[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Rules and Regulations]
[Pages 73434-73435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33810]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 991222346-9346-01; I.D. 031997B]
RIN 0648-AN40


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Atlantic Large Whale Take Reduction Plan Regulations; 
Suspension of Effectiveness of Gear Marking Requirements for Northeast 
U.S. Fisheries

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

ACTION: Final rule; suspension.

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SUMMARY: On February 16, 1999, NMFS issued a final rule implementing 
the Atlantic Large Whale Take Reduction Plan (ALWTRP). This suspends 
the gear marking requirements for northeast U.S. fisheries contained in 
that rule. The other provisions of that rule, including the gear 
marking requirements for southeast U.S. (SEUS) fisheries under the 
ALWTRP, remain in effect. The current gear marking requirements for 
northeast U.S. fisheries under the rule are unlikely to provide useful 
information. The purpose of this suspension is to spare fishermen from 
unnecessary expenses while a better gear marking system is devised and 
implemented.

DATES: Effective December 30, 1999 50 CFR 229.32 (b), (c)(3)(ii), 
(c)(4)(ii), (c)(5)(ii), (d)(2)(ii), (d)(3)(ii), (d)(4)(ii), and 
(d)(5)(ii) are suspended until November 1, 2000.

FOR FURTHER INFORMATION CONTACT: Douglas Beach, NMFS, Northeast Region, 
978-281-9254; or Gregory Silber, NMFS, Office of Protected Resources, 
301-713-2322.
SUPPLEMENTARY INFORMATION:

Background

    On February 16, 1999, NMFS published a final rule (64 FR 7529) 
implementing the ALWTRP. Among other measures, the final rule required 
gear marking in all fisheries under the ALWTRP by April 1, 1999.
    The Atlantic Large Whale Take Reduction Team (ALWTRT) met on 
February 8-10, 1999, discussed the gear marking scheme in detail, and 
recommended by consensus (with the NMFS members abstaining) that NMFS 
suspend the implementation of the gear marking requirement until 
November 1, 1999, or until a better system is designed. In order to 
provide an appropriate gear marking scheme that could be implemented by 
NMFS by November 1, 1999, the ALWTRT asked that the Gear Advisory Group 
(GAG) be reconvened quickly to design a better system for approval by 
the ALWTRT. The criteria established by the ALWTRT for the better gear 
marking system were that the system should: (1) identify the buoy lines 
by individual fishermen; (2) apply to all waters affected by the 
ALWTRP; (3) be easily implemented by the affected fisheries; (4) allow 
identification of gear type from a photograph so that it can be 
identified without being removed from a whale; and (5) allow 
identification of where the gear had been set.
    In March 1999, an ad hoc group of ALWTRT members representing the 
scientific, conservation and state and Federal fishery managers of the 
northeastern area met to discuss gear marking. The group recognized 
many of the points discussed here and agreed that, under the gear 
marking requirements then in effect, it was highly probable that gear 
recovered from animals could be identified to the individual fisherman, 
thus allowing details on the gear (i.e., gear type, and date and 
location of set) to be determined in most cases. NMFS then changed the 
effective date of the gear marking measures contained in the final rule 
to November 1, 1999 (64 FR 17292, April 9, 1999), and tasked the GAG 
and the ALWTRT with reviewing the final rule=s gear scheme. NMFS 
committed to revise the final rule=s gear marking scheme if the GAG and 
ALWTRT reached consensus on an appropriate gear marking scheme.
    Three GAG meetings were held in April at Sandwich, Massachusetts; 
Portsmouth, New Hampshire; and Ellsworth, Maine to gather the 
fishermens= perspectives from each region. A summary of the three GAG 
meetings is available upon request from

[[Page 73435]]

