        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 665
        [Docket No. 100618274-0377-01]
        RIN 0648-AY92
        Fisheries in the Western Pacific; Hawaii Bottomfish and Seamount Groundfish; Management Measures for Hancock Seamounts to Rebuild Overfished Armorhead

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          This proposed rule would continue a moratorium on fishing for bottomfish and seamount groundfish at the Hancock Seamounts until the overfished U.S. stock of pelagic armorhead (Pseudopentaceros wheeleri) is rebuilt. This proposed rule would also reclassify the management area around the Hancock Seamounts as an ecosystem management area. The intent of the continued moratorium is to facilitate rebuilding of the armorhead stock, and the intent of the ecosystem management area is to facilitate research on armorhead and other seamount groundfish.

          DATES:
          Comments on the amendment must be received by October 14, 2010.

          ADDRESSES:
          Comments on the proposed rule, identified by 0648-AY92, may be sent to either of the following addresses:

          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov; or
          • Mail: Mail written comments to Michael D. Tosatto, Acting Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814-4700.

          Instructions: Comments must be submitted to one of these two addresses to ensure that the comments are received, documented, and considered by NMFS. Comments sent to any other address or individual, or received after the end of the comment period, may not be considered. Comments will be posted for public viewing after thecomment period has closed. All comments received are a part of the public record and will generally be posted to www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the commenter may be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “NA” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

          Amendment 2 to the Fishery Ecosystem Plan for the Hawaiian Archipelago contains an environmental assessment and background information, and is available from www.regulations.gov and from the Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or web site www.wpcouncil.org.

          FOR FURTHER INFORMATION CONTACT:
          Jarad Makaiau, NMFS PIR Sustainable Fisheries, 808-944-2108.

        SUPPLEMENTARY INFORMATION:
        This document is also available at www.gpoaccess.gov/fr.
        Fishing for pelagic armorhead is managed under the Fishery Ecosystem Plan for the Hawaiian Archipelago (FEP). Armorhead are overfished as a result of over-exploitation by foreign vessels in international waters, dating back to at least the 1970s. Although there has never been a U.S. fishery targeting this fish, continued exploitation outside the U.S. Exclusive Economic Zone (EEZ) by foreign fleets has kept the stock in an overfished condition.
        The Hancock Seamounts are the only known armorhead habitat within the EEZ. These seamounts lie west of 180° W. and north of 28° N., to the northwest of Kure Atoll in the Northwestern Hawaiian Islands. The Council and NMFS have responded to the overfished condition of armorhead with a series of four, 6-year domestic fishing moratoria at the Hancock Seamounts, beginning in 1986. The current 6-year moratorium expires on August 31, 2010. Although there would be a short time period between the expiration of the current moratorium and implementation of this rule, if approved, the likelihood of a new Hawaii-based domestic armorhead fishery developing is discountable. The Hancock Seamounts are a relatively small and isolated fishing area, and the costs of starting up fishing operations to enter this fishery would be prohibitive relative to the potential fishing yield during the very short time that the area would be open. Additionally, existing domestic North Pacific trawl vessels would not be allowed to fish at Hancock Seamounts because trawls are prohibited fishing gear in the U.S. Pacific Islands.
        From July 2009 to August 2010, the Council developed Amendment 2 to the Hawaii FEP to rebuild the armorhead stock pursuant to the Magnuson-Stevens Act; the amendment is currently undergoing Secretarial review (75 FR 51237, August 19, 2010). The Council recommended in Amendment 2 that NMFS establish a minimum rebuilding time of 35 years for the U.S. portion of the armorhead stock. The Council also recommended that NMFS classify the portion of the EEZ surrounding the Hancock Seamounts as an ecosystem management area, and extend the moratorium at Hancock Seamounts until the stock is rebuilt. In response to these recommendations, NMFS developed this proposed rule to implement the latter two recommendations.
        The Council and NMFS recognize that, because less than five percent of the armorhead habitat lies within U.S. jurisdiction, rebuilding of the stock must be accomplished through coordinated international management. Nonetheless, a prohibition on all armorhead catches in U.S. waters would provide the maximum protection available for armorhead stocks in U.S. waters.

