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Fisheries in the Western Pacific; Western Pacific Pelagic Fisheries; Hawaii Shallow-set Longline Fishery
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 26, 2007 (Volume 72, Number 37)]
[Rules and Regulations]
[Page 8289-8291]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe07-17]
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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.
? For the reasons set out in the preamble, 50 CFR part 665 is amended as
follows:
PART 665--FISHERIES IN THE WESTERN PACIFIC
? 1. 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. E7-3243 Filed 2-23-07; 8:45 am]
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