the contacts noted at the beginning of this document. The basic 
conclusions from the GAG members were:
    (1) A single gear identification number is desirable. State and
    Federal regulations require gear tagging or marking systems for 
both lobster and gillnet gear. A marking system that incorporates the 
existing marking requirements should be used.
    (2) An individual fisherman=s identification would provide more 
information than the current ALWTRP color-coding system, which only 
requires marking in certain areas. Fishermen set gear across boundary 
areas and, under the current ALWTRP system, would have to re-rig their 
gear when moving into or out of a required area. With individual 
markings, the fishermen can provide specific information on where the 
gear had been set at any given time.
    (3) The ALWTRP color-coded system does not provide the detailed 
information that a universal individual marking system throughout the 
range would provide. Better ways of marking buoy lines and high flyers 
with individual numbers are being tested, and the results of these 
tests will be available by Spring 2000.
    (4) The ALWTRP marking system was based on the need to identify 
gear on whales that is observed from a distance that may never be 
recovered. Recent entanglement events and subsequent detailed 
investigations have resulted in up to 70 percent of the gear involved 
being identified, including the probable time and location the gear was 
set, for those whales that have been disentangled and the gear has been 
recovered. The current ALWTRP gear marking system would not have 
improved identification of gear in any of the recent Northeast 
entanglement events. Entangled animals are receiving close scrutiny, 
and photos or video images are routinely collected, allowing a more 
definitive analysis of gear type before a disentanglement is attempted. 
Thus, the current ALWTRP gear marking system is not needed to identify 
gear that is not removed from a whale.
    In summary, the consensus of the GAG and the ALWTRT is that: (1) 
The gear marking measures for northeastern U.S. fisheries under the 
ALWTRP as contained in the February 16, 1999, final rule are unlikely 
to provide useful information; (2) the value of making a gear marking 
system being visible from a distance is questionable; (3) existing gear 
marking and buoy color-coding requirements applicable to the various 
northeastern U.S. fisheries allow gear type and ownership to be 
identified in most cases; (4) gillnet fisheries operating in the SEUS 
do not have the same level of existing gear marking requirements; (5) 
after 2 years of investigating gear entangled on whales, NMFS has found 
that it is possible to determine gear ownership in the majority of the 
entanglements and thus find out the details about the date and location 
of the set; and (6) better ways for buoy lines and high flyers to be 
marked with individual identification numbers are being tested and the 
results should be available soon. Therefore, in order to spare 
fishermen from unnecessary expense, NMFS is suspending the 
effectiveness of the gear marking requirements for northeast U.S. 
fisheries in the February 16, 1999, final rule implementing the ALWTRP. 
Gear marking requirements for SEUS fisheries remain in effect. The 
ALWTRT will meet in early Spring, 2000, to review the GAG report and 
the results of the testing of new gear marking methods, and make 
further recommendations to NMFS on how or whether to modify the ALWTRP 
gear marking system. By late Spring, 2000, NMFS will propose 
modifications to the ALWTRP gear marking system and implementing 
regulations with the aim of having an effective system implemented by 
November, 2000.

Classification

    This rule has been determined to be not significant for purposes of 
E.O. 12866.
    NMFS prepared an Environmental Assessment (EA) on the interim final 
rule preceding the February 16, 1999, final rule to implement the 
ALWTRP, and its findings applied to the February 16, 1999 final rule, 
as well. This action suspends the effectiveness of a portion of that 
final rule. Although this action falls within the scope of alternatives 
of that EA and the environmental consequences described in that action, 
NMFS has prepared a supplemental EA for this action with a finding of 
no significant impact.
    A biological opinion (BO) on the ALWTRP was completed on July 15, 
1997. That BO concluded that implementation of the ALWTRP and continued 
operation of fisheries conducted under the American Lobster and 
Northeast Multispecies fishery management plans (FMPs), and 
southeastern shark gillnet component of the Shark FMP, may adversely 
affect, but are not likely to jeopardize the continued existence of any 
listed species of large whales or sea turtles under NMFS jurisdiction. 
The February 16, 1999, final rule was determined not to change the 
basis for that BO. This action also does not change the basis for that 
BO.
    The suspension of the effective date of the ALWTRP gear marking 
requirement for Northeast U.S. fisheries made by this rule will have no 
adverse impacts on marine mammals. In addition, this rule does not 
change the determination that the ALWTRP will be implemented in a 
manner that is consistent to the maximum extent practicable with the 
approved coastal management programs of the Atlantic states.
    As noted above, the ALWTRP gear marking regime for the Northeast is 
unlikely to provide useful information. Fishermen should be spared the 
expense of having to comply with it prior to implementation of a better 
system. Accordingly, the Assistant Administrator for Fisheries, for 
good cause, finds that delaying this rule to allow for prior notice and 
opportunity for public comment would be contrary to the public 
interest. Because this suspension of effectiveness relieves a 
restriction, under 5 U.S.C. 553(d)(1) it is not subject to a 30-day 
delay in the effective date.
    Because prior notice and an opportunity for public comment are not 
required to be provided for this rule by 5 U.S.C. 553 or by any other 
law , the analytical requirements of the Regulatory Flexibility Act do 
not apply.
    This rule suspends the effectiveness of a collection-of-information 
