherback ( *Dermochelys coriacea* ), and hawksbill ( *Eretmochelys imbricata* ) are listed as endangered. Loggerhead ( *Caretta caretta* ) and green ( *Chelonia mydas* ) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered. Incidental capture of sea turtles in fisheries (bycatch) is a primary factor hampering the recovery of sea turtles in the Atlantic Ocean and the Gulf of Mexico. To address this factor comprehensively, NMFS has initiated a Strategy for Sea Turtle Conservation and Recovery in Relation to Atlantic Ocean and Gulf of Mexico Fisheries (Strategy). The Strategy is a gear-based approach to addressing sea turtle bycatch. Certain types of fishing gear are more prone to the incidental capture of sea turtles than others, depending on the design of the gear, the way the gear is fished, and/or the time and area within which it is fished. An evaluation of sea turtle interactions by gear type provides a more comprehensive assessment of fishery impacts across fishing sectors as well as across state, federal, and regional boundaries. Through this strategy, NMFS seeks to address sea turtle bycatch across jurisdictional boundaries and fisheries for gear types that have the greatest impact on sea turtle populations. Through the Strategy and based on documented sea turtle-fishery interactions, NMFS has identified trawl gear as a priority for reducing sea turtle bycatch. Trawling is a method of fishing that involves actively towing a net through the water behind one or more boats. Because trawl gear is towed, it has the capability to incidentally capture sea turtles and other species that are not the intended target of the fishery. The likelihood of incidental capture is inherent in the basic design of trawls, regardless of the specific fishery. Trawl fisheries with documented observer coverage or historical bycatch information that occur in known areas and times of sea turtle distribution have consistently been shown to capture sea turtles. In fact, trawling is often used as a means to capture sea turtles for research, distribution studies, and relocation because of the effectiveness of this method. Without an avenue for escape, sea turtles are likely to drown when captured in trawl gear due to forced submergence. Even when drowning does not occur, the stresses of forced submergence have been shown to result in various negative physiological consequences that can make the turtles susceptible to later capture, predation, boat strike or other sources of injury and mortality. NMFS is now working to develop and implement bycatch reduction measures in all trawl fisheries in the Atlantic and Gulf of Mexico when and where sea turtle takes have occurred or where gear, time, location, fishing method, and other similarities exist between a particular trawl fishery and a trawl fishery where sea turtle takes have occurred. TEDs have been proven an effective method to minimize adverse effects related to sea turtle bycatch in the shrimp trawl fishery and, where applicable, in the summer flounder trawl fishery. While TEDs have potential as a bycatch reduction device for other trawl fisheries, differences in trawl designs and fishing methods may necessitate modifications or adjustments to the design of existing TEDs before they can be applied in other trawl fisheries. Testing is necessary to ensure that feasible TED designs for specific fisheries still accomplish the desired sea turtle bycatch reduction goals and to determine the TED's impact on target catch retention. It is possible that TEDs may not be feasible for some trawl fisheries. In the event that TEDs are not a viable option, other management measures such as tow time restrictions and time/area closures may need to be considered. Given these issues, NMFS anticipates a phased approach to implementation of any regulations to address sea turtle bycatch in trawl fisheries as the information needed to support measures in each individual trawl type becomes available. The incidental take of sea turtles in certain trawl fisheries has been documented in the Gulf of Mexico and Atlantic. Under the ESA and its implementing regulations, taking sea turtles is prohibited, with exceptions identified in 50 CFR 223.206. The incidental taking of threatened sea turtles during shrimp or summer flounder trawling is exempted from the taking prohibition of section 9 of the ESA if the conservation measures specified in the sea turtle conservation regulations (50 CFR 223.206(d)) are followed. The conservation regulations require most shrimp trawlers and summer flounder trawlers operating in the southeastern United States (Atlantic Area and Gulf Area) to have a NMFS-approved TED installed in each net that is rigged for fishing to provide for the escape of sea turtles. TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description, two types of special hard TEDs (the flounder TED and the weedless TED), and one type of soft TED (the Parker soft TED). TEDs have an escape opening, usually covered by a webbing flap, that allows sea turtles to escape from trawl nets. To be approved for use by NMFS, a TED design must be shown to be 97 percent effective in excluding sea turtles during experimental TED testing. TEDs must meet generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape. In order to allow the release of leatherback and large loggerhead sea turtles, NMFS required the use of large escape openings in the shrimp fishery in February 2003 (68 FR 8456; February 21, 2003). The February 2003 regulations required the use of either the double cover flap TED, a TED with a minimum opening of 71 inch (180 cm) straight-line stretched mesh, or the Parker soft TED with a minimum 96-inch (244-cm) opening in offshore waters (from the COLREGS demarcation line seaward) and in all inshore waters off of Georgia and South Carolina; and required a TED with a minimum opening of 44 inch (112 cm) straight-line stretched mesh with a 20 inch (51 cm) vertical taut height in all inshore waters (from the COLREGS Demarcation line landward) except for the inshore waters of Georgia and South Carolina. At this time, the large-opening TED is only required in the shrimp trawl fishery. Summer Flounder Fishery Since 1992, all vessels using bottom trawls to fish for summer flounder in specific times and areas off Virginia and North Carolina have been required to use NMFS-approved TEDs in their nets (57 FR 57358, December 4, 1992; 50 CFR 223.206(d)(2)(iii)). Currently, the escape opening requirements for the flounder TED are ≤35 inches (≤89 cm) in width and ≤12 inches (≤30 cm) in height (50 CFR 223.207(b)(1)). Although the February 2003 final rule (68 FR 8456) to require the larger opening in the shrimp trawl fishery did not require vessels in the summer flounder trawl fishery to use the larger escape opening sizes, the rule stated NMFS was evaluating the need for such restrictions in this fishery. The smaller opening currently used in this fishery is insufficient to allow the escapement of leatherback sea turtles and larger loggerhead and green sea turtles. The larger opening TEDs have passed the NMFS testing criteria for turtle escapement and NMFS has conducted testing of the larger opening in the Mid-Atlantic summer flounder trawl fishery since 2003. NMFS is currently considering an option to modify TED regulations in the summer flounder trawl fishery to require a larger escape opening. The larger escape opening would have a 142-inch (361-cm) circumference with a corresponding 71-inch (180-cm) straight line stretched measurement. This option is expected to decrease escape times for all turtles and allow for the release of leatherbacks and all large loggerhead and green sea turtles. The larger opening would be consistent with sea turtle conservation measures currently in place in the shrimp trawl fishery. Whelk and Calico Scallop Trawl Fisheries The whelk trawl fishery originally developed off the South Carolina coast during 1977 and the spring of 1978 as an alternative fishery during closures in the shrimp season. Trawling for knobbed and channeled whelk typically occurs from mid-February through mid-April. Currently, less than 35 commercial fishermen actively participate in the fishery with five or more trips each year, although as many as 100 permits have been issued by the Georgia Department of Natural Resources (GDNR). Due to documented sea turtle interactions within the fishery, NMFS evaluated potential TED designs for the fishery in 2000-2001. The whelk TED was developed in cooperation with GDNR and the University of Georgia Marine Extension Service in an effort to provide nearshore whelk fishermen with a TED that would allow the target species to pass through the TED frame and be retained as catch. The whelk TED passed the NMFS testing protocol in 2001. The whelk TED design is similar to the top-opening flounder TED used along the southeastern Atlantic coast during the winter months, featuring enlarged openings at the bottom of the frame. NMFS is currently considering an option to require the use of TEDs in the whelk trawl fishery. Currently, GDNR requires the use of this TED in the whelk trawl fishery in Georgia State waters; however, some whelk trawling does occur in Federal waters. The calico scallop fishery originally developed in North Carolina in the early 1960s, but the focus of the fishery shifted to areas off Florida during the early 1970s. Calico scallop trawls are typically small (e.g., headrope length <40 feet) and are towed for short periods of time (e.g., 15 minutes). The scallop beds off Florida stretch from Jacksonville to Ft. Pierce in 60 to 240 feet (18 to 73 m) of water. Due to large fluctuations of calico scallop abundance and patchy distribution, landings within the fishery are extremely sporadic. Approximately 25 vessels are thought to currently be operating in the fishery. Similar to the whelk fishery, the calico scallop fishery requires a TED that allows the target species to pass through the TED frame and be retained as catch. Therefore, NMFS has determined that a hard TED, similar in design to the whelk TED, could be installed in calico scallop trawls. NMFS is currently considering an option to require the use of TEDs in the calico scallop trawl fishery. TED use in this fishery would be a new requirement. Mid-Atlantic Scallop Trawl Fishery The U.S. Atlantic sea scallop fishery is conducted in the Gulf of Maine, on Georges Bank, and in the Mid-Atlantic offshore region southward to North Carolina. The commercial fishery for sea scallops occurs year round, and is primarily conducted using dredges and otter trawls. Approximately 10 percent of landings in the sea scallop fishery are from vessels using trawl gear, primarily in the Mid-Atlantic. Fishing by these vessels often occurs during the summer when other species (e.g., summer flounder) are not available (NMFS 2003). Trawl fishermen participating in the sea scallop fishery primarily use either trawls designed specifically for the sea scallop fishery or flounder trawls. Sea turtle takes have been observed in the sea scallop trawl fishery. In 2005 and 2006, NMFS tested the feasibility of TED use in the sea scallop trawl fishery. The sea scallop TED tested is a whelk TED that has been modified to prevent chafing of the gear. This TED design passed the NMFS testing criteria for sea turtle escapement. Initial results suggest that TED use in the sea scallop trawl fishery is feasible. NMFS is currently considering an option to require the use of TEDs in the Mid-Atlantic sea scallop trawl fishery. TED use in this fishery would be a new requirement. Flynet Fishery Flynets are high profile trawls fished just off the bottom and range from 80 to 120 feet (24.4 to 36.6 m) in width, with wing mesh sizes of 16 to 64 inches (41 to 163 cm). The flynet fishery is a multi-species fishery that operates along the East Coast of the United States. One component of the fishery operates inside of 180 feet (55 m) from North Carolina to New Jersey, and targets Atlantic croaker, weakfish, and other finfish species. Another component of the flynet fishery operates outside of 180 feet (55 m) from the Hudson Canyon off New York, south to Hatteras Canyon off North Carolina. Target species for the deeper-water component of the fishery include bluefish, Atlantic mackerel, squid, black sea bass, and scup. Sea turtle takes have been documented in this fishery. TEDs for the flynet fishery have been in development since 1999. Two semi-rigid TED designs for use within the flynet fishery have been tested and passed the NMFS testing protocol when rigged with a top-opening escape panel. NMFS is currently considering an option to require the use of TEDs in the flynet fishery. TED use in this fishery would be a new requirement. Movement of the Summer Flounder Fishery-Sea Turtle Protection Area Boundary Any summer flounder trawler that operates within the Summer Flounder Fishery-Sea Turtle Protection Area must utilize TEDs in its nets (50 CFR 223.206(d)(2)(iii)). Currently, this protection area is bounded on the north by a line extending off Cape Charles, Virginia, on the south by a line extending from the South Carolina-North Carolina boundary, and seaward by the Exclusive Economic Zone boundary. Vessels are exempted from the TED requirement north of Oregon Inlet, North Carolina, from January 15 through March 15, annually, when take of sea turtles by summer flounder trawling is not expected. From 1994-2004, observers documented takes in summer flounder and other Mid-Atlantic bottom otter trawl fisheries in areas and times when TEDs are not required in the summer flounder trawl fishery (Murray 2006). Murray
(2006)estimated sea turtle bycatch in the Mid-Atlantic bottom otter trawl fisheries. Murray found that, based on the analysis, the likelihood of interacting with a turtle depends on the time and area in which fishing occurs rather than the fish species being targeted. While incidental captures of sea turtles occurred throughout the year, Murray
(2006)demonstrated that most interactions were confined to certain bathymetric and thermal regimes. Because of documented takes of sea turtles north of the current line due to the overlap in distribution of sea turtles and trawl gear, NMFS is considering moving the northern boundary of the Summer Flounder Fishery-Sea Turtle Protection Area farther north to reduce sea turtle bycatch in the summer flounder fishery. Additionally, NMFS is considering expanding the TED requirements to other trawl fisheries in the Mid-Atlantic, which currently do not have any TED requirements within this geographic area. Conclusion NMFS is seeking advanced public input on potential measures to reduce sea turtle bycatch in Atlantic trawl fisheries and in Gulf of Mexico trawl fisheries where sea turtle conservation measures do not currently apply. NMFS is also seeking information on sea turtle interactions in Atlantic and Gulf of Mexico trawl fisheries. NMFS wants to improve the performance of TEDs to protect large turtles, reduce sea turtle bycatch in additional trawl fisheries with sea turtle interactions, and streamline and simplify the regulations. NMFS is also soliciting comment on whether and how far north to move the northern boundary of the Summer Flounder Fishery-Sea Turtle Protection Area, as well as on other viable ideas or concepts to reduce sea turtle bycatch in trawl fisheries. Measures may include new TED designs for various trawl fisheries, or other technologies and approaches that may minimize or mitigate sea turtle interactions in trawl fisheries. Literature Cited Murray, K.T. 2006. Estimated Average Annual Bycatch of Loggerhead Sea Turtles ( *Caretta caretta* ) in U.S. Mid-Atlantic Bottom Otter Trawl Gear, 1996-2004. U.S. Department of Commerce, Northeast Fisheries Science Center Reference Document 06-19; 26 pp. This advance notice of proposed rulemaking has been determined to be not significant for E.O. 12866 purposes. Dated: February 12, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. E7-2719 Filed 2-14-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [I.D. 020107A] RIN 0648-AT55 Fisheries in the Western Pacific; Western Pacific Pelagic Fisheries; Management Measures for Bigeye Tuna Pacific-Wide and Yellowfin Tuna in the Western and Central Pacific Ocean AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of availability of Fishery Management Plan