        The current moratorium applies to all bottomfish and seamount groundfish, and the proposed moratorium would continue to do so. While only armorhead are overfished, other bottomfish and seamount groundfish are caught with the same gear type as armorhead. Opening the Hancock Seamount fishery to non-armorhead fish would increase the likelihood of incidental catches of armorhead, resulting in possible delays to rebuilding the stock. In addition, the fishing gear (anchors, weighted lines, and hooks) used to target non-armorhead fish, or lost on fishing grounds, has the potential to impact armorhead essential fish habitat and habitat areas of particular concern. For these reasons, all bottomfish and seamount groundfish have been included in past fishing moratoria at Hancock Seamounts, and are also included in this proposed rule.
        NMFS anticipates that further research will be necessary for the Regional Administrator to determine when armorhead stocks are rebuilt and could support a domestic fishery. Specifically, research must be conducted to obtain better information about armorhead life history, ecological information such as food-web dynamics and essential fish habitat, population dynamics, and fishery-independent information at the population level. Additionally, the Council has identified the need for habitat mapping and characterization, and fish distribution and abundance by habitat types. This information is necessary to determine whether the status of the stock could support a domestic fishery at Hancock Seamounts in the future.
        Classifying the portion of the EEZ around the Hancock Seamounts as an ecosystem management area would acknowledge the significance of the area as a monitoring and research site for ecological studies on armorhead and other bottomfish and seamount groundfish and their associated benthic habitats. The ecosystem management area would also serve as the area in which the maximum U.S. contribution to rebuilding of the armorhead stock would occur. Hancock Seamounts could also serve as a control site for future research that assesses the effectiveness of management actions being considered by other nations and regional fishery management organizations, such as seasonal closures and bank-specific closures in international waters adjacent to Hancock Seamounts.

        Additional information and analyses may be found in Amendment 2, available from the Council (see ADDRESSES).
        To be considered, comments on this proposed rule must be received by October 14, 2010, not postmarked or otherwise transmitted by that date.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the fishery ecosystem plan for Hawaii, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        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. The analysis follows:

          Pelagic armorhead (Pseudopentaceros wheeleri) is a management unit species under the Fishery Ecosystem Plan for the Hawaiian Archipelago. Armorhead are overfished as a result of over-exploitation by foreign vessels in international waters. There has never been a U.S. fishery targeting this fish, but continued exploitation by foreign fleets has kept the stock in an overfished condition. The Western Pacific Fishery Management Council (Council) and National Marine Fisheries Service (NMFS) have responded to the overfished condition of armorhead with a series of four, 6-year domestic fishing moratoria, beginning in 1986, around the Hancock Seamounts. These seamounts are the only known armorhead habitat in the U.S. Exclusive Economic Zone (EEZ). The current 6-year moratorium expires on August 31, 2010.
          The Council developed Amendment 2 to the Hawaii fishery ecosystem plan to establish rebuilding requirements pursuant to Magnuson-Stevens Act section 304(e)(4). Amendment 2 would: (1) continue a moratorium on fishing for armorhead and other bottomfish and seamount groundfish until the armorhead stock is rebuilt; (2) establish a minimum rebuilding time of 35 years for the U.S. portion of the armorhead stock; and (3) classify the portion of the EEZ around the Hancock Seamounts as an ecosystem management area.
          The fishing moratorium continues to apply to all bottomfish and seamount groundfish. While only armorhead are overfished, other bottomfish and seamount groundfish are caught with the same gear type as armorhead. Thus, opening the fishery to non-armorhead fish increases the likelihood of incidental catches of armorhead, resulting in possible delays to rebuilding the stock. In addition, the fishing gear (anchors, weighted lines, and hooks) used to target non-armorhead fish, or lost on fishing grounds, may impact armorhead essential fish habitat and habitat areas of particular concern. For these reasons, all bottomfish and seamount groundfish have been included in the fishing moratoriums at Hancock Seamounts in the past, and are also included in this action. The intent of the continued moratorium and minimum rebuilding time is to facilitate rebuilding of the armorhead stock, and the intent of the ecosystem management area is to facilitate research on armorhead and other seamount groundfish. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule.
          This proposed rule does not duplicate, overlap, or conflict with other Federal rules. All fishing vessels having the potential to participate in this fishery are considered to be small entities under the current Small Business Administration definition of small fish-harvesting businesses (gross receipts not in excess of $ 4.0 million). There are no additional small entities that could be affected by this proposed rulemaking.
          There has never been any U.S. fishery at Hancock Seamounts, nor has there been any recent interest in starting one, so this proposed rule would not affect the profitability of fishing businesses under Federal management. Therefore, there are no disproportionate economic impacts from this proposed rule based on home port, gear type, or relative vessel size. For these reasons, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), it has been determined that this proposed rule will not have a significant economic impact on a substantial number of small entities, based on the pre-existing status of U.S. fishery for armorhead and other bottomfish and seamount groundfish at Hancock Seamounts.

