Proposed Rule to Improve Sea Turtle Bycatch Monitoring by NMF


									                                                                Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Proposed Rules                                               76265

                                                                                                                               * Elevation in feet (NGVD)
                                                                                                                                    + Elevation in feet
                                             Flooding source(s)                    Location of referenced elevation               # Depth in feet above                    Communities affected

                                                                                                                                   Effective      Modified

                                                                           Approximately 2,000 feet upstream of Rest           +942 ........           +943
                                                                             Home Road.
                                           East Tributary .............    At the confluence with McLin Creek .............    None ........           +943    Catawba County (Unincorporated Areas),
                                                                                                                                                                City of Conover.
                                           McLin Creek ...............     Approximately 1,000 feet upstream of                None ........           +982
                                                                             Keisler Road Southeast.
                                           Geitner Branch ...........      At the confluence with Henry Fork ...............   +887 ........           +890    Catawba County (Unincorporated Areas),
                                                                                                                                                                City of Hickory.
                                                                           Approximately 1,900 feet upstream of 7th            None ........         +1,080
                                                                             Avenue Southwest.
                                           Long Creek ................     At the confluence with McLin Creek .............    +861 ........           +860    Catawba County (Unincorporated Areas),
                                                                                                                                                                City of Claremont, City of Conover.
                                                                           Approximately 1,400 feet upstream of Rail-          None ........           +988
                                           Mull Creek ..................   Approximately 1,000 feet upstream of the            +820 ........           +819    Catawba County (Unincorporated Areas),
                                                                             confluence with Lyle Creek.                                                        City of Claremont, City of Conover.
                                                                           Approximately 500 feet upstream of 9th Av-          None ........         +1,002
                                                                             enue Northeast.

                                           * National Geodetic Vertical Datum.
                                           # Depth in feet above ground.
                                           + North American Vertical Datum.
                                                                                               Catawba County (Unincorporated Areas)
                                           Maps are available for inspection at the Catawba County Planning and Zoning Department, 100 A Southwest Boulevard, Newton, North Caro-
                                           Send comments to Mr. Tom Lundy, Catawba County Manager, P.O. Box 389, Catawba, North Carolina 28658.
                                           City of Claremont
                                           Maps are available for inspection at the City of Claremont Planning Department, 3288 East Main Street, Claremont, North Carolina.
                                           Send comments to The Honorable Glenn A. Morrison, Mayor of the City of Claremont, 3288 East Main Street, Claremont, North Carolina
                                           City of Conover
                                           Maps are available for inspection at the Conover City Hall, 101 First Street East, Conover, North Carolina.
                                           Send comments to The Honorable Bruce Eckard, Mayor of the City of Conover, P.O. Box 549, Conover, North Carolina 28613.

                                           (Catalog of Federal Domestic Assistance No.                Atmospheric Administration (NOAA),                      DATES: Written comments must be
                                           83.100, ‘‘Flood Insurance.’’)                              Commerce.                                               received on or before February 20, 2007.
                                              Dated: December 13, 2006.                               ACTION: Proposed rule, request for
                                                                                                                                                              ADDRESSES:   Comments on this proposed
                                           David I. Maurstad,                                         comments.
                                                                                                                                                              rule and requests for copies of the
                                           Director, Mitigation Division, Federal                                                                             Environmental Assessment and
                                           Emergency Management Agency, Department                    SUMMARY: NMFS proposes a regulation
                                           of Homeland Security.                                      to require vessels in state and federal                 Regulatory Impact Review (EA/RIR)
                                           [FR Doc. E6–21681 Filed 12–19–06; 8:45 am]                 fisheries operating in the territorial seas             should be addressed to the Chief,
                                                                                                      or exclusive economic zone of the                       Marine Mammal and Turtle Division,
                                           BILLING CODE 9110–12–P
                                                                                                      United States that are identified through               Office of Protected Resources, NMFS,
                                                                                                      the annual determination process                        1315 East-West Highway, Silver Spring,
                                                                                                      specified in the rule to take observers                 MD 20910.
                                           DEPARTMENT OF COMMERCE                                     upon NMFS request. NMFS proposes
                                                                                                      this measure to learn more about sea                    FOR FURTHER INFORMATION CONTACT:
                                           National Oceanic and Atmospheric                           turtle interactions with fishing                        Tanya Dobrzynski, (301) 713–2322.
                                           Administration                                             operations, to evaluate existing                        SUPPLEMENTARY INFORMATION:
                                                                                                      measures to reduce sea turtle takes, and
                                           50 CFR Parts 222 and 223                                   to determine whether additional                         Purpose
                                                                                                      measures to address sea turtle takes may
                                           [061107292–6292–01;110306A]                                be necessary. NMFS will pay the direct                    Under the Endangered Species Act of
                                                                                                      costs of the observer. NMFS also                        1973 (ESA), 16 U.S.C. 1531 et seq.,
                                           RIN 0648–AU81                                                                                                      NMFS is authorized to implement
                                                                                                      proposes to extend the number of days
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                                                                                                      from 30 to 180 that the agency may                      programs to conserve marine life listed
                                           Sea Turtle Conservation; Observer
                                                                                                      place observers in response to an                       as endangered or threatened.
                                           Requirement for Fisheries
                                                                                                      appropriate determination by the                         All sea turtles that occur in U.S.
                                           AGENCY:  National Marine Fisheries                         Assistant Administrator under its                       waters are listed as either endangered or
                                           Service (NMFS), National Oceanic and                       existing regulations.

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                                           76266             Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Proposed Rules

                                           threatened under the Endangered                         incidental takes are occurring, to                    under a Federal fishery management
                                           Species Act of 1973 (ESA), 16 U.S.C.                    evaluate whether existing measures are                plan, while the MMPA allows NMFS to
                                           1531 et seq.. The Kemp’s ridley                         minimizing or preventing interactions,                require observers in both Federal and
                                           (Lepidochelys kempii), leatherback                      and to determine whether additional                   non-federal fisheries depending on the
                                           (Dermochelys coriacea), and hawksbill                   measures are needed to conserve turtles.              determined level of interaction between
                                           (Eretmochelys imbricata) sea turtles are                                                                      fisheries and marine mammals.
                                                                                                   Other Procedures for Observer
                                           listed as endangered. Loggerhead                                                                              Secondary to collecting information on
                                           (Caretta caretta), green (Chelonia                                                                            fish and marine mammal bycatch
                                           mydas), and olive ridley (Lepidochelys                     NMFS has established a regulatory                  through placement of observers on
                                           olivacea) sea turtles are listed as                     procedure to place observers on vessels               fishing vessels via the Magnuson-
                                           threatened, except for breeding colony                  contingent upon a determination by the                Stevens Act and MMPA, NMFS has also
                                           populations of green sea turtles in                     NMFS Assistant Administrator that the                 collected data on sea turtle interactions
                                           Florida and on the Pacific coast of                     unauthorized take of sea turtles may be               in fisheries.
                                           Mexico and breeding colony                              likely to jeopardize their continued                     However, there are several limitations
                                           populations of olive ridleys on the                     existence. 50 CFR 223.206(d) (4). In this             and restrictions to using the MMPA or
                                           Pacific coast of Mexico, which are listed               regulation, NMFS limited observer                     Magnuson-Stevens Act to place
                                           as endangered. While some sea turtle                    coverage requirements within a fishery                observers to monitor potential sea turtle
                                           populations have shown signs of                         to 30 days. NMFS has used this                        interactions. The Magnuson-Stevens Act
                                           recovery, many populations continue to                  procedure to address immediate                        only provides NMFS authority to
                                           decline.                                                observer needs when fishery activity                  require observers on vessels in fisheries
                                              Incidental take, or bycatch, in fishing              and relatively high sea turtle strandings             managed under a Federal fishery
                                           gear is one of the main sources of sea                  have occurred simultaneously in a                     management plan. Thus, the authority
                                           turtle injury and mortality nationwide.                 particular area. However, these                       primarily covers fisheries operating in
                                           Section 9 of the ESA prohibits the take                 temporary observer requirements are                   Federal waters. The MMPA only allows
                                           (including killing, injuring, capturing,                designed to respond to acute problems,                NMFS to require observers on fisheries
                                           harming and harassing), even incidental                 and not for the design and                            that have been listed on the annual List
                                           take, of endangered sea turtles. Pursuant               implementation of monitoring programs                 of Fisheries as Category I (where
                                           to section 4(d) of the ESA, NMFS has                    that yield statistically valid information,           incidental mortality and serious injury
                                           issued regulations extending the                        which is the purpose of the observer                  of marine mammals is considered
                                           prohibition of take, with exceptions, to                requirements contained in this proposed               ‘‘frequent’’) and Category II (where
                                           threatened sea turtles. 50 CFR 223.306.                 rule. Further, because 30 days does not               incidental mortality and serious injury
                                           NMFS may grant exceptions to the take                   always provide the opportunity to                     of marine mammals is considered
                                           prohibitions with an incidental take                    investigate the cause of an event, such               ‘‘occasional’’) (16 U.S.C. 1387(c)), but
                                           statement or an incidental take permit                  as elevated sea turtle strandings, NMFS               not Category III (where there is a remote
