SUPPLEMENTARY INFORMATION:

This action proposes to implement new reporting requirements and conservation measures under the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The purpose of the proposed rule is to comply with the terms and conditions set forth in the incidental take statement section of a biological opinion issued by the U.S. Fish and Wildlife Service (USFWS) regarding the implementation of Amendment 11 and to provide further conservation efforts for the threatened southern sea otter. These reporting requirements and conservation measures would require all coastal pelagic species (CPS) fishermen and vessel operators to employ avoidance measures when sea otters are present in the fishing area and to report any interactions that may occur between their vessel and/or fishing gear and the otters.

In accordance with the regulations implementing the Endangered Species Act (ESA), the National Marine Fisheries Service (NMFS) initiated an ESA section 7 consultation with USFWS regarding the possible effects of implementing Amendment 11 to the CPS FMP. The purpose of the Amendment was to achieve optimal utilization of the resource and equitable allocation of Pacific sardine harvest opportunity. On June 16, 2006, USFWS completed a biological opinion on Amendment 11 and concluded that it was not likely to jeopardize the continued existence of the southern sea otter. The final rule to implement Amendment 11 was then published on June 29, 2006 (71 FR 36999) and changed the framework for annual apportionment of the Pacific sardine harvest guideline along the U.S. Pacific coast.

These new measures and regulations would include:

1. CPS fishing boat operators and crew would be prohibited from deploying their nets if a southern sea otter is observed within the area that would be encircled by the purse seine.

2. If a southern sea otter is entangled in a net, regardless of whether the animal is injured or killed, such an occurrence must be reported within 24 hours to the Regional Administrator, NMFS Southwest Region.

3. While fishing for CPS, vessel operators must record all observations of otter interactions (defined as otters within encircled nets or coming into contact with nets or vessels, including but not limited to entanglement) with their purse seine net(s) or vessel(s). With the exception of an entaglement, which will be initially reported as described in #2 above, all other observations must be reported within 20 days to the Regional Administrator.

When contacting NMFS after an interaction, fishermen would be required to provide information regarding the location (latitude and longitude) of the interaction and a description of the interaction itself. If available, location information should also include: Water depth, distance from shore, and relation to port or other landmarks. Descriptive information of the interaction should include: whether or not the otters were seen inside or outside the net, if inside the net, had the net been completely encircled, did contact occur with net or vessel, the number of otters present, duration of interaction, otter's behavior during interaction, and measures taken to avoid interaction.

Classification

This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public reporting burden for this otter interaction requirement is estimated to average 10 minutes per individual per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of infromation technology. Send comments on these or any other aspects of the collection of information to NMFS Southwest Region at the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

These proposed specifications are issued under the authority of, and NMFS has preliminarily determined that it is in accordance with, the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and the regulations implementing the FMP.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

A fishing vessel is considered a “small” business by the U.S. Small Business Administration (SBA) if its annual receipts are not in excess of $3.5 million. Since all of the vessels fishing for CPS have annual receipts below $3.5 million they would all be considered small businesses under the SBA standards. Therefore this rule will not create disproportionate costs between small and large vessels/businesses.

Otter interactions as described in this proposed rule are extremely rare; therefore the burden to small businesses as a result of these new regulations is expected to be minimal. The only expected cost to the respondents will be the cost associated with contacting NMFS, which may be made through mail, phone, fax, or email. NMFS also does not anticipate a drop in profitability based on this rule, as the proposed action should not have a substantial effect on the methods fishermen use or the areas in which they fish. The overlap between the distribution of the southern sea otter and CPS fishing grounds is very limited. Where overlap does occur, a small portion of Monterey Bay, otter interactions with CPS fishermen have been very rare. Due to the limited potential for overlap the fishermen's ability to harvest CPS will not be effected.

NMFS has determined that there will not be a significant economic impact to a substantial number of these small entities. Therefore, NMFS did not prepare an Initial Regulatory Flexibility Analysis.

As a result, a regulatory flexibility analysis is not required and none has been prepared.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 660 as follows: