[Federal Register Volume 78, Number 171 (Wednesday, September 4, 2013)]
[Rules and Regulations]
[Pages 54548-54552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21487]



[[Page 54547]]

Vol. 78

Wednesday,

No. 171

September 4, 2013

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 660





Taking of Threatened or Endangered Marine Mammals Incidental to 
Commercial Fishing Operations; Issuance of Permit; Fisheries Off West 
Coast States; Highly Migratory Fisheries; California Drift Gillnet 
Fishery; Sperm Whale Interaction Restriction; Final Rule and Notice

  Federal Register / Vol. 78 , No. 171 / Wednesday, September 4, 2013 / 
Rules and Regulations  

[[Page 54548]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

RIN 0648-BD57
[Docket No. 130802674-3749-01]


Fisheries Off West Coast States; Highly Migratory Fisheries; 
California Drift Gillnet Fishery; Sperm Whale Interaction Restriction

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

ACTION: Temporary rule; emergency action; request for comments.

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SUMMARY: NMFS is issuing temporary regulations under the authority of 
Section 305(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) to: implement an immediate closure of the 
California thresher shark/swordfish drift gillnet (mesh size >=14 
inches) (DGN) fishery if one sperm whale is observed killed or 
seriously injured in DGN gear off California, and require all DGN 
fishing vessels to carry a NMFS-trained observer from August 15, 2013 
to January 31, 2014 in a 100% observer coverage area (Zone). The Zone 
covers nearly all areas in the U.S. exclusive economic zone (EEZ) 
deeper than the 1,100 fathoms (fm) (2,012 meters (m)) depth contour. 
Owners/operators of vessels intending to fish with DGN gear will be 
required to install, activate, carry and operate a vessel monitoring 
system (VMS) prior to embarking on a DGN fishing trip after the 
effective date of this rule.

DATES: This rule is effective September 4, 2013 through January 31, 
2014. Comments must be received on or before October 4, 2013.

ADDRESSES: You may submit comments on the temporary rule, identified by 
NOAA-NMFS-2013-0131 by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0131, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Fax: 562-980-4047; Attention: Craig Heberer.
     Mail: Craig Heberer, Southwest Regional Office, NMFS, 501 
W. Ocean Blvd., Ste. 4200, Long Beach, CA 90802.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Requests for copies of documents supporting this rule may be 
obtained from the Southwest Regional Office, NMFS, 501 W Ocean Blvd., 
Ste. 4200, Long Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT: Craig Heberer, telephone: 706-431-9440 
(303), fax: 562-980-4047, email: [email protected].

SUPPLEMENTARY INFORMATION: The DGN fishery is managed under the Federal 
Fishery Management Plan for U.S. West Coast Fisheries for Highly 
Migratory Species (HMS FMP). The HMS FMP was prepared by the Pacific 
Fishery Management Council (Council) and is implemented under the 
authority of the MSA by regulations at 50 CFR part 660.

Background

    NMFS takes this action in accordance with the MSA, the Endangered 
Species Act (ESA), and the Marine Mammal Protection Act (MMPA). The ESA 
requires the Federal government to protect and conserve species and 
populations that are endangered, or threatened with extinction, and to 
conserve the ecosystems on which these species depend. The MMPA 
prohibits, with certain exceptions, the ``take'' of marine mammals in 
U.S. waters and by U.S. citizens on the high seas, and the importation 
of marine mammals and products into the United States. All marine 
mammals are protected under the MMPA.
    During the 2010-2011 fishing season, a NMFS-trained observer 
recorded two sperm whales caught in the DGN fishery in U.S. Federal 
waters near the border with Mexico. One animal was dead when retrieved, 
the other was seriously injured. Sperm whales are listed as endangered 
under the ESA and are designated as depleted under the MMPA. In 2004, 
NMFS issued a biological opinion on the HMS FMP, including the DGN 
fishery, and an incidental take statement (ITS) for the FMP. The NMFS 
Sustainable Fisheries Division engaged in pre-consultation with the 
NMFS Protected Resources Division upon notice in June 2011 that the 
takes of two sperm whales during the 2010-2011 fishing season likely 
exceeded the ITS for the DGN fishery. As a result, consultation was 
reinitiated in July of 2012, with NMFS completing a biological 
assessment in September 2012 and a biological opinion in May 2013 
(http://swr.nmfs.noaa.gov/mm/Signed_DGN_BiOp_050213.pdf) that 
included a new ITS pertaining to whale bycatch contingent on the 
issuance of a MMPA 101(a)(5)(E) permit.
    The ESA exempts take of listed marine mammals through the issuance 
of an ITS only if such take is also permitted by section 101(a)(5)(E) 
of the MMPA. Without a permit under the MMPA, any incidental, but not 
intentional, take of ESA-listed marine mammals is not exempt from ESA 
Section 9 take prohibitions. The potential biological removal (PBR) is 
the maximum number of animals, not including natural mortalities, that 
may be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population. Given the 
determination that incidental takes of sperm whales by the DGN fishery 
during the 2010-2011 fishing season exceeded the PBR for the 
California-Oregon-Washington stock of sperm whales, the fishery, as 
currently configured, could not be issued an MMPA 101(a)(5)(E) permit. 
As a result, the ITS listed in the 2013 biological opinion for the DGN 
fishery would not exempt the fishery, as currently configured, from ESA 
Section 9. This situation also presents serious conservation and 
management problems in the fishery. If mortality and serious injury of 
the California-Oregon-Washington stock of sperm whales incidental to 
this fishery continues to exceed PBR, it could have a long-term adverse 
effect on the marine environment by preventing the California-Oregon-
Washington stock of sperm whales from reaching their optimum 
sustainable population level and existing as a significant functioning 
element in the ecosystem.
    Based on this information, NMFS is issuing short-term measures to 
reduce interactions with sperm whales during the 2013-14 fishing season 
in the DGN fishery. These measures for the 2013-2014 fishing season are 
needed to ensure that any serious injury or mortality to sperm whales 
in the DGN fishery does not exceed the PBR and to allow the provision 
of incidental take coverage under the ESA and MMPA for fishermen in the 
fishery. NMFS

[[Page 54549]]

currently has regulations addressing interactions with several species 
of marine mammals in the DGN fishery. The Pacific Offshore Cetacean 
Take Reduction Plan (Plan) at 50 CFR 229.31 includes measures (e.g., 
pingers, net extenders) to reduce serious injury and mortality of 
marine mammals in the fishery. NMFS reconvened the Pacific Offshore 
Take Reduction Team (Team) to recommend measures for the 2013-2014 
fishing season that reduce risks to sperm whales, in light of their 
potential biological removal level and the fishery's 2010 takes, such 
that the negligible impact determination conditions of MMPA 
101(a)(5)(E) could be met. The measures in this rule emerged from the 
two Team meetings that NMFS convened on July 31, 2013, and August 7, 
2013 for the purpose of developing recommendations for reducing sperm 
whale mortality/serious injury in the DGN fishery to below PBR. NMFS 
intends to convene the Team later this year or in early 2014 to develop 
long-term measures for reducing sperm whale (and other strategic 
stocks, as appropriate) mortality and serious injury in the fishery. 
NMFS would then amend the Plan's regulations pursuant to Section 118 of 
the MMPA, and advise the Council should an amendment to the FMP be 
required.

Management Measures Established by This Temporary Rule

    Consistent with ESA, MMPA, and MSA requirements, this rule will 
establish a fixed cap of one serious injury or mortality for sperm 
whales in the DGN fishery as determined by NMFS. If the cap is met, the 
DGN fishery will be closed for the remainder of the season (i.e., until 
January 31, 2014) consistent with this action being a short-term 
measure. The rule will also establish a ``100 percent observer-coverage 
zone'' (Zone) for the 2013-2014 DGN fishing season that is closed to 
DGN fishing unless the fishing vessel is carrying a NMFS-trained 
observer. This Zone is specifically defined by latitude and longitude 
coordinates set out at Sec.  660.713 (f). The Zone covers nearly all 
areas of the U.S. EEZ that are deeper than the 1,100 fm (2,012 m) depth 
contour; however, the boundary lines that define the Zone close some 
areas that are deeper or shallower than the 1,100 fm depth contour. The 
Zone runs both north and south of Point Conception from the Oregon-
California border to the Mexico-California border, generally along the 
1,100 fm (2,012 m) depth contour, with the exception of an area seaward 
of the Santa Lucia Escarpment, and any canyons/basins shoreward of the 
main north-south 1,100 fm (2,012 m) depth contour (regardless of depth) 
to facilitate monitoring and enforcement. Vessels that are not carrying 
a NMFS-trained observer may not conduct DGN fishing in the Zone. 
Vessels not carrying observers will need to take precautions in setting 
and retrieving nets when fishing proximate to the Zone to ensure 
vessels remain shoreward of the boundary. This restriction is being 
implemented because NMFS long term survey data indicate that on average 
90 percent of research vessel sightings of sperm whales in the 
California Current occurred in waters deeper than 2,000 m. 
Additionally, observer records indicate that only one interaction 
between the DGN fishery and sperm whales occurred in waters shallower 
than 1,100 fm since 1990; and this interaction was adjacent to the 
1,100 fm depth contour.

Implementation

Vessel Monitoring System

    Owners/operators of vessels intending to fish with large-mesh DGN 
gear will be required to have installed, activate, carry and operate 
vessel monitoring system (VMS) units that are type-approved by NMFS 
during the period of the DGN emergency rule. Owners and operators of 
vessels in the DGN fishery must: (1) Obtain a NOAA Office of Law 
Enforcement (OLE) type-approved mobile transceiver unit and have it 
installed on board the DGN fishing vessel in accordance with the 
instructions provided by NOAA OLE. You may obtain VMS installation and 
operation instructions from the NOAA OLE Northwest Division by calling 
888-585-5518; and (2) activate the mobile transceiver unit, submit an 
activation report at least 72 hours prior to leaving port on a DGN 
fishing trip, and receive confirmation from NOAA OLE that the VMS 
transmissions are being received before participating in the DGN 
fishery. Instructions for submitting an activation report may be 
obtained from the NOAA, OLE Northwest Division office by calling 888-
585-5518. An activation report must be submitted to NOAA OLE following 
reinstallation of a mobile transceiver unit or change in service 
provider before the vessel may be used to fish in a fishery requiring 
the VMS.

Activation Reports

    If you are a vessel owner who must use VMS and are activating a VMS 
transceiver unit for the first time or reactivating a VMS transceiver 
unit following a reinstallation of a mobile transceiver unit or change 
in service provider, you must fax NOAA OLE (206-526-6528) an activation 
report that includes: Vessel name; vessel owner's name, address and 
telephone number, vessel operator's name, address and telephone number, 
USCG vessel documentation number/state registration number; if 
applicable, the permit number the vessel is registered to; VMS 
transceiver unit manufacturer; VMS communications service provider; VMS 
transceiver identification; identification of the unit as primary or 
backup; and a statement signed and dated by the vessel owner confirming 
compliance with the installation procedures provided by NOAA OLE.

Transferring Ownership of VMS Unit

    Ownership of the VMS transceiver unit may be transferred from one 
vessel owner to another vessel owner if all of the following documents 
are provided to NOAA OLE: A new activation report, which identifies 
that the transceiver unit was previously registered to another vessel; 
a notarized bill of sale showing proof of ownership of the VMS 
transceiver unit; and documentation from the communications service 
provider showing proof that the service agreement for the previous 
vessel was terminated and that a service agreement was established for 
the new vessel.

Transceiver Unit Operation

    Operate and maintain the mobile transceiver unit in good working 
order continuously, 24 hours a day throughout the duration of the 
emergency rule. The mobile transceiver unit must transmit a signal 
accurately indicating the vessel's position at least once every hour, 
24 hours a day, throughout the duration of the emergency rule. Once a 
vessel remains in port for seven days or more, position reporting is 
required at least once every four hours; however, the mobile 
transceiver unit must remain in continuous operation at all times. Once 
the vessel leaves port, the position reporting frequency must resume to 
at least once every hour, 24 hours a day.
    When aware that transmission of automatic position reports has been 
interrupted, or when notified by NOAA OLE that automatic position 
reports are not being received, contact NOAA OLE by calling 888-585-
5518 and follow the instructions provided. Such instructions may 
include manually communicating the vessel's position to NOAA OLE or 
returning to port until the VMS is operable.
    After a fishing trip during which interruption of automatic 
position reports has occurred, replace or repair the mobile transceiver 
unit prior to the vessel's next fishing trip. Repair or

[[Page 54550]]

reinstallation of a mobile transceiver unit or installation of a 
replacement, including change of communications service provider, shall 
be in accordance with the instructions provided by NOAA OLE and require 
the same certification. Make the mobile transceiver units available for 
inspection by NOAA OLE personnel, USCG personnel, state enforcement 
personnel or any authorized officer. Ensure that the mobile transceiver 
unit is not tampered with, disabled, destroyed, operated, or maintained 
improperly. Pay all charges levied by the communication service 
provider as necessary to ensure continuous operation of the VMS 
transceiver units.

Declaration Reporting Requirements

    The operator of any vessel fishing with large mesh DGN gear (mesh 
size >=14 inches) for thresher shark/swordfish must provide NOAA OLE 
with a declaration report before the vessel leaves port on a trip in 
which the vessel is used to fish in U.S. ocean waters between 0 and 200 
nm offshore of California. Gear code declarations are made by calling 
NOAA OLE NW Division at 888-585-5518.
    The operator of a vessel fishing with DGN gear must provide a 
declaration report to NOAA OLE prior to leaving port on the first trip 
in which the vessel meets the requirement to install, activate, carry 
and operate a vessel monitoring system (VMS) unit. The vessel operator 
must send a new declaration report before leaving port on a trip in 
which a gear type that is different from the gear type most recently 
declared for the vessel will be used. A declaration report will be 
valid until another declaration report revising the existing gear 
declaration is received by NOAA OLE. During the period of time that a 
vessel has a valid declaration report on file with NOAA OLE, it cannot 
fish with a gear other than a gear type declared by the vessel. 
Declaration reports will include the vessel name and/or identification 
number, gear type to be used, and whether or not an observer will be 
present on the fishing trip. Upon receipt of a declaration report, NMFS 
will provide a confirmation code to confirm that a valid declaration 
report was received for the vessel. Vessel owners or operators must 
retain the confirmation code to verify that a valid declaration report 
was filed and the declaration requirement was met.
    Vessels fishing with DGN gear may declare more than one gear type. 
If a vessel fishing with DGN gear has an observer on board, the vessel 
may fish with declared gear types seaward of the eastern boundary of 
the Zone (generally, in areas seaward of the 1,100 fm (2,012 m) depth 
contour). However, if a vessel fishing with DGN gear does not have an 
observer on board, the vessel may only fish with declared gear types 
shoreward of the eastern boundary of the Zone (generally, in areas 
shoreward of the 1,100 fm (2,012 m) depth contour. The following gear 
type declaration codes are available for the thresher shark/swordfish 
DGN fishery: Open access highly migratory species line gear (Gear Code 
66 for Tuna); and other gear (Gear Code 69 for DGN or harpoon).

Pre-Trip Notification

    This rule establishes a pre-trip notification requirement for all 
DGN fishing trips. This requirement will assist the observer provider 
in deploying observers to cover 100 percent of fishing effort in the 
Zone and ensure representative observer coverage of the DGN fleet 
outside of the Zone. DGN vessel owners/operators will be required to 
notify the NMFS-designated observer provider at least 48 hours prior to 
departing on all fishing trips. Vessel owners/operators must provide 
their name, contact information, vessel name, port of departure, and 
estimated date and time of departure to the observer provider. Upon 
receipt of a pre-trip notification, the observer provider will notify 
the DGN vessel owner/operator whether their fishing trip has been 
selected for observer coverage. Frank Orth & Associates is the NMFS-
designated observer provider. Frank Orth & Associates will receive pre-
trip notifications at (800) 522-7622 or (562) 427-1822. Pre-trip 
notifications must be made between 8:00 a.m. and 5:00 p.m. Pacific 
time, Monday through Friday.