(FMP)amendment; request for comments. SUMMARY: NMFS announces the availability, for public review and comment, of proposed Amendment 14 to the FMP for Pelagic Fisheries of the Western Pacific Region (Pelagics FMP). The amendment responds to the Secretary of Commerce's determination that overfishing is occurring on bigeye tuna ( *Thunnus obesus* ) Pacific-wide, and on yellowfin tuna ( *Thunnus albacares* ) in the western and central Pacific Ocean (WCPO). The measures in the amendment are designed to end overfishing of bigeye tuna Pacific-wide and yellowfin tuna in the WCPO, as required under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Amendment 14 would establish Federal permitting and reporting requirements for all U.S. Hawaii-based small boat commercial pelagic fishermen. Internationally, Amendment 14 would establish for the Western Pacific Fishery Management Council (Council) an internal protocol related to its role in managing pelagic fish stocks that are managed internationally, including its participation in U.S. delegations to meetings of regional fishery management organizations (RFMOs). This amendment also recommends that NMFS and the Department of State work through the RFMOs to immediately end overfishing of bigeye tuna Pacific-wide and WCPO yellowfin tuna, focusing on fisheries with the greatest impact on Pacific bigeye tuna and WCPO yellowfin tuna, i.e., longline and purse seine fisheries. DATES: Comments on the amendment must be received by April 16, 2007. ADDRESSES: Comments on Pelagics Amendment 14, identified by AT55Tuna, may be sent to any of the following addresses: • E-mail: *AT55Tuna@noaa.gov* . Include in the subject line of the e-mail comment the following document identifier “AT55Tuna.” Comments sent via e-mail, including all attachments, must not exceed a 10 megabyte file size. • Federal e-Rulemaking portal: *www.regulations.gov* . Follow the instructions for submitting comments. • Mail: William L. Robinson, Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814-4700. An Environmental Assessment
(EA)was prepared for this amendment. Copies of the Pelagics FMP and Amendment 14 (containing the EA) may be obtained from Kitty M. Simonds, Western Pacific Fishery Management Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813. FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR, 808-944-2271. SUPPLEMENTARY INFORMATION: Pelagics FMP Amendment 14, developed by the Council, has been submitted to NMFS for review under the Magnuson-Stevens Act, 16 U.S.C. 1801 *et seq.* This notice announces that the amendment is available for public review and comment for 60 days. NMFS will consider public comments received during the comment period in determining whether to approve, partially approve, or disapprove Amendment 14. On December 15, 2004, NMFS notified the Council that overfishing was occurring on bigeye tuna Pacific-wide. On March 16, 2006, NMFS notified the Council that overfishing was occurring on western and central Pacific Ocean
(WCPO)yellowfin tuna. As required by the MSA, the Council was requested to take appropriate action to end overfishing. Pelagics FMP Amendment 14 contains the Council's recommended actions to end overfishing for both stocks. Bigeye and yellowfin tuna are highly migratory species, and occur in the waters of multiple nations and the high seas. Consequently, they are targeted by fishing fleets of several nations, including the United States of America. Until recently, the majority of bigeye tuna in the Pacific Ocean was caught by longliners, primarily for the Japanese sashimi market. During the last 10 years, however, catches of bigeye tuna by purse seiners have increased considerably. Purse seine-caught bigeye tuna are taken primarily when purse seiners targeting skipjack and yellowfin tuna set their nets around fish aggregating devices (FADs). Smaller amounts are also taken by handline and troll vessels. Yellowfin tuna in the WCPO are caught primarily by purse seiners. WCPO longline, pole-and-line, handline and troll fisheries also catch substantial amounts of yellowfin tuna. According to the guidelines for National Standard 1 of the Magnuson-Stevens Act (50 CFR 600.310), fishery stock status is assessed with respect to two status determination criteria, one of which is used to determine whether a stock is “overfished,” and the second of which is used to determine if the stock is subject to “overfishing.” A stock is considered to be overfished if its biomass falls below the minimum stock size threshold (MSST). Overfishing means that fishing is occurring at a rate or level that jeopardizes the capacity of a stock or stock complex to produce maximum sustainable yield
(MSY)on a continuing basis. When a stock is not in an overfished condition, the maximum fishing mortality threshold