                                           issued pursuant to section 7 or 10,                     is also proposing that observer coverage              likelihood of or no known incidental
                                           respectively, of the ESA. To do so,                     requirements under 50 CFR                             mortality and serious injury of marine
                                           NMFS must determine that the activity                   223.206(d)(4) may remain effective for                mammals), under which the majority of
                                           that will result in incidental take is not              180 days, with a possible 60-day                      fisheries are listed. Given that some
                                           likely to jeopardize the continued                      extension. The combined 240 days is                   state and Category III fisheries may be
                                           existence of the affected listed species.               consistent with the emergency                         a concern for sea turtle takes, neither the
                                           In some cases, NMFS has been able to                    regulatory provision in section 4(b)(7) of            MSA nor the MMPA provides broad
                                           make this determination because the                     the ESA.                                              enough authority to monitor fisheries
                                           fishery is conducted with a modified                       As a condition of authorizing                      that are likely to incidentally take sea
                                           gear or modified fishing practice that                  incidental take in certain fisheries,                 turtles. Additionally, because NMFS has
                                           NMFS has been able to evaluate.                         NMFS has also implemented observer                    largely relied on the MMPA to monitor
                                           However, for some Federal fisheries and                 coverage requirements under the                       non-federal fisheries, many monitoring
                                           most state fisheries, NMFS has not                      authority of the ESA on a fishery-by-                 programs are designed primarily to
                                           granted an exception primarily because                  fishery basis, such as in the shrimp                  monitor marine mammal bycatch in
                                           we lack information about fishery-turtle                trawl, summer flounder trawl, and                     fishing gear and not necessarily to
                                           interactions. Therefore, any incidental                 Virginia pound net fisheries. These                   optimize observation of sea turtle takes.
                                           take of sea turtles in those fisheries                  requirements have been implemented                    For instance, the sampling regime for
                                           remains unauthorized.                                   only after data from strandings,                      marine mammals may not adequately
                                              The most effective way for NMFS to                   temporary observer coverage, or other                 cover times and areas where sea turtle
                                           learn more about sea turtle-fishery                     sources indicated that prohibited sea                 interactions are most likely to occur.
                                           interactions is to place observers aboard               turtle takes were occurring, and as part              Due to observer sampling designs that
                                           fishing vessels. NMFS is proposing this                 of a regulatory program to address the                focus on marine mammal takes, the use
                                           regulation to establish procedures under                sea turtle takes in that fishery.                     of MMPA authority to monitor fisheries
                                           which each year NMFS will identify,                        NMFS has also placed observers on                  for sea turtle bycatch is not optimal. To
                                           pursuant to specified criteria and after                federally-managed vessels under the                   obtain statistically representative data
                                           notice and opportunity for comment,                     Magnuson-Stevens Fishery                              on sea turtle takes in various fisheries,
                                           those fisheries in which the agency                     Conservation and Management Act, as                   NMFS must design sampling programs
                                           intends to place observers. NMFS will                   amended in 1996 (Magnuson-Stevens                     based on sea turtle distribution and
                                           pay the direct costs (e.g., salary,                     Act), and the Marine Mammal                           abundance and directed toward those
                                                                                                   Protection Act, as amended in 1994
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                                           insurance) for the observer. Once                                                                             gear types and fisheries that are a
                                           selected, a fishery will be eligible to be              (MMPA), to document fish bycatch and                  priority concern for sea turtle recovery.
                                           observed for five years without further                 incidental mortality and serious injury                  NMFS has also relied on using
                                           action by NMFS. This will enable NMFS                   of marine mammals, respectively. The                  voluntary observer coverage to obtain
                                           to develop an appropriate sampling                      Magnuson-Stevens Act allows NMFS to                   data in several non-federally managed
                                           protocol to determine whether                           require observers on fisheries managed                fisheries. For example, from November

