[Federal Register Volume 72, Number 37 (Monday, February 26, 2007)]
[Rules and Regulations]
[Pages 8289-8291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3243]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 061227341-7031-02; I.D. 120406A]
RIN 0648-AU99


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to 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 final rule allows for an immediate closure of the fishery 
to enhance protection for sea turtles.

DATES: This final rule is effective March 28, 2007.

ADDRESSES: Copies of this final rule, the regulatory amendment, 
environmental assessment, regulatory impact review, and regulatory 
flexibility analyses may be obtained from William L. Robinson, 
Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani 
Boulevard, Suite 1110, Honolulu, HI 96814-4700.

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: http://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 Western Pacific Fishery Management 
Council (Council) under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens 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) set the maximum allowable 
annual limits on the numbers of interactions between longline fishing 
operations and sea turtles. These limits apply to physical interactions 
with fishing gear deployed from vessels registered under Hawaii 
longline limited-access permits while engaged in shallow-set longline 
fishing, i.e., fishing that is directed at swordfish. 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.
    Pursuant to a Section 7 consultation under the Endangered Species 
Act, NMFS is required by a 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 7 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 satellite telephones, and other communication methods were 
considered ineffective for immediately notifying vessels at sea of a 
closure. More effective means of providing immediate notification to 
active

[[Page 8290]]

fishermen now exist; NMFS observers carry satellite telephones that 
enable effective communications between NMFS and each shallow-set 
longline 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, an emergency rule was issued 
that suspended the 7-day delay in effectiveness when closing the 
fishery; the emergency rule was effective on March 20, 2006 (71 FR 
14416, March 22, 2006). NMFS published a notification closing the 2006 
shallow-set fishery from March 20, 2006, through December 31, 2006 (71 
FR 14824, March 24, 2006). When the fishery was closed, NMFS also 
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. NMFS subsequently published a document 
extending the emergency rule that suspended the advance notice 
provision until March 19, 2007 (71 FR 54769, September 19, 2006).
    The intent of the final rule is to enhance the protection for sea 
turtles through the permanent removal of the 7-day delay in 
effectiveness when closing the Hawaii-based shallow-set longline 
fishery as a result of reaching turtle interaction limits.
    Additional background information on this final rule may be found 
in the preamble to the proposed rule published on January 16, 2007 (72 
FR 1700), and is not repeated here.

Comments and Responses

    On January 16, 2007, NMFS published a notice of the proposed rule 
(72 FR 1700). The public comment period for the notice ended on January 
31, 2007. NMFS received 1,038 comments from the public; nearly all were 
identical form letters received via email. All of the public comments 
supported this action, and some commenters provided additional remarks 
on the proposed rule. NMFS responds to those additional comments that 
are relative to this action, as follows:
    Comment 1: The longline fishery should be closed permanently to 
protect sea turtles.
    Response: NMFS and the Council believe that a well-managed and 
economically-viable fishery, with the proper mechanisms in place to 
protect threatened and endangered species, can coexist with sea 
turtles. Thus, a permanent closure of the shallow-set swordfish fishery 
was not a management alternative considered by the Council or NMFS at 
this time.
    Comment 2: The management alternative, discussed by the Council but 
not recommended to NMFS for rulemaking, that should have been chosen 
would establish short-term time and/or area closures for the shallow-
set fishery designed to provide protection for sea turtles beyond 
measures already in place.
    Response: Although the Council did not recommend this alternative 
for rulemaking, NMFS agrees that well-defined time and area management 
measures would also meet the purpose and need for this action. 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 are not preferred at this time. To design and implement 
such measures, additional information is needed about sea turtle 
migration and foraging behavior, and the nature of interactions between 
fishing gear and sea turtles. The Council and NMFS may revisit such 
management alternatives in the future, if needed and practicable.
    Comment 3: NMFS should improve the collection of information about 
sea turtle interactions in the fishery, and provide this information 
more quickly to the fishing community and interested public, including 
regular updates to PIRO's turtle interaction web page. NMFS PIRO and 
NMFS Southwest Regional Office (SWRO) should also coordinate their 
management efforts for shared resources, including sea turtles.
    Response: Advances in communication systems allow for more 
effective and near real-time transfer of information about the 
interactions between turtles and fishing operations. Indeed, PIRO's 
public web site is updated twice monthly, or when a turtle interaction 
is documented, with the goal of keeping the regulated fishing industry 
and the general public apprised of developments. For the management of 
shared resources, NMFS PIRO and SWRO maintain close communication, and 
work together in the development of collaborative research, protection 
strategies, and management measures.

Changes to the Proposed Rule

    No changes to the proposed rule were made in this final rule.

Classification

    The NOAA Assistant Administrator for Fisheries (AA) determined that 
this FMP amendment is necessary for the conservation and management of 
the affected fisheries, and that the action is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and other applicable laws.
    An Environmental Assessment (EA) was prepared for this action, and 
the AA concluded that there will be no significant impact on the human 
environment as a result of this rule. NMFS determined that the 
preferred management alternative has the greatest likelihood of 
achieving the purpose and need for this Federal action. In addition, 
all beneficial and adverse impacts of this action have been addressed 
to reach the conclusion of no significant impact. A copy of the EA is 
available from William L. Robinson (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Consistent with section 604 of the Regulatory Flexibility Act, NMFS 
prepared a final regulatory flexibility analysis (FRFA) for the 
regulatory amendment, as described below.
    NMFS prepared this FRFA for the final rule. This FRFA incorporates 
the initial regulatory flexibility analysis (IRFA). The Classification 
section in the proposed rule included a detailed summary of the 
analysis contained in the IRFA, and that discussion is not repeated in 
its entirety here. The need for and the objectives of the action are 
explained in the preambles to the proposed rule and final rule and are 
not repeated here. This action is taken under authority of the 
Magnuson-Stevens Act and regulations at 50 CFR part 665. No comments 
were received on the IRFA or on the economic impacts of the proposed 
rule.
    Based on recent levels of participation in the shallow-set longline 
fishery, it is estimated that approximately 35 shallow-set vessels may 
be affected by this rulemaking. All are considered to be small entities 
as defined by the Small Business Administration. Any fish-harvesting 
business is a small business if it is independently-owned and operated, 
not dominant in its field of operation, and has annual receipts not in 
excess of $4 million. 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.
    The loss in revenues could be mitigated by providing vessels with 
an

[[Page 8291]]

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 (shifting the shallow-set fishing season) and 4 (limited 
time/area closures) 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. Also, to design and 
implement such measures as identified in Alternative 4, additional 
information is needed about sea turtle migration and foraging behavior, 
and the nature of interactions between fishing gear and sea turtles.
    There are no recordkeeping or reporting requirements associated 
with this final rule.

Small Business Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
a small entity compliance guide (the guide) was prepared. The guide 
will be sent to all holders of permits for the Hawaii-based longline 
fishery. Copies of the small business compliance guide are available 
from the William L. Robinson (see ADDRESSES) and are also available at 
the NMFS PIRO web site http://www.fpir.noaa.gov.

List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaii, Hawaiian natives, Northern Mariana Islands, 
Pacific Remote Island Areas, Reportingand recordkeeping requirements.

    Dated: February 20, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 665 is amended as 
follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for part 665 continues to read as follows:

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

0
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).
* * * * *

0
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. E7-3243 Filed 2-23-07; 8:45 am]
BILLING CODE 3510-22-S