[Federal Register Volume 79, Number 99 (Thursday, May 22, 2014)]
[Rules and Regulations]
[Pages 29377-29379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11658]



National Oceanic and Atmospheric Administration

50 CFR Part 660

RIN 0648-BD57
[Docket No. 130802674-4422-02]

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

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

ACTION: Temporary rule.


SUMMARY: Pursuant to its emergency authority, NMFS renews an emergency 
action that implemented, among other measures, mandatory monitoring 
(VMS) and observer requirements (pre-trip notification and a 100% deep 
water closure zone unless a NMFS-certified observer was on board) in 
the California thresher shark/swordfish drift gillnet (mesh size >=14 
inches) (DGN) fishery during the August 15, 2013 to January 31, 2014 
fishing season, and would have immediately shut down the fishery for 
the calendar year in the event of a sperm whale interaction in the DGN 
fishery. This renewing action is necessary to ensure that the 
conservation measures continue to provide protection for sperm whales 
until permanent measures are in place. Specifically, per 
recommendations of the Pacific Offshore Cetacean Take Reduction Team, 
NMFS is currently developing a rule under authority of the Marine 
Mammal Protection Act (MMPA) in order to adequately monitor the DGN 
fishery and reduce the risk of sperm whale interactions.

DATES: This rule is effective from May 22, 2014, through August 5, 
2014. Comments must be received on or before June 23, 2014.

ADDRESSES: Requests for copies of documents supporting the temporary 
rule may be obtained from the West Coast Regional Office, NMFS, 501 W. 
Ocean Blvd., Ste. 4200, Long Beach, CA 90802.
    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 West Coast 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 Magnuson-Stevens Fishery Conservation and Management 
Act (MSA) by regulations at 50 CFR part 660.


    On September 4, 2013, NMFS published in the Federal Register a 
temporary rule (78 FR 54548) for emergency action to modify the 
California swordfish/thresher shark DGN fishery for the 2013-2014 
fishing season under authority of section 305(c)(1) of the MSA. The 
purpose of

[[Page 29378]]

the temporary rule stems from the observed entanglement of two sperm 
whales by a DGN fishing vessel in 2010 and the need to reduce the risk 
associated with sperm whale bycatch in the DGN fishery for the 2013-
2014 fishing season, in accordance with the MSA, Endangered Species Act 
(ESA) and the MMPA. Implementation of the temporary regulations allowed 
NMFS to issue an MMPA 101(a)(5)(E) permit providing coverage for sperm 
whale takes in the DGN fishery. The temporary regulations implemented, 
among other measures, mandatory monitoring (VMS) and observer 
requirements (pre-trip notification and a 100% deep water closure zone 
unless a NMFS-certified observer was on board), and would have 
immediately shut down the fishery for the calendar year in the event of 
a sperm whale interaction. A full discussion of the background and 
justification for the temporary rule emergency measures was presented 
in the preamble prepared for that action and is not repeated here.
    The temporary rule expired on January 31, 2014, which corresponded 
with the traditional end of the DGN fishing season. From February 1 
through April 30, the DGN fishery is prohibited from operating inside 
the West Coast Exclusive Economic Zone (EEZ). See 50 CFR 660.713(d). No 
fishing effort has occurred during this period due to the distance 
involved in transiting to fishing areas beyond the EEZ, coupled with a 
lack of swordfish availability. The DGN fishery is allowed access 
inside the EEZ off the coasts of California and Oregon from May 1 
through August 14, but is prohibited from operating within 75 miles of 
the coast. Very little DGN fishing effort typically takes place during 
this time due mainly to the lack of swordfish availability. The core of 
the DGN fishery, and virtually all of the contemporary fishing effort, 
takes place from August 15 through January 31. NMFS took public comment 
on the original temporary rule commencing September 4, 2013, and ending 
on October 4, 2013.
    This action is necessary to retain in force the earlier temporary 
regulations, while NMFS develops a permanent rule to adequately monitor 
the DGN fishery and minimize sperm whale interactions by the fishery. 
Without the temporary regulations remaining in place, the DGN fishery 
may not be properly monitored, and therefore might risk additional 
negative sperm whale interactions, contrary to the MMPA and ESA.


    The Assistant Administrator for Fisheries, NOAA (AA) finds that 
providing the public with notice and an opportunity comment on this 
action would be contrary to the public interest, and therefore waives 
this requirement of the Administrative Procedure Act (APA).
    An owner/operator of a federally-permitted DGN fishing vessel has 
informed NMFS that he may fish for thresher shark/swordfish on or after 
May 1, 2014, when the DGN fishery can legally operate within the EEZ, 
but outside 75 miles from the coast of California. Prohibiting 
unobserved DGN vessels from fishing in the EEZ off California in waters 
seaward of the 1,100 fm (2,012 m) depth contour, and setting a limit of 
one serious injury/mortality to sperm whales interacting with DGN gear, 
will protect sperm whales from potential interactions with the DGN 
fishery, such as occurred in 2010, where two sperm whales became 
entangled in DGN fishing gear. 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 
deeper water zone in years 2009 through 2011. NMFS' Southwest Fisheries 
Science Center 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 deeper water area and the cap of one sperm whale serious injury/
mortality for the DGN fishery to reduce the bycatch risk of this 
species before the DGN fishery begins actively fishing in waters 
inhabited by sperm whales. This emergency action enables NMFS to keep 
the fishery operating while a permanent rule is under development, thus 
avoiding unnecessary adverse biological and economic impacts.
    Without this rule, sperm whales will be at risk of unauthorized 
takings, possibly leading to injury or death, which is contrary to the 
public interest in protecting these marine mammals. Due to the urgent 
need to protect sperm whales before NMFS issues any final rule, NMFS is 
waiving the public notice and opportunity for comment under the APA. 
However although this action is being implemented without notice and 
request for advance public comment, NMFS is seeking public comment on 
this rule for purposes of identifying possible measures for long-term 
    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 can fish within 75 nautical miles of shore starting May 
1 through August 14. Without this emergency rule, NMFS would not 
provide 100 percent observer coverage in the deeper water area with 
higher concentrations of sperm whales, or be able to 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 2014-2015 DGN fishing season 
while a permanent rule is under development. For these reasons, there 
is good cause to waive the requirement for delayed effectiveness. The 
need to implement these measures in a timely manner constitutes good 
cause under authority contained in 5 U.S.C. 553(d)(3), to make the rule 
effective immediately upon publication in the Federal Register.
    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.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 14, 2014.
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 660 is amended 
as follows:


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

    Authority:  16 U.S.C. 1801 et seq. and 16 U.S.C. 773 et seq.

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

[[Page 29379]]

Sec.  660.713  Drift gillnet fishery.

* * * * *
    (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 August 5, 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 Web site.
    (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. 2014-11658 Filed 5-21-14; 8:45 am]