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                                                             Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Proposed Rules                                           76267

                                           1 - 20, 1999, 56 dead sea turtles washed                incidental take in the fishery. While                    (1) The requirements to obtain the
                                           ashore in a small area of Pamlico Sound,                these measures may be reducing the                    best available scientific information;
                                           North Carolina, in the vicinity of                      number of sea turtle takes in pound                      (2) The requirement that assignment
                                           Hatteras and Ocracoke Inlets. Thirty-five               nets, sea turtle strandings in the area               of observers is fair and equitable among
                                           of the sea turtles were Kemp’s ridleys,                 have continued despite the management                 fisheries and among vessels in a fishery;
                                           the most endangered species of sea                      measures. Other fisheries, such as                       (3) The requirement that no
                                           turtle. Many sink gillnet fishing vessels               inshore gillnet and purse seine fisheries             individual person or vessel, or group of
                                           were operating in the vicinity. North                   in the area, may also be contributing to              persons or vessels, be subject to
                                           Carolina state observers were placed on                 the problem and need to be further                    inappropriate, excessive observer
                                           a limited number of the gillnet boats to                evaluated.                                            coverage; and
                                           monitor sea turtle interactions. Because                   There are similar examples in other                   (4) The need to minimize costs and
                                           both state and NMFS’ observer                           areas around the United States where                  avoid duplication, where practicable.
                                           placement was voluntary, many of the                    more comprehensive and targeted                          Consistent with 16 U.S.C. 1881(b),
                                           fishermen elected not to carry observers,               observer coverage on fishing vessels is               vessels where the facilities for
                                           which resulted in limited coverage in                   needed to better grasp and address the                accommodating an observer or carrying
                                           areas where sea turtle interactions were                problem of sea turtle takes incidental to             out observer functions are so inadequate
                                           believed most likely to occur. Adequate                 fishing activities, such as the shrimp                or unsafe (due to size or quality of
                                           sampling occurred only after North                      fishery in the state and federal waters of            equipment, for example) that the health
                                           Carolina received an ESA section                        the southeast United States and the Gulf              or safety of the observer or the safe
                                           10(a)(1)(B) incidental take permit (67 FR               of Mexico. This proposed rule would                   operation of the vessel would be
                                           67150, November 4, 2002) and observer                   enable NMFS to monitor gear types,                    jeopardized, would not be required to
                                           coverage was a requirement of the                       such as try nets and skimmer trawls,                  take observers under this rule.
                                           permit. These events in North Carolina                  used in this fishery, which are not                      Observer programs designed or
                                           highlight that a voluntary observer                     currently required to use turtle excluder             carried out in accordance with this
                                           program limits the extent of coverage                   devices but that have been documented                 regulation would be required to be
                                           and hinders the collection of reliable                  to interact with sea turtles. Pot/trap and            consistent with existing observer-related
                                           data.                                                   gillnet fisheries in the state waters of the          NOAA policies and regulations, such as
                                                                                                   U.S. have also been documented to                     those under the Fair Labor and
                                           Sea Turtle/Fisheries Interactions                       interact with sea turtles; therefore, more            Standards Act (29 U.S.C. 201 et seq.),
                                              Numerous gear types have been                        information is needed on potential sea                the Service Contract Act (41 U.S.C. 351
                                           implicated in takes of sea turtles along                turtle interactions in these gear types/              et seq.), Observer Health and Safety
                                           the Atlantic, Gulf of Mexico, and Pacific               fisheries to better evaluate them. In                 regulations (50 CFR part 600), and other
                                           coasts. Because the issue of incidental                 addition, long-term, comprehensive                    relevant policies.
                                           takes is largely due to the type of fishing             coverage is needed to fill information                Annual Determination Process
                                           gear used, commercial and recreational                  gaps on sea turtle takes.
                                           fisheries in state and federal waters may                  Thus, NMFS proposes to amend the                      The Assistant Administrator for
                                           take sea turtles. Data available on the                 ESA regulations to specify that NMFS                  Fisheries, NOAA (AA) will make an
                                           extent of sea turtle interactions vary by               may place observers on recreational or                annual proposed and final
                                           gear type, area, and season. Nonetheless,               commercial fishing vessels. Consistent,               determination identifying which
                                           certain types of gear are more prone to                 regular monitoring via placement of                   fisheries may require observer coverage
                                           incidentally capturing sea turtles than                 observers on fishing vessels is needed to             to monitor potential interactions with
                                           others, depending on the way the gear                   gather useful data on sea turtle takes                sea turtles. The determination will be
                                           is fished and the time and area within                  and, where necessary, to evaluate                     based on the best available scientific,
                                           which it is fished.                                     existing measures and develop new                     commercial, or other information
                                              Fisheries that use, for example,                     management measures to reduce sea                     regarding sea turtle-fishery interactions;
                                           trawls, gillnets, seines, pound nets,                   turtle take in certain gear types. This               sea turtle distribution; sea turtle
                                           traps, pots, dredges, longlines, and hook               proposed action, issued under the                     strandings; fishing techniques, gears
                                           and line are potential sources of sea                   authority of the ESA, is necessary to                 used, target species, seasons and areas
                                           turtle take. Incidental take has been                   implement the prohibitions of take of                 fished; or qualitative data from logbooks
                                           documented in these gear types where                    listed species and to conserve sea turtles            or fisher reports.
                                           the distribution of sea turtles and                     listed as threatened or endangered.                      The AA will use the most recent
                                           fisheries overlaps. For example, NMFS                                                                         version of the annually published
                                           has used alternative monitoring                         Observer Program Design                               MMPA List of Fisheries (LOF) as the
                                           platforms to observe the VA pound net                      The design of any observer program                 universe of commercial fisheries for
                                           fishery. This monitoring revealed that                  implemented under this rule, including                consideration in addition to known
                                           sea turtle takes are a concern in the VA                how observers would be allocated to                   information on non-commercial
                                           pound net fishery. As a result, NMFS                    individual vessels, would vary among                  fisheries in a given area. The LOF
                                           has implemented management measures                     fisheries, fishing sectors, gear types, and           includes all known state and federal
                                           aimed at reducing sea turtle interactions               geographic regions and would                          commercial fisheries that occur in U.S.
                                           in pound net leaders in the southern                    ultimately be determined by the                       waters. The categorization scheme of
                                           portion of the Chesapeake Bay from May                  individual NMFS Regional Office,                      fisheries on the LOF would not be
                                           6–July 15 of each year, when sea turtles                Science Center, and/or observer                       relevant to this process; all fisheries in
                                           are known to be present (69 FR 24997,                   program. During the program design,                   the LOF would be used as the universe
                                           May 5, 2004). NMFS conducted an ESA                     NMFS would be guided by the                           of state and federal commercial fisheries
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                                           section 7 consultation on the pound net                 following standards in the distribution               to be considered for monitoring under
                                           fishery and determined that the fishery                 and placement of observers among                      this proposed rule. Unlike the LOF
                                           with the management measures was not                    fisheries identified in annual                        process, recreational fisheries likely to
                                           likely to jeopardize sea turtles and the                determinations and vessels in those                   interact with sea turtles on the basis of
                                           agency was then able to authorize                       particular fisheries:                                 the best available information may also

