[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Proposed Rules]
[Pages 4225-4226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1450]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 224 and 660

[Docket Number 070110003-7003-01;I.D. 112006A]
RIN 0648-AS89


Fisheries Off West Coast States; Highly Migratory Species 
Fisheries

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule to amend text in the regulations 
governing closures of the drift gillnet fishery in the Pacific 
Loggerhead Conservation Area during El Nino events under the Fishery 
Management Plan for U.S. West Coast Fisheries for Highly Migratory 
Species (HMS FMP). The regulation is necessary to avoid jeopardizing 
loggerhead sea turtles, which are listed as threatened under the 
Endangered Species Act, by clarifying the time period in which the area 
is to be closed and the methods that NMFS will use to determine if an 
El Nino event is occurring or forecast to occur. NMFS also proposes to 
correct an inaccurate cross-reference in the regulations governing 
special requirements for fishing activities to protect endangered sea 
turtles under the HMS FMP.

DATES: Comments must be received by March 1, 2007.

ADDRESSES: You may submit comments on this notice, identified by I.D. 
112006A, by any of the following methods:
     E-mail: [email protected]. Include the I.D. number in 
the subject line of the message.
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Mail: Rodney R. McInnis, Regional Administrator, Southwest 
Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802 
4213.
     Fax: (562) 980 4047.

FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries 
Division, NMFS, 760-431-9440, ext. 303.

SUPPLEMENTARY INFORMATION: On April 7, 2004, NMFS published a final 
rule to implement the HMS FMP (69 FR 18444) that included incorrect 
regulatory text in 50 CFR 660.713(c)(2) pertaining to the timing of a 
closure for the California/Oregon swordfish/thresher shark drift 
gillnet fishery during declared El Nino events and methods for 
determination and notification concerning an El Nino event. This 
proposed rule would amend that regulatory text.
    The timing of the closure and methods for determining an El Nino 
event were published on December 16, 2003, as part of the Pacific 
loggerhead conservation area final rule (68 FR 69962) and codified at 
50 CFR 223.206(d)(6)(ii) and (iii). The closure is necessary to avoid 
jeopardizing the continued existence of threatened loggerhead sea 
turtles. The final rule described the area of the closure, the time 
period in which the area is to be closed, the methods that NMFS will 
use to determine if an El Nino event is occurring or is going to occur, 
and how the Assistant Administrator will provide notification that an 
El Nino is occurring.
    Less than 4 months after the correct language was codified, the HMS 
FMP final rule removed and reserved the regulation at 50 CFR 
223.206(d)(6) and moved the text from that regulation to 50 CFR 
660.713(c). Due to an oversight in drafting, Sec.  223.206(d)(6)(iii), 
which detailed the process for the AA to make a determination that an 
El Nino is occurring or scheduled to occur, was not included in the HMS 
FMP final rule. Also, text at 660.713(c)(2)(ii) of the draft rule was 
mistakenly included in the HMS FMP final rule. This proposed rule would 
remove paragraph the text at 660.713(c)(2)(ii) and replace it with two 
paragraphs that are substantively identical to the original Sec.  
223.206(d)(6)(iii). the text of 223.206(d)(6)(iii) as originally 
intended with non-substantive revisions to the text for clarification. 
Furthermore, the corrections would make clear that any closure as a 
result of an El Nino event would occur from June 1 - August 31 only, as 
currently specified in 50 CFR 660.713(c)(2), rather than during the 
time periods of January 1 - January 15 and August 15 - August 31, as 
currently specified inconsistently in Sec.  660.713 (c)(2)(ii). NMFS 
also proposes to amend regulatory text at 50 CFR 224.104(c) that 
describes special requirements for fishing activities to protect 
endangered sea turtles. The existing text refers to special 
prohibitions relating to sea turtles at Sec.  223.206(d)(2)(iv). 
However, paragraph (d)(2)(iv) no longer exists in 50 CFR 223.206. The 
reference should be to Sec.  223.206(d).

Classification

    NMFS has determined that the proposed rule is consistent with the 
HMS FMP and preliminarily determined that this proposed 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.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Approximately 90 vessels were permitted under the HMS FMP to operate in 
the swordfish/thresher shark drift gillnet fishery off the U.S. West 
Coast in 2005. Of these 90 vessels, 42 actively fished in 2005. These 
vessels are considered small business entities and there should be no 
economic impact to them as a result of this action. The proposed action 
is a correction measure that will clarify conflicting regulatory 
instructions and provide U.S. fishermen with clear instructions on how 
to comply with Federal law. As described earlier, the corrections would 
make clear that any closure as a result of an El Nino event would occur 
from June 1 - August 31, as currently specified in 50 CFR 
660.713(c)(2), rather than during the time periods of January 1 - 
January 15 and August 15 - August 31, as currently specified 
inconsistently in Sec.  (c)(2)(ii). The corrections would also include 
additional information describing how NOAA will determine whether an El 
Nino event is occurring and when El Nino conditions have ceased. As a 
result, an initial regulatory flexibility analysis is not required and 
none has been prepared.

List of Subjects

50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting andrecordkeeping requirements.

50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.


[[Page 4226]]


    Dated: January 24, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR parts 224 and 660 
are proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
    2. In Sec.  224.104, paragraph (c) is revised to read as follows:


Sec.  224.104  Special requirements for fishing activities to protect 
endangered sea turtles.

* * * * *
    (c) Special prohibitions relating to sea turtles are provided at 
Sec.  223.206(d).

PART 660--FISHERIES OFF THE WEST COAST STATES

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

    Authority: 16 U.S.C. 1801 et seq.
    4. In Sec.  660.713, paragraph (c)(2) is revised to read as 
follows:


Sec.  660.713  Drift gillnet fishery.

* * * * *
    (c)(2) Pacific loggerhead conservation area. No person may fish 
with, set, or haul back drift gillnet gear in U.S. waters of the 
Pacific Ocean east of the 120[deg] W. meridian from June 1 through 
August 31 during a forecasted, or occurring, El Nino event off the 
coast of southern California.
    (i) Notification of an El Nino event. The Assistant Administrator 
will publish in the Federal Register a notification that an El Nino 
event is occurring, or is forecast to occur, off the coast of southern 
California and the requirement of a closure under this paragraph 
(c)(2). Furthermore, the Assistant Administrator will announce the 
requirement of such a closure by other methods as are necessary and 
appropriate to provide actual notice to the participants in the 
California/Oregon drift gillnet fishery.
    (ii) Determination of El Nino conditions. The Assistant 
Administrator will rely on information developed by NOAA offices which 
monitor El Nino events, such as NOAA's Climate Prediction Center and 
the West Coast Office of NOAA's Coast Watch program, in order to 
determine whether an El Nino is forecasted or occurring for the coast 
of southern California. The Assistant Administrator will use the 
monthly sea surface temperature anomaly charts to determine whether 
there are warmer than normal sea surface temperatures present off of 
southern California during the months prior to the closure month for 
years in which an El Nino event has been declared by the NOAA Climate 
Prediction Center. Specifically, the Assistant Administrator, will use 
sea surface temperature data from the third and second months prior to 
the month of the closure for determining whether El Nino conditions are 
present off of southern California.
    (iii) Reopening. If, during a closure as described within this 
paragraph (c)(2), sea surface temperatures return to normal or below 
normal, the Assistant Administrator may publish a Federal Register 
notice announcing that El Nino conditions are no longer present off the 
coast of southern California and may terminate the closure prior to 
August 31.
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[FR Doc. E7-1450 Filed 1-29-07; 8:45 am]
BILLING CODE 3510-22-S