Fishery Closure Procedures

    In the event of a serious injury or mortality to a sperm whale, as 
determined by NMFS, during DGN fishing operations, the fishery will be 
closed through January 31, 2014. NMFS will notify vessel owners/
operators of a DGN fishery closure by VMS communication to the fleet 
stating when nets may no longer be deployed. Notification will also be 
made in the Federal Register, by postal mail, and a posting on the NMFS 
regional Web site.
    NMFS publishes this emergency action for implementing these short-
term management measures for 180 days, the maximum allowed without an 
extension, under MSA. NMFS does not expect the Zone to adversely impact 
the DGN fleet, because vessels without observers have flexibility to 
fish shoreward of the eastern boundary of the Zone (roughly, the 1,100 
fm (2,012 m) depth contour) to make up for lost fishing opportunities 
inside the Zone should an observer be unavailable.
    NMFS' policy guidelines for the use of emergency rules (62 FR 
44421; August 21, 1997) specify the following three criteria that 
define what an emergency situation is, and justification for final 
rulemaking: (1) The emergency results from recent, unforeseen events or 
recently discovered circumstances; (2) the emergency presents serious 
conservation or management problems in the fishery; and (3) the 
emergency can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process. NMFS' policy guidelines further provide that emergency action 
is justified for certain situations where it would prevent significant 
direct economic loss, or to preserve a significant economic opportunity 
that otherwise might be foregone. NMFS has determined that the issue of 
setting a cap of one serious injury/mortality for sperm whales, the 
exclusion of DGN fishing in the Zone without observers, and the VMS 
requirement meets the three criteria for emergency action for the 
reasons outlined below.
    The emergency results from recent, unforeseen events or recently 
discovered circumstances. NMFS' decision to not issue an MMPA 
101(a)(5)(E) permit for sperm whales in the DGN fishery in its current 
configuration and close to the August 15 start date of the fishery in 
nearshore waters presents an unforeseen event and therefore warrants 
emergency action. The agency was poised to issue the permit prior to 
requesting public comments and then revised its anticipated course 
during the decision-making process based on new information that 
indicated that take of sperm whales in the fishery exceeded PBR.
    This situation also presents serious conservation and management 
problems in the fishery. Serious injury or mortality of sperm whales at 
a level above PBR poses problems to the marine environment. Without 
issuance of a MMPA 101(a)(5)(E) permit, fishermen that incidentally 
seriously injure or kill any sperm whales during DGN fishing operations 
would not have incidental take coverage exempting the fishermen from 
take prohibitions under the ESA, predicated on MMPA requirements. This 
emergency action essentially establishes short-term measures for the

[[Page 54551]]

fishery, with the provision that one sperm whale interaction resulting 
from DGN fishing operations that has been determined by NMFS to be one 
serious injury or mortality would immediately close the fishery through 
January 31, 2014. Sperm whale interactions with the DGN fleet are rare, 
with sperm whale bycatch observed six times (10 animals) in over 8,300 
net sets since 1990. According to NMFS' Southwest Fisheries Science 
Center (SWFSC) scientists, published data, and recorded depths of 
observed takes in the DGN fishery, sperm whales are more likely to 
occur in waters deeper than 1,100 fm (2,012 m). This emergency action 
would require 100 percent observer coverage of DGN vessels fishing in 
the Zone (generally, seaward of the 1,100 fm (2,012 m) depth contour 
running both north and south of Point Conception) and therefore, would 
increase the likelihood of observing any sperm whale interactions and 
determining the resulting condition of the animal.
    The emergency can be addressed through emergency regulations for 
which the immediate benefits outweigh the value of advance notice, 
public comment, and deliberative consideration of the impacts on 
participants to the same extent as would be expected under the normal 
rulemaking process. The Team has the authority to develop management 
recommendations to NMFS to address sperm whale interactions, but this 
process would not promptly address sperm whale protection for the 
upcoming fishing season. There is no other action that NMFS can take 
through the normal rulemaking process that would enable the agency to 
implement the short-term management measures in time to reduce the risk 
of sperm whale mortality/serious injury in the DGN fishery to below PBR 
for the current DGN fishing season. An emergency action enables NMFS to 
monitor effort for the current fishing season in areas where sperm 
whales are most likely to occur. Therefore, the urgency to protect 
sperm whales through a final rule outweighs the value of providing 
prior public comment.

Classification

    The Assistant Administrator for Fisheries, NOAA, (AA) has 
determined that this emergency action to promulgate temporary 
regulations under the authority of section 305(c) of the MSA is 
necessary to respond to efforts for reducing serious injury/mortality 
to sperm whales in the DGN fishery and is consistent with the MSA, ESA, 
MMPA, and other applicable laws. The rule may be extended for a period 
of not more than 186 days as provided under section 305(c)(3)(B) of the 
MSA.
    Pursuant to 5 U.S.C. 553(b)(B), the AA finds good cause to waive 
prior notice and opportunity for advanced public comment. Prior notice 
and opportunity for advanced public comment would be contrary to the 
public interest, as delaying action intended to reduce serious injury/
mortality to sperm whales in the DGN fishery would increase the 
likelihood of exceeding PBR for the California-Oregon-Washington stock 
of sperm whales as established under the MMPA.
    The AA finds good cause under 5 U.S.C. 553(b)(B) that it is 
contrary to the public interest and impracticable to provide for prior 
notice and opportunity for the public to comment. As more fully 
explained above, the reasons justifying promulgation of this rule on an 
emergency basis make solicitation of public comment contrary to the 
public interest.
    Closing the exclusive economic zone off California to fishing in 
waters seaward of the 1,100 fm (2,012 m) depth contour to unobserved 
DGN vessels and setting a limit of one serious injury/mortality to 
sperm whales interacting with DGN gear provides for sperm whale 
protections. NMFS' long term research vessel sightings of sperm whales 
in the California Current indicate that 90 percent of sightings 
occurred in waters deeper than 1,100 fm (2,012 m). Further, NMFS' 
analyses of DGN observer data indicate that an average of approximately 
13 percent of total annual DGN fishing occurred in the Zone in years 
2009 through 2011. NMFS' SWFSC scientists have suggested that reducing 
spatial overlap of fishing effort and sperm whale habitat may be an 
effective means to reduce the risk of sperm whale bycatch. There is no 
action that NMFS can take through the normal rulemaking process that 
would enable NMFS to implement the requirement for observer monitoring 
of DGN vessels in the Zone and the cap of one sperm whale serious 
injury/mortality for the DGN fishery to reduce the bycatch risk of this 
species. This emergency action enables NMFS to keep the fishery 
operating while avoiding unnecessary adverse biological and economic 
impacts. Therefore, the urgency to protect sperm whales through a final 
rule outweighs the value of providing prior public comment. Although 
this action is being implemented without notice and request for 
advanced public comment, NMFS is seeking public comment on this rule 
for purposes of assessing the need to extend the rule or to identify 
other possible measures for long-term management.
    For these same reasons stated above, pursuant to 5 U.S.C. 
553(d)(3), the AA finds good cause to waive the full 30-day delay in 
effectiveness for this rule. It would be contrary to the public 
interest if this rule does not become effective immediately, because 
the DGN fishery prohibition to fish beyond of 75 nautical miles of 
shore is no longer in effect from August 15 through the following 
January 31 which coincides with swordfish becoming more prevalent in 
the California Current. Without this emergency rule, NMFS would not 
provide100 percent observer coverage in an area (the Zone) with higher 
concentrations of sperm whales and close the fishery in the event that 
there is one serious injury or mortality to a sperm whale in the DGN 
fishery. These measures are needed to provide adequate protections for 
sperm whales during the 2013-2014 DGN fishing season. For these 
reasons, there is good cause to waive the requirement for delayed 
effectiveness.
    Because notice and opportunity for comment are not required 
pursuant to 5 U.S.C. 553 or any other law, the analytical requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are 
inapplicable. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866. A Regulatory Impact Review was completed and is 
available upon request from the NMFS, Southwest Region (see ADDRESSES).

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 28, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the 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

0
1. The authority citation for part 660 continues to read as follows:

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


0
2. In Sec.  660.713, paragraph (f) is added to read as follows:


Sec.  660.713  Drift gillnet fishery.