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

          List of Subjects in 50 CFR Part 665
          Armorhead, Bottomfish, Fisheries, Fishing, Hancock Seamounts, Hawaii, Seamount groundfish.

          Dated: August 24, 2010.
          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 proposed to be 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 § 665.202, revise paragraph (a)(3) to read as follows:

            § 665.202
            Management subareas.
            (3) Hancock Seamounts Ecosystem Management Area means that portion of the EEZ in the Northwestern Hawaiian Islands west of 180° W. long. and north of 28° N. lat.

          3. In § 665.204, add new paragraph (k) to read as follows:

            § 665.204
            Prohibitions.
            (k) Fish for or possess any Hawaii bottomfish or seamount groundfish MUS in the Hancock Seamounts Ecosystem Management Area, in violation of § 665.209.

          4. Revise § 665.209 to read as follows:

            § 665.209
            Fishing moratorium at Hancock Seamounts.
            Fishing for, and possession of, Hawaii bottomfish and seamount groundfish MUS in the Hancock Seamounts Ecosystem Management Area is prohibited until the Regional Administrator determines that the armorhead stock is rebuilt.

      [FR Doc. 2010-21537 Filed 8-27-10; 8:45 am]
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        DEPARTMENT OF TRANSPORTATION
        Federal Motor Carrier Safety Administration
        49 CFR Part 389
        [Docket No. FMCSA-2009-0354]
        RIN 2126-AB23
        Direct Final Rulemaking Procedures

          AGENCY:
          Federal Motor Carrier Safety Administration (FMCSA), DOT.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:

          FMCSA proposes to amend its regulations by establishing direct final rulemaking procedures for use on noncontroversial rules. Under these procedures, FMCSA would make regulatory changes that would become effective a specified number of days after the date of publication in the Federal Register, unless FMCSA receives written adverse comment(s) or written notice of intent to submit adverse comment(s), received by the date specified in the direct final rule. These new procedures would expedite the promulgation of routine or noncontroversial rules by reducing the time and resources necessary to develop, review, clear, and publish separate proposed and final rules. FMCSA would not use the direct final rule procedures for complex or controversial issues.

          DATES:
          You must submit comments on or before April 16, 2010.

          ADDRESSES:
          You may submit comments identified by the Federal Docket Management System Number in the heading of this document by any of the following methods. Do not submit the same comments by more than one method. However, to allow effective public participation before the comment period deadline, the Agency encourages use of the Web site that is listed first. It will provide the most efficient and timely method of receiving and processing your comments.
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Fax: 1-202-493-2251.
          • Mail: Docket Management Facility, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
          • Hand Delivery: Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

            Instructions: All submissions must include the Agency name and docket number for this regulatory action. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Refer to the Privacy Act heading on http://www.regulations.gov for further information.