(MFMT)is equal to the fishing mortality associated with MSY (F MSY ). The latest stock assessments for bigeye tuna in the Pacific and WCPO yellowfin tuna have concluded that the biomass of neither stock is below their respective MSST. However, the assessments used as a basis for the overfishing determinations (conducted in 2003 and 2004 for Pacific bigeye tuna and 2005 and 2006 for WCPO yellowfin tuna) indicated that the then-current level of fishing mortality did exceed the stocks' respective MFMTs. Consequently, NMFS determined that overfishing was occurring on the Pacific-wide stock of bigeye tuna and on the WCPO stock of yellowfin tuna. At its 133rd meeting in June, 2006, the Council took action to recommend several management measures that would be established by Pelagics FMP Amendment 14. The Council's management recommendations would constitute a foundation plan for the Council, NMFS, and the Department of State to end overfishing of bigeye tuna Pacific-wide and WCPO yellowfin tuna. Pelagics FMP Amendment 14 calls for NMFS to enhance data quality for U.S. Hawaii-based small boat pelagic fisheries through mandatory Federal permits and data-collection programs (logbooks) for commercial small-boat fisheries, and improved surveys and voluntary reporting for recreational fisheries. Pelagics FMP Amendment 14 acknowledges that the Council recommended a control date of June 2, 2005, for entry into the small boat commercial pelagic fisheries in U.S. EEZ waters around Hawaii. On August 15, 2005, NMFS published a notice of this control date (70 FR 47781). The amendment also acknowledges that the Council recommended a control date of June 2, 2005, for entry into domestic longline and purse seine fisheries in U.S. EEZ waters in the western Pacific. On August 15, 2005, NMFS published a notice of this control date (70 FR 47782). These control dates were implemented to notify the public that future participation in these fisheries was not guaranteed if the Council and NMFS developed and implemented limited access programs for the fisheries. Establishment of these control dates does not, however, commit the Council or NMFS to any particular management regime or criteria for entry into these fisheries. The international scope of the overfishing situation, and measures to meaningfully address the problem, must be addressed through RFMOs, such as the Inter-American Tropical Tuna Commission and Western and Central Pacific Fisheries Commission. Internationally, Pelagics FMP Amendment 14 contains several proposed non-regulatory measures and recommendations, including the establishment for the Council an internal protocol related to its role in managing pelagic fish stocks that are managed internationally (including steps the Council would take to monitor the status of internationally managed fish stocks, participate in U.S. delegations in meetings with RFMOs, and follow the activities of RFMOs). The Council also recommends that NMFS and the Department of State work through RFMOs to immediately end overfishing of bigeye tuna Pacific-wide and WCPO yellowfin tuna, focusing on fisheries with the greatest impact on Pacific bigeye tuna and WCPO yellowfin tuna, i.e., longline and purse seine fisheries. Specific international recommendations include plans for reducing longline fishing capacity, reducing purse seine fishing capacity and restrictions on the use of FADs while purse seine fishing, establishment and gradual reduction of national quotas, and other measures. Bigeye tuna is also a management unit species under the Pacific Fishery Management Council's Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). The Pacific Council has worked with the Western Pacific Council to develop a response to the determination of overfishing on bigeye tuna Pacific-wide. Amendment 1 to the Pacific Council's HMS FMP is consistent with relevant elements of Pelagics FMP Amendment 14 to end overfishing of bigeye tuna. Public comments are being solicited on Pelagics FMP Amendment 14. A proposed rule that would implement Amendment 14 may be published in the **Federal Register** for public comment, following evaluation by NMFS under the Magnuson-Stevens Act procedures, and other applicable laws. Public comments on the proposed rule must be received by the end of the comment period on Amendment 14 to be considered in the approval/disapproval decision for the amendment. All comments received by the end of the comment period for Amendment 14, whether specifically directed to the amendment or the proposed rule, will be considered in the approval/disapproval decision; comments received after that date will not be considered in the approval/disapproval decision for the FMP/amendment. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date. Dated: February 09, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-2677 Filed 2-14-07; 8:45 am] BILLING CODE 3510-22-S 72 31 Thursday, February 15, 2007 Notices ADVISORY COUNCIL ON HISTORIC PRESERVATION Final Advisory Council on Historic Preservation Policy Statement on Affordable Housing and Historic Preservation AGENCY: Advisory Council on Historic Preservation. ACTION: Notice of Final Policy Statement on Affordable Housing and Historic Preservation. SUMMARY: The Advisory Council on Historic Preservation
(ACHP)adopted a “Policy Statement on Affordable Housing and Historic Preservation,” on November 9, 2006. DATES: The final policy went into effect upon adoption on November 9, 2006. FOR FURTHER INFORMATION CONTACT: Blythe Semmer, 202-606-8505. Electronic mail: *affordablehousing@achp.gov* SUPPLEMENTARY INFORMATION: The Advisory Council on Historic Preservation