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                                           76268             Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Proposed Rules

                                           be included in the determination of                     be considered individual small entities.              process such data is not expected to
                                           fisheries to be monitored under this                    Given the nature of sampling programs                 occur on a frequent basis, rendering this
                                           rule.                                                   and limited NMFS resources, this rule                 an insignificant impact on individual
                                              On an annual basis, the AA, in                       will likely affect less than one hundred              fishermen.
                                           consultation with Regional                              fishermen at any given time.                             This rule proposes an annual
                                           Administrators and Science Center                          Individual small entities will incur no            notification process whereby the
                                           Directors, will determine which                         direct costs for complying with this                  Assistant Administrator for Fisheries
                                           fisheries NMFS intends to monitor. The                  observer requirement as NMFS will pay                 (AA) would make an annual
                                           fisheries considered for monitoring                     the direct costs associated with observer             determination identifying which
                                           under this proposed rule will be                        coverage (e.g., observer and related                  fisheries require observer coverage for
                                           published as both a proposed and final                  expenses). Potential indirect costs to                the purpose of monitoring potential sea
                                           determination in the Federal Register.                  individual small entities required to                 turtle takes. The determination will be
                                           Notice of the proposed determination                    take observers under this rule may                    based on the best available commercial
                                           will also be made in writing to                         include: lost space on deck for catch,                and biological data and will be
                                           individuals permitted for each fishery                  lost bunk space, and lost fishing time                published in the Federal Register as
                                           identified for monitoring. NMFS will                    due to time needed to process bycatch                 both proposed and final notices to the
                                           also notify state agencies and provide                  data. For all these potential indirect                public that the AA is implementing the
                                           notification through publication in local               costs, it is important to note that, due to           requirements specified in this section. A
                                           newspapers, radio broadcasts, and any                   limited resources and sampling                        30-day delay in effective date for
                                           other means as appropriate. Once                        protocols, effective monitoring will                  implementing observer coverage will
                                           included in the final determination, a                  rotate observers among a limited                      follow the annual notification, except
                                           fishery will remain eligible for observer               number of vessels in a fishery at any                 for those fisheries that were listed in the
                                           coverage for five years to enable the                   given time. Thus, the potential indirect              preceding annual notification or where
                                           design of an appropriate sampling                       costs to individual small entities further            the AA has determined that there is
                                           program and to ensure collection of                     described below are expected to be                    good cause to make the rule effective
                                           sufficient scientific data for analysis. If             minimal since observer coverage would                 without a 30-day delay. Annual
                                           NMFS determines that more than five                     only be required for a small percentage               notification will include, but not be
                                           years is needed to obtain sufficient                    of an individual’s total annual fishing               limited to, information on the fisheries
                                           scientific data, NMFS must include the                  time.                                                 to be sampled, geographic and seasonal
                                           fishery in the AA’s annual proposed                        Lost space on deck for catch is a                  scope, and level of coverage.
                                           determination again prior to the end of                 potential indirect cost to small entities.               For the reasons stated herein, the
                                           the fifth year. As part of its annual                   The indirect costs would potentially be               proposed rule to establish mandatory
                                           determination, NMFS will include, to                    less room to store catch or to house                  observer coverage is not likely to impose
                                           the extent practicable, information on                  another active fishermen. However, in                 a significant economic impact on a
                                           the fisheries or gear types to be sampled,              accordance with Observer Health and                   substantial number of small entities.
                                           geographic and seasonal scope of                        Safety standards, vessels too small to                   This proposed rule does not contain
                                           coverage, or any other relevant                         accommodate an observer will not be
                                                                                                                                                         a collection-of-information requirement
                                           information. A 30-day delay in effective                required to take an observer under this
                                                                                                                                                         subject to the Paperwork Reduction Act.
                                           date for implementing observer coverage                 rule. Thus, the individuals most likely
                                                                                                                                                            This proposed rule contains policies
                                           will follow the annual determination,                   to be affected by this indirect cost, will
                                                                                                                                                         with federalism implications as that
                                           except for those fisheries included in                  not likely be required to accommodate
                                                                                                                                                         term is defined in Executive Order
                                           earlier annual determinations within the                an observer.
                                                                                                      Lost bunk space is a potential cost in             13132. Accordingly, the Assistant
                                           previous five years.                                                                                          Secretary for Legislative and
                                              The timing of this process should be                 that a vessel may need to limit the
                                                                                                   number of working fishermen onboard                   Intergovernmental Affairs will provide
                                           coordinated to the extent possible with                                                                       notice of the proposed action to the
                                           the annual LOF publication process, as                  to accommodate an observer for
                                                                                                   overnight trips. While this could result              appropriate officials of affected state,
                                           specified in 50 CFR 229.8.                                                                                    local, and/or tribal governments to
                                                                                                   in lost fishing effort, and therefore lost
                                           Classification                                          catch, this would only be a potential                 solicit their input on the development of
                                                                                                   cost to that subset of fishing vessels for            the observer program in this proposed
                                              The AA has determined that this                                                                            rule.
                                           proposed rule is consistent with the                    which overnight fishing trips are a
                                           ESA and with other applicable law.                      regular occurrence. Furthermore, given                List of Subjects
                                              This action has been determined to be                that larger vessels are usually used for
                                                                                                   fishing involving multi-day trips, the                50 CFR Part 222
                                           not significant for purposes of Executive                                                                       Administrative Practice and
                                           Order 12866.                                            circumstances in which an observer
                                                                                                                                                         Procedure, Endangered and threatened
                                              The AA prepared an environmental                     would significantly displace fishing
                                                                                                                                                         species, Exports, Imports, Marine
                                           assessment for this proposed rule. A                    effort due to lost bunk space are not
                                           copy of the EA is available (see                        expected to occur with frequency. Thus,
                                                                                                                                                         50 CFR Part 223
                                           ADDRESSES).                                             for this and the reasons stated above, the
                                                                                                                                                           Endangered and threatened species,
                                              The Chief Counsel for Regulation of                  potential indirect cost of lost bunk space
                                                                                                                                                         Exports, Imports, Transportation.
                                           the Department of Commerce certified                    to individual small entities resulting
                                           to the Chief Counsel for Advocacy of the                from this rule is expected to be minimal.               Dated: December 14, 2006.
                                           Small Business Administration that this                    Lost fishing time due to time needed               Samuel D. Rauch III,
                                                                                                   to process sea turtle bycatch data is
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                                           proposed rule would not have a                                                                                Deputy Assistant Administrator for
                                           significant impact on a substantial                     another potential indirect cost to                    Regulatory Programs, National Marine
                                           number of small entities. The factual                   fishermen of this observer requirement.               Fisheries Service.
                                           basis for this certification is as follows:             However, while individually significant,                For the reasons set out in the
                                              For the purpose of this certification,               sea turtle bycatch events are generally               preamble, 50 CFR parts 222 and 223 are
                                           all fishermen affected by this rule will                rare occurrences. Thus, the need to                   proposed to be amended as follows:

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                                                             Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Proposed Rules                                              76269

                                           PART 222—GENERAL ENDANGERED                             a written notification of the proposed                placement of observers among fisheries
                                           AND THREATENED MARINE SPECIES                           determination will be sent to the                     and vessels in a particular fishery:
                                                                                                   address specified for the vessel in either               (1) The requirements to obtain the
                                              1. The authority citation for part 222               the NMFS or state fishing permit
                                           is amended by deleting Section 222.403                                                                        best available scientific information;
                                                                                                   application, or to the address specified
                                           also issued under 16 U.S.C. 1361 et seq.                for registration or documentation                        (2) The requirement that assignment
                                             Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C.          purposes, or upon written notification                of observers is fair and equitable among
                                           742a et seq.                                            otherwise served on the owners or                     fisheries and among vessels in a fishery;
                                             2. New subpart D is added to read as                  operator of the vessel. Additionally,                    (3) The requirement that no
                                           follows:                                                NMFS will notify state agencies and                   individual person or vessel, or group of
                                                                                                   provide notification through publication              persons or vessels, be subject to
                                           Subpart D—Observer Requirement                          in local newspapers, radio broadcasts,                inappropriate, excessive observer
                                           Sec.                                                    and any other means as appropriate.                   coverage; and
                                           222.401 Observer requirement.                           The proposed and final determinations
                                           222.402 Annual determination of fisheries               will include, to the extent practicable,                 (4) The need to minimize costs and
                                                to be observed; notice and comment.                information on fishing sector, targeted               avoid duplication, where practicable.
                                           222.403 Duration of selection; effective                gear type, target fishery, temporal and                  (b) Consistent with 16 U.S.C. 1881(b),
                                                date.                                              geographic scope of coverage, or other                vessels where the facilities for
                                           222.404 Observer program sampling.
                                                                                                   information, as appropriate.                          accommodating an observer or carrying
                                           Subpart D Observer Requirement                             (c) Fisheries listed on the most recent            out observer functions are so inadequate
                                                                                                   annual Marine Mammal Protection Act                   or unsafe (due to size or quality of
                                           § 222.401   Observer requirement.                       List of Fisheries in any given year, in               equipment, for example) that the health
                                              Any commercial or recreational                       accordance with 16 U.S.C. 1387, will                  or safety of the observer or the safe
                                           fishing vessel which operates within the                serve as the universe of commercial                   operation of the vessel would be
                                           territorial seas or exclusive economic                  fisheries to be considered for inclusion              jeopardized, would not be required to
                                           zone of the United States in a fishery                  in the annual determination. Select                   take observers under this rule.
                                           that is identified through the annual                   recreational fisheries suspected of
                                           determination process specified in                      interacting with sea turtles may also be              PART 223—THREATENED MARINE
                                           § 222.402 must carry aboard a NMFS-                     included in the annual determination.                 AND ANADROMOUS SPECIES
                                           approved observer upon request by the                      (d) Publication of the proposed and
                                           NMFS Assistant Administrator or a                       final determinations should be                          1. The authority citation for part 223
                                           NMFS Regional Administrator. NMFS                       coordinated to the extent possible with               continues to read as follows:
                                           will pay direct costs for the observer.                 the annual Marine Mammal Protection
                                                                                                   Act List of Fisheries process as specified               Authority: 16 U.S.C. 1531–1543; subpart B,
                                           Owners and operators must comply
                                                                                                   at 50 CFR 229.8.                                      § 223.12 also issued under 16 U.S.C. 1361 et
                                           with observer safety requirements
                                                                                                      (e) Inclusion of a fishery included in             seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).
                                           specified at 50 CFR 600.745 and the
                                           terms and conditions specified in the                   a proposed or final determination does                  2. In § 223.206, the second sentence of
                                           written notification.                                   not constitute a conclusion by NMFS                   paragraph (d)(4)(iv) is revised to read as
                                                                                                   that those participating in the fishery               follows:
                                           § 222.402 Annual determination of                       are illegally taking sea turtles.
                                           fisheries to be observed; notice and                                                                          § 223.206 Exceptions to prohibitions
                                           comment.                                                § 222.403    Duration of selection; effective         relating to sea turtles.
                                              (a) The Assistant Administrator, in                  date.
                                                                                                                                                         *     *     *     *     *
                                           consultation with Regional                                 (a) Fisheries included in the final
                                                                                                   annual determination in a given year                    (d) * * *
                                           Administrators and Science Center
                                           Directors, will make an annual                          will remain eligible for observer                       (4) * * *
                                           determination identifying which                         coverage under this rule for five years,                (iv) Procedures. * * * An emergency
                                           fisheries the agency intends to observe.                without need for NMFS to include the                  notification will be effective for a period
                                           This determination will be based on the                 fishery in the intervening proposed                   of up to 30 days and may be renewed
                                           following criteria:                                     annual determinations, to enable the                  for additional periods of up to 30 days
                                              (1) The extent to which the fishery                  design of an appropriate sampling
                                                                                                                                                         each, except that emergency placement
                                           operates in the same waters and at the                  program and to ensure collection of
                                                                                                                                                         of observers will be effective for a
                                           same time as sea turtles are present;                   scientific data. If NMFS wishes to
                                              (2) The extent to which:                                                                                   period of up to 180 days and may be
                                                                                                   continue observations beyond the fifth
                                              (i) The fishery operates at the same                 year, NMFS must include the fishery in                renewed for an additional period of 60
                                           time or prior to elevated sea turtle                    the proposed annual determination and                 days.* * *
                                           strandings; or                                          seek comment, prior to the expiration of              *     *     *     *     *
                                              (ii) The fishery uses a gear or                      the fifth year.                                       [FR Doc. E6–21739 Filed 12–19–06; 8:45 am]
                                           technique that is known or likely to                       (b) A 30-day delay in effective date for           BILLING CODE 3510–22–S
                                           result in incidental take of sea turtles                implementing observer coverage will
                                           based on documented or reported takes                   follow the annual notification, except
                                           in the same or similar fisheries; and                   for those fisheries that were included in
                                              (3) The extent to which NMFS intends                 a previous determination within the
jlentini on PROD1PC65 with PROPOSAL

                                           to monitor the fishery and anticipates                  preceding five years.
                                           that it will have the funds to do so.
                                              (b) The Assistant Administrator shall                § 222.404    Observer program sampling.
                                           publish the proposed determination in                     (a) During the program design, NMFS
                                           the Federal Register notice and seek                    would be guided by the following
                                           comment from the public. In addition,                   standards in the distribution and

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