            Public Participation: The regulations.gov system is generally available 24 hours each day, 365 days each year. You can find electronic submission and retrieval help and guidelines under the “help” section of the Web site. For notification that FMCSA received the comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments on line. Copies or abstracts of all documents referenced in this notice are in the docket: FMCSA-2009-0354. For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FMCSA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material.

          FOR FURTHER INFORMATION CONTACT:
          Please contact Mr. Bivan R. Patnaik, Chief, Regulatory Development Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, (202) 366-8092.

        SUPPLEMENTARY INFORMATION:
        Background
        The Administrative Procedure Act (APA) (5 U.S.C. 553) specifically provides that notice and comment rulemaking procedures are not required where the Agency determines that there is good cause to dispense with them. Generally, good cause exists where the procedures are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). FMCSA proposes to use direct final rulemaking to streamline the rulemaking process where the rule is noncontroversial and the Agency does not expect adverse comment.
        Direct final rulemaking would be more efficient in using FMCSA resources by reducing the time and resources necessary to develop, review, clear, and publish separate proposed and final rules for rules the Agency expects to be noncontroversial and unlikely to result in adverse public comment. A number of Federal agencies use this process, including various Department of Transportation operating administrations. For example, on January 30, 2004, the Office of the Secretary of Transportation (OST) published a final rule adopting direct final rule procedures (69 FR 4455) and the Federal Railroad Administration published a final rule adopting direct final rule procedures on March 7, 2007 (72 FR 10086).
        Direct Final Rule Procedures
        FMCSA would determine whether a particular rulemaking is noncontroversial and unlikely to result in adverse comments based on its experience with similar rules that it previously proposed and published without receiving adverse comments. Adverse comments are those comments that are critical of the rule, suggest that the rule should not be adopted, or suggest a change to the rule. Comments outside the scope of the rule and comments suggesting that the rule's policy or requirements should or should not be extended to other Agency programs outside the scope of the rule would not be considered adverse.

        After making the determination that a rule would be appropriate for direct final rulemaking, FMCSA would publish the rule as a direct final rule in the Federal Register. The document would state in the preamble that FMCSA does not anticipate adverse comments and that unless it receives written adverse comments or written notice of intent to submit adverse comments, the rule would become effective a specified number of days after the date it is published in the Federal Register. If FMCSA receives adverse comments, or receives notice of intent to file adverse comments by the date specified in the direct final rule, it would publish a rule in the Federal Register withdrawing the direct final rule before it goes into effect. FMCSA may then publish a notice of proposed rulemaking with a new comment period if the Agency decides to go forward with the rulemaking.

        If no adverse comments or written notice of intent to submit adverse comments are received by the date specified in the direct final rule, FMCSA would publish a rule in the Federal Register stating that it did not receive any adverse comments and confirming the effective date of the rule.
        Direct final rulemaking may be appropriate for noncontroversial rules that (1) Make non-substantive clarifications or corrections to existing rules; (2) incorporate by reference the latest or otherwise updated versions of technical or industry standards; (3) affect internal procedures of FMCSA such as filing requirements and rules governing inspection and copying of documents; (4) update existing forms; (5) make minor changes to rules regarding statistics and reporting requirements, such as a change in reporting period (for example, from quarterly to annually) or eliminating a type of data collection no longer necessary. FMCSA may also use direct final rulemaking for a particular rule if similar rules had been previously proposed and published without adverse comment. Even if a rulemaking falls into one of the above categories, if adverse comments are anticipated, FMCSA would not use the direct final rule process. The additional time and resources expended to withdraw the rule and republish it for comment will serve as an incentive for the Agency to make careful determinations as to whether this procedure is appropriate.
        Regulatory Analyses and Notices

        FMCSA has determined that this action is not a significant regulatory action under Executive Order 12866 or under the Department's Regulatory Policies and Procedures. There are no costs associated with the proposed rule. There would be some cost savings in Federal Register publication costs and efficiencies for the public and FMCSA personnel in eliminating duplicative reviews. I certify that this rule would not have a significant impact on a substantial number of small entities. Finally, FMCSA believes there are no Federalism implications.
        Paperwork Reduction Act
        This proposed rulemaking contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
        Unfunded Mandates Reform Act
        FMCSA has determined that the requirements of Title II of the Unfunded Mandates Act of 1995, do not apply to this proposed rulemaking.
        Environment