(ACHP)is an independent Federal agency, created by the National Historic Preservation Act, that promotes the preservation, enhancement, and productive use of our Nation's historic resources, and advises the President and Congress on national historic preservation policy. Section 106 of the National Historic Preservation Act (Section 106), 16 U.S.C. 470f, requires Federal agencies to consider the effects of their undertakings on historic properties and provide the ACHP a reasonable opportunity to comment with regard to such undertakings. ACHP has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800. I. Background In 1995, the ACHP adopted its first “Policy Statement on Affordable Housing and Historic Preservation” (1995 Policy) to serve as a guide for federal agencies and State Historic Preservation Offices (SHPOs) when making decisions about affordable housing projects during review of federal undertakings under Section 106 of the National Historic Preservation Act, as amended, 16 U.S.C. 470f (Section 106), and its implementing regulations, “Protection of Historic Properties” (36 CFR Part 800). The ACHP adopted the policy to guide federal agencies and SHPOs at a time when conflicts between the dual goals of providing affordable housing and preserving historic properties was making the achievement either more difficult. After a decade, the provision of affordable housing has developed into an even more pressing national concern, prompting a reconsideration of the principles in the policy statement. In 2005, the ACHP Chairman convened an Affordable Housing Task Force to review this policy statement in light of changes to the Section 106 regulations in 2001 and 2004 and other ACHP initiatives. Members of the Task Force included the U.S. Department of Agriculture, U.S. Department of the Interior, the National Conference of State Historic Preservation Officers (NCSHPO), the National Trust for Historic Preservation, citizen member, Emily Summers, and expert member, John G. Williams, III, Chair. The U.S. Department of Housing and Urban Development
(HUD)participated as an ACHP observer. The Task Force developed the Policy Statement with input from the public. An online survey of state and local government officials and affordable housing providers about their awareness of and use of the 1995 Policy was conducted in August-September 2005. Links to the survey were distributed to approximately 12,000 individuals representing State and Tribal Historic Preservation Officers, local historic preservation commission members, Certified Local Government staff, HUD staff and grantees, state community development agency staffs, and affordable housing providers. Following development of a draft, the ACHP posted the proposed revised draft policy statement in the **Federal Register** on July 17, 2006 (71 FR 40522), and comments from the public were accepted through August 16, 2006. Information about the July 17, 2006, **Federal Register** notice was distributed by members of the Task Force to their respective constituencies through electronic LISTSERVs including communities receiving HOME program and Community Development Block Grant funds from HUD, members of the National Trust for Historic Preservation's Forum, and members of the NCSHPO. Additionally, the ACHP provided information about the comment period directly to Tribal Historic Preservation Officers, the National Alliance of Tribal Historic Preservation Officers, and over a dozen organizations with an interest in local community development activities and the provision of affordable housing, as well as on the ACHP Web site. Comments on the new policy statement generally supported the revision effort. Specific comments frequently requested detailed guidance on applying the *Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings* (Secretary's Standards) to affordable housing projects. While the Task Force recognized that specific comments on the application of the Secretary's Standards were outside the scope of its mandate, additional language highlighting the distinction between review for the Historic Rehabilitation Tax Credit and Section 106 compliance was included in the policy statement. Commenters further requested the development of case studies that would illustrate the successful integration of historic preservation and affordable housing on a variety of topics including accessibility, use of modern building materials, and lead paint abatement requirements. It is anticipated that such case studies will become an important component of materials developed by the ACHP and Task Force in implementing the revised policy statement. Responsiveness to local conditions emerged as a recurring theme in the Task Force's deliberations. Members recognized that affordable housing can include housing for a specific constituency, such as Native American housing programs. Federal assistance for affordable housing can also be directed to specific geographic areas with distinctive physical characteristics. Just as affordable housing programs serve unique local needs, so should historical preservation reviews, since “one-size-fits-all” approaches are unlikely to produce a successful balance for these projects. Given our national diversity, the majority of Task Force members embraced and encouraged creativity in local solutions while federal agency members emphasized the value of consistency and predictability. The importance of developing and utilizing tailored guidance also shaped the Task Force's deliberations and its preparation of a set of recommendations for how the policy statement can be put into practice. Direction from both the ACHP and federal agencies was seen as critical to achieving the goals of the Task Force, but members recognized that private and non-profit partners with experience piecing together the resources required for planning and funding affordable housing projects could provide examples of success stories and best practices. The policy statement, which represents the conclusion of the research and public outreach efforts of the Affordable Housing Task Force and the deliberation of its members, was adopted by the ACHP on November 9, 2006. The final text of the policy statement is provided in Section II of this notice. II. Text of the Policy The following is the text of the final policy statement: Advisory Council on Historic Preservation
(ACHP)Policy Statement on Affordable Housing and Historic Preservation Historic buildings provide affordable housing to many American families. Affordable housing rehabilitation can contribute to the ongoing vitality of historic neighborhoods as well as of the businesses and institutions that serve them. Rehabilitation can be an important historic preservation strategy. Federal agencies that help America meet its need for safe, decent, and affordable housing, most notably the U.S. Department of Housing and Urban Development
(HUD)and the U.S. Department of Agriculture's (USDA's) Rural Development agency, often work with or near historic properties. The ACHP considers affordable housing for the purposes of this policy to be Federally-subsidized, single- and multi-family housing for individuals and families that make less than 80% of the area median income. It includes, but is not limited to, Federal assistance for new construction, rehabilitation, mortgage insurance, and loan guarantees. National policy encompasses both preserving historic resources and providing affordable housing. The National Historic Preservation Act
(NHPA)of 1966, as amended, directs the Federal government to foster conditions under which modern society and prehistoric and historic resources can exist in productive harmony and “fulfill the social, economic, and other requirements of present and future generations.” Similarly, affordable housing legislation like the Cranston-Gonzalez Act of 1990, which aims to “expand the supply of decent, safe, sanitary, and affordable housing,” anticipates historic preservation as a tool for meeting its goals. Actively seeking ways to reconcile historic preservation goals with the special economic and social needs associated with affordable housing is critical in addressing one of the nation's most pressing challenges. Providing affordable housing is a growing national need that continues to challenge housing providers and preservationists. In issuing this policy statement, the ACHP, consistent with Section 202 of the NHPA, offers a flexible approach for affordable housing projects involving historic properties. Section 106 of the National Historic Preservation Act Section 106 requires Federal agencies to take into account the effects of their actions on historic properties and afford the ACHP a reasonable opportunity to comment. This policy provides a framework for meeting these requirements for affordable housing. Federal tax incentives provide opportunities for historic preservation and affordable housing to work together, including the Low-Income Housing Tax Credit and the Historic Rehabilitation Tax Credit. Projects taking advantage of the Historic Rehabilitation Tax Credit must be reviewed by the National Park Service
(NPS)for adherence to the *Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitatinq Historic Buildinqs* (Secretary's Standards) in a separate and distinct process. Review of these projects is more comprehensive than Section 106 review and necessitates early coordination with NPS and the State Historic Preservation Officer
(SHPO)since work must adhere to the Secretary's Standards to obtain the tax credit. Nonetheless, coordination with Section 106 consultation and these reviews frequently occurs. In an effort to better focus Section 106 reviews for affordable housing, the ACHP encourages Federal and State agencies, SHPOs, Tribal Historic Preservation Officers (THPOs), local governments, housing providers, and other consulting parties to use the following principles in Section 106 consultation. Implementation Principles I. Rehabilitating historic properties to provide affordable housing is a sound historic preservation strategy. II. Federal agencies and State and local government entities assuming HUD's environmental review requirements are responsible for ensuring compliance with Section 106. III. Review of effects in historic districts should focus on exterior features. IV. Consultation should consider the overall preservation goals of the community. V. Plans and specifications should adhere to the Secretary's Standards when possible and practical. VI. Section 106 consultation should emphasize consensus building. VII. The ACHP encourages streamlining the Section 106 process to respond to local conditions. VIII. The need for archeological investigations should be avoided. I. Rehabilitating Historic Properties to Provide Affordable is a Sound Historic Preservation Strategy. Continued investment in historic buildings through rehabilitation and repair for affordable housing purposes and stabilization of historic districts through the construction of infill housing should be recognized as contributing