[Federal Register Volume 72, Number 9 (Tuesday, January 16, 2007)]
[Proposed Rules]
[Pages 1700-1702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-459]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 061227341-6341-01; I.D. 120406A]
RIN 0648-AU99


Fisheries in the Western Pacific; Hawaii Shallow-set Longline 
Fishery

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would permanently remove the 7-day delay in 
effectiveness when closing the Hawaii-based shallow-set longline 
fishery as a result of reaching interaction limits for sea turtles. 
This action would allow immediate closure of the fishery, and would 
enhance protection of sea turtles.

DATES: Comments on the proposed rule must be received by January 31, 
2007.

ADDRESSES: You may submit comments, identified by ``AU99'' by any of 
the following methods:
     E-mail: [email protected]. Include ``AU99'' 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, NMFS Pacific 
Islands Region (PIR), 1601 Kapiolani Blvd. 1110, Honolulu, HI 96814.
    In accordance with the Endangered Species Act, a Biological 
Opinion, dated February 23, 2004, was prepared for the longline 
fishery, which operates under the Fishery Management Plan for the 
Pelagic Fisheries of the Western Pacific Region (FMP). Copies of the 
Biological Opinion are available from William L. Robinson (see 
ADDRESSES).
    Copies of the regulatory amendment may be obtained from Kitty M. 
Simonds, Western Pacific Fishery Management Council (WPFMC), 1164 
Bishop St. 1400, Honolulu, HI 96813.

FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR, 808-944-2271.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the World 
Wide Web at the Office of the Federal Register: www.gpoaccess.gov/fr/index.html.

Background

    The Hawaii-based pelagic longline fishery for swordfish, tunas, and 
related species is managed under the Fishery Management Plan for 
Pelagic Fisheries of the Western Pacific Region (Pelagics FMP). The 
Pelagics FMP was developed by the WPFMC under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act. Regulations 
governing fishing by U.S. vessels in accordance with the Pelagics FMP 
appear at 50 CFR part 665 and subpart H of 50 CFR part 600.
    The regulations at Sec.  665.33(b)(1) establish maximum annual 
limits on the numbers of interactions that occur between longline 
fishing operations 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 
species of sea turtles, one for leatherback sea turtles set at 16, and 
one for loggerhead sea turtles set at 17.
    NMFS is required by the 2004 Biological Opinion to maintain 100-
percent observer coverage in the Hawaii shallow-set longline fishery. 
Interactions with turtles are monitored using data from scientific 
observers placed by NMFS aboard all vessels engaged in shallow-set 
longline fishing.
    The current regulations at Sec.  665.33(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.
    The 7-day delay was intended to give NMFS adequate time to notify 
permit holders and vessel operators of the fishery closure. 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 7-day delay in effectiveness offered by the 
advance notice provision was thought to provide adequate protection to 
sea turtles, while also providing adequate notice of the fishery 
closure to vessels at sea. At the time when the current regulations 
were implemented, NMFS observers placed aboard longline vessels were 
not issued

[[Page 1701]]

satellite telephones, and other communication methods were considered 
ineffective for notifying vessels at sea of a closure. More effective 
means of providing notification to active fishermen now exist; NMFS 
observers carry satellite telephones that enable effective 
communications between NMFS and each shallow-set vessel at sea.
    Fishing activity levels and rates of turtle interactions in early 
2006 were higher than expected, resulting in the fishery quickly 
reaching the limit on turtle interactions. To respond to the greater 
fishing activity and turtle interaction rates, and to prevent 
additional adverse impacts to turtles, fishery closure was facilitated 
by issuance of an emergency rule that suspended the 7-day delay in 
effectiveness for closing the fishery. The emergency rule that 
suspended the delay in effectiveness in closing the fishery was 
effective on March 20, 2006 (71 FR 14416, March 22, 2006). When the 
2006 fishery was closed, NMFS notified the operator of each Hawaii-
based shallow-set longline vessel, directly via the satellite telephone 
carried by the NMFS observer placed on the vessel. This allowed for 
immediate closure of the fishery. The limit on turtle interactions was 
not exceeded, maximizing protection to the turtles. To implement the 
closure, NMFS published a notice that closed the fishery, effective 
from March 20, 2006, through December 31, 2006 (71 FR 14824, March 24, 
2006). NMFS subsequently published a notice extending until March 19, 
2007, the emergency rule that suspends the advance notice provision (71 
FR 54759, September 19, 2006).
    At its 135\th\ meeting on October 18, 2006, the WPFMC voted to 
recommend to NMFS that the regulations governing the notification to 
close the fishery be amended to permanently remove the 7-day delay in 
effectiveness. The amended regulations would close the shallow-set 
fishery immediately upon reaching either limit on turtle interactions. 
The WPFMC developed a regulatory amendment, which may be obtained from 
Kitty M. Simonds (see ADDRESSES). Copies of the regulatory amendment, 
environmental assessment, regulatory impact review, and initial 
regulatory flexibility analysis (IRFA) may be obtained from William L. 
Robinson (see ADDRESSES).

Classification

    NMFS has determined that the proposed rule is consistent with the 
Pelagics FMP and has preliminarily determined that the 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.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if promulgated, would have on small entities. A 
description of the proposed action, why it is being considered, and the 
objectives of and legal basis for the rule are described at the 
beginning of this section in the preamble and in the SUMMARY section of 
the preamble. There are no recordkeeping or reporting requirements 
associated with this proposed rule.
    This proposed rule considered four alternative management measures 
including the proposed Alternative 2, which modifies existing 
regulations to close the shallow-set fishery immediately upon reaching 
a turtle interaction limit. Alternative 1, the no-action alternative, 
would continue to include a 7-day delay in effectiveness when closing 
the fishery. Alternative 3 would modify existing regulations to close 
the fishery immediately upon reaching the turtle interaction limit, 
plus change the fishing year with regards to monitoring the limit on 
sea turtle interactions. Alternative 4 would modify existing 
regulations to close the fishery immediately upon reaching the turtle 
interaction limit, plus utilize short-term time/area closures to 
decrease the number of turtle interactions and lengthen the fishing 
season.
    Based on recent levels of participation in the shallow-set longline 
fishery, it is estimated that approximately 35 shallow-set longline 
vessels may be affected by this rulemaking. All are considered to be 
small entities as defined by the Small Business Administration (SBA) as 
follows: any fish-harvesting business is a small business if it is 
independently owned and operated and not dominant in its field of 
operation and has annual receipts not in excess of $4 million.
    Because all vessels are considered to be small entities, there are 
no disproportionate economic impacts between small and large vessels 
resulting from this proposed rule. Furthermore, there are no 
disproportionate impacts among the affected population of small 
entities based on vessel size, fishing gear, or geographical 
considerations, e.g., home port.
    Based upon an estimated net revenue of $3,099 per set, and assuming 
that one set per day is the norm, the range of potential reduction in 
net revenues to individual swordfish vessels resulting from the 
implementation of the proposed Alternative 2 would be from $0 to 
$21,693 per closure, associated with a potential loss of 0-7 fishing 
days per vessel, respectively.
    The relative impact of a closure on annual returns from the 
swordfish fishery would depend on how quickly the fishery is closed in 
any one year. For example, if the fishery was closed after 63 days, 
there would be an estimated 10 percent reduction in potential annual 
net revenues. If the fishery was closed after 133 days, there would be 
an estimated 5.0 percent reduction. After 273 days, an estimated 2.5 
percent reduction would result, and so on. These projections assume 
that all shallow-set certificates were being utilized.
    The loss in revenues could be mitigated by providing vessels with 
an early warning of projected closures, thus allowing the affected 
vessels to better plan for fishing operations. Better planning would 
avoid unnecessary trip preparation and allow the opportunity to change 
gear for fishing in alternative longline fisheries, such as the Hawaii-
based deep-set (tuna) longline fishery. Alternative 1 (no action) would 
prevent direct economic losses to affected vessels. However, this 
alternative would not provide adequate protection to sea turtles. 
Alternatives 3 and 4 could partially mitigate the economic impacts to 
small entities associated with the proposed alternative by lengthening 
the fishing season, which would distribute landings to avoid flooding 
the market and allowing for price stability. The small entities also 
would be better able to plan their fishing operations, especially if 
they participate in another fishery when not targeting swordfish, and 
mitigate adverse economic impacts, such as unreasonably low prices, 
which can arise from the market becoming flooded as the fishery is 
closed and all vessels return to port. Because the high turtle 
interaction rates experienced in the 2006 fishing year may have been an 
anomaly, and in future years the fishery may not reach either turtle 
interaction limit, the time/area closures as proposed in Alternative 4, 
and the shifting of the shallow-set fishing season as proposed in 
Alternative 3 are not preferred at this time.

List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,

[[Page 1702]]

Reporting and recordkeeping requirements.

    Dated: January 10, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 665 is 
proposed to be amended as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

    l. The authority citation for part 665 continues to read as 
follows:

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

    2. In Sec.  665.22, revise paragraphs (ss) and (tt) to read as 
follows:


Sec.  665.22  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 Sec.  
665.33(b), in violation of Sec.  665.33(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 Sec.  665.33(b), in violation of 
Sec.  665.33(i).
* * * * *
    3. In Sec.  665.33, remove paragraphs (b)(2)(iii) and (iv), and 
revise paragraphs (b)(2)(i) and (ii) to read as follows:
* * * * *


Sec.  665.33  Western Pacific longline fishing restrictions

* * * * *
    (b) * * *
    (2) * * *
    (i) As soon as practicable, the Regional Administrator will file 
for publication at the Office of the Federal Register a notification of 
the sea turtle interaction limit having been reached. The notification 
will include an advisement that the shallow-set component of the 
longline fishery shall be 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 at a 
specified date, until the end of the calendar year in which the sea 
turtle interaction limit was reached. Coincidental with the filing of 
the notification, the Regional Administrator will also provide actual 
notice that the shallow-set component of the longline fishery shall be 
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 at a specified date, to all holders of 
Hawaii longline limited access permits via telephone, satellite 
telephone, radio, electronic mail, facsimile transmission, or post.
    (ii) Beginning on the fishery closure date 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)(i) 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. E7-459 Filed 1-12-07; 8:45 am]
BILLING CODE 3510-22-S