        FMCSA considered the environmental impacts of this proposed rulemaking under the National Environmental Policy Act of 1969, and determined it is categorically excluded from further environmental analysis under FMCSA Order 5610.1 paragraph 6.x of Appendix 2. FMCSA Order 5610.1 was published on March 1, 2004 (69 FR 9680). A Categorical Exclusion Determination is available for inspection or copying in the regulations.gov website listed under ADDRESSES.

          List of Subjects in 49 CFR Part 389
          Rulemaking procedures.

        For the reasons set forth in the preamble, FMCSA proposes to amend 49 CFR part 389 as follows:

          PART 389—[AMENDED]
          1. The authority citation for 49 CFR part 389 is amended to read as follows:

            Authority:
             49 U.S.C. 113, 501 et seq., subchapters I and III of chapter 311, chapter 313, and 31502; 42 U.S.C 4917; and 49 CFR 1.73.

          2. Section 389.11 is revised to read as follows:

            § 389.11
            General.
            Except as provided in § 389.39, Direct final rulemaking procedures, unless the Administrator, for good cause, finds a rule is impractical, unnecessary, or contrary to the public interest, and incorporates such a finding and a brief statement for the reason for it in the rule, a notice of proposed rulemaking must be issued, and interested persons are invited to participate in the rulemaking proceedings involving rules under an Act.
            3. Add new § 389.39 to read as follows:

            § 389.39
            Direct final rulemaking procedures

            A direct final rule makes regulatory changes and states that those changes will take effect on a specified date unless FMCSA receives an adverse comment or notice of intent to file an adverse comment by the s date specified in the direct final rule published in the Federal Register.
            (a) Types of actions appropriate for direct final rulemaking. Rules that the Administrator determines to be non-controversial and unlikely to result in adverse public comments may be published in the final rule section of the Federal Register as direct final rules. These include non-controversial rules that:
            (1) Make non-substantive clarifications or corrections to existing rules;
            (2) Incorporate by reference the latest or otherwise updated versions of technical or industry standards;
            (3) Affect internal FMCSA procedures such as filing requirements and rules governing inspection and copying of documents;
            (4) Update existing forms;
            (5) Make minor changes to rules regarding statistics and reporting requirements, such as a change in reporting period (for example, from quarterly to annually) or eliminating a type of data collection no longer necessary;
            (b) Adverse Comment. An adverse comment is a comment that FMCSA judges to be critical of the rule, to suggest that the rule should not be adopted, or to suggest that a change should be made to the rule. Under the direct final rule process, FMCSA does not consider the following types of comments to be adverse:
            (1) Comments recommending another rule change, in addition to the change in the direct final rule at issue, unless the commenter states that the direct final rule would be ineffective without the change;
            (2) Comments outside the scope of the rule and comments suggesting that the rule's policy or requirements should or should not be extended to other Agency programs outside the scope of the rule;
            (3) Comments in support of the rule; or
            (4) Comments requesting clarification.
            (c) Confirmation of effective date. FMCSA will publish a confirmation rule document in the Federal Register, if it has not received an adverse comment or notice of intent to file an adverse comment by the date specified in the direct final rule. The confirmation rule document tells the public the effective date of the rule.

            (d) Withdrawal of a direct final rule.

            (1) If FMCSA receives an adverse comment or a notice of intent to file an adverse comment within the comment period, it will publish a rule document in the Federal Register, before the effective date of the direct final rule, advising the public and withdrawing the direct final rule.
            (2) If FMCSA withdraws a direct final rule because of an adverse comment, the Agency may issue a notice of proposed rulemaking if it decides to pursue the rulemaking.

            Issued on: March 10, 2010.
            Anne S. Ferro,
            Administrator.

      [FR Doc. 2010-5737 Filed 3-16-10; 8:45 am]
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