to the broad historic preservation goals of neighborhood revitalization and retention. II. Federal Agencies and State and Local Government Entities Assuming HUD's Environmental Review Requirements Are Responsible for Ensuring Compliance With Section 106. Federal agencies, notably USDA Rural Development and HUD, provide important funding for affordable housing. These Federal agencies, and funding recipients assuming HUD's environmental review requirements, must comply with Section 106. SHPOs, THPOs, and local historic preservation commissions provide expert opinions and advice during consultation. Consultation should be concluded and outcomes recorded prior to the expenditure of funds. III. Review of Effects in Historic Districts Should Focus on Exterior Features. Section 106 review of effects focuses on the characteristics that qualify a property for listing in the National Register of Historic Places. The significance of historic districts is typically associated with exterior features. Accordingly, unless a building is listed or considered eligible for listing in the National Register as an individual property or specific interior elements contribute to maintaining a district's character, review under Section 106 should focus on proposed changes to the exterior. In all cases, identifying the features that qualify a property for inclusion in the National Register defines the scope of Section 106 review. IV. Consultation Should Consider the Overall Preservation Goals of the Community. When assessing, and negotiating the resolution of, the effects of affordable housing projects on historic properties, consultation should focus not simply on individual buildings but on the historic preservation goals of the broader neighborhood or community. If the affected historic property is a historic district, the agency official should assess effects on the historic district as a whole. Proposals to demolish historic properties for new replacement housing should be based on background documentation that addresses the broader context of the historic district and evaluates the economic and structural feasibility of rehabilitation that advances affordable housing. V. Plans and Specifications Should Adhere to the Secretary's Standards When Possible and Practical. Secretary's Standards outline a consistent national approach to the treatment of historic properties that can be applied flexibly in a way that relates to local character and needs. Plans and specifications for rehabilitation, new construction, and abatement of hazardous conditions in affordable housing projects associated with historic properties should adhere to the recommended approaches in the Secretary's Standards when possible and practical. Projects taking advantage of the Historic Rehabilitation Tax Credit must be reviewed by the National Park Service for adherence to the Secretary's Standards in a separate and distinct process that benefits from early coordination. The ACHP recognizes that there are instances when the Secretary's Standards cannot be followed and that Section 106 allows for the negotiation of other outcomes. VI. Section 106 Consultation Should Emphasize Consensus Building. Section 106 review strives to build consensus with affected communities in all phases of the process. Consultation with affected communities should be on a scale appropriate to that of the undertaking. Various stakeholders, including community members and neighborhood residents, should be included in the Section 106 review process as consulting parties so that the full range of issues can be addressed in developing a balance between historic preservation and affordable housing goals. VII. The ACHP Encourages Streamlining the Section 106 Process To Respond to Local Conditions. The ACHP encourages participants to seek innovative and practical ways to streamline the Section 106 process that respond to unique local conditions related to the delivery of affordable housing. Programmatic Agreements often delegate the Section 106 review role of the SHPO to local governments, particularly where local preservation ordinances exist and/or where qualified preservation professionals are employed to improve the efficiency of historic preservation reviews. Such agreements may also target the Section 106 review process to local circumstances that warrant the creation of exempt categories for routine activities, the adoption of “treatment and design protocols” for rehabilitation and new infill construction, and the development of design guidelines tailored to a specific historic district and/or neighborhood. VIII. The Need for Archaeological Investigations Should Be Avoided. Archaeological investigations should be avoided for affordable housing projects limited to rehabilitation and requiring minimal ground disturbance. Authority: 16 U.S.C. 470j Dated: February 12, 2007. Ralston Cox, Acting Executive Director. [FR Doc. 07-703 Filed 2-14-07; 8:45 am]
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- 50 CFR 223
- 50 CFR 223.206
- 50 CFR 223.206(d)
- 50 CFR 223.206(d)(2)(iii)
- 50 CFR 223.207(b)(1)
- 50 CFR 665
- 50 CFR 600.310
- 36 CFR 800
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Advance notice of proposed rulemaking; request for comments
Cite50 CFR 223
Cite50 CFR 223.206
Cite50 CFR 223.206(d)
Cite50 CFR 223.206(d)(2)(iii)
Cite50 CFR 223.207(b)(1)
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