* * * * *

[[Page 54552]]

    (f) Sperm whale take mitigation measures. (1) Drift gillnet (mesh 
size >=14 inches) fishing without a NMFS-trained observer is prohibited 
in the portion of the California EEZ bounded by lines connecting, in 
order, the following points:

--------------------------------------------------------------------------------------------------------------------------------------------------------
             Point                         North lat.              West long.
--------------------------------------------------------------------------------------------------------------------------------------------------------
A..............................  42[deg]0'0''.................  125[deg]10'12'..  Oregon Border at 1100 fm.
B..............................  40[deg]22'12''...............  124[deg]45'0''..  ......................................................................
C..............................  40[deg]22'12''...............  125[deg]45'0''..  ......................................................................
D..............................  38[deg]21'0''................  123[deg]52'12''.  ......................................................................
E..............................  37[deg]29'24''...............  123[deg]18'0''..  ......................................................................
F..............................  37[deg]29'24''...............  123[deg]30'36''.  ......................................................................
G..............................  37[deg]0'0''.................  123[deg]30'0''..  ......................................................................
H..............................  36[deg]36'0''................  122[deg]27'0''..  ......................................................................
I..............................  36[deg]16'12''...............  122[deg]31'12''.  ......................................................................
J..............................  35[deg]52'30''...............  122[deg]16'48''.  ......................................................................
K..............................  35[deg]0'0''.................  121[deg]45'0''..  ......................................................................
L..............................  34[deg]54'0''................  122[deg]0'0''...  ......................................................................
M..............................  34[deg]0'0''.................  122[deg]0'0''...  ......................................................................
N..............................  34[deg]0'0''.................  121[deg]9'0''...  ......................................................................
O..............................  32[deg]21'0''................  120[deg]0'0''...  ......................................................................
P..............................  31[deg]6'0''.................  118[deg]45'0''..  ......................................................................
Q..............................  30[deg]32'31''...............  121[deg]52'1''..  SW corner of CA EEZ.
R..............................  EEZ Western Edge.............  ................  200nm buffer from the U.S. Pacific Coast Shoreline.
S..............................  42[deg]0'0''.................  129[deg]0'0''...  NW border of OR EEZ.
A..............................  42[deg]0'0''.................  125[deg]10'12'..  Finish back at Point A.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (2) As soon as practicable following determination by the Regional 
Administrator that one serious injury to, or mortality of, a sperm 
whale has resulted from drift gillnet fishing during the period of this 
emergency rule, the Regional Administrator will contact the fleet via 
VMS communication and provide the effective date and time that all 
fishing by vessels registered for use under a drift gillnet permit are 
prohibited from swordfish fishing until January 31, 2014. Coincidental 
with the VMS communication, the Regional Administrator will also file a 
closure notice with the Office of the Federal Register for publication; 
notify all permit holders by postal mail, and a post a notice on the 
NMFS regional website.
    (3) Drift gillnet vessel owners/operators are required to notify 
the NMFS-designated observer provider at least 48 hours prior to 
departing on all fishing trips. Vessel owners/operators must provide to 
the observer provider their name, contact information, vessel name, 
port of departure, and estimated date and time of departure, and a 
telephone number at which the owner or operator may be contacted during 
the business day (8 a.m. to 5 p.m.) to indicate whether an observer 
will be required on the subject fishing trip.
    (4) Drift gillnet vessel owners/operators must provide NOAA OLE 
with a declaration report before the vessel leaves port on a trip in 
which the vessel will be used to fish swordfish with drift gillnet gear 
in U.S. ocean waters between 0 and 200 nm offshore of California.
    (5) Drift gillnet vessel owners are required to install a NMFS OLE 
type-approved mobile transceiver unit and to arrange for a NMFS OLE 
type-approved communications service provider to receive and relay 
transmissions to NMFS OLE prior to swordfish fishing during the period 
of this emergency rule. Vessel owners/operators shall perform the same 
requirements consistent with 50 CFR 660.14.

[FR Doc. 2013-21487 Filed 9-3-13; 8:45 am]
BILLING CODE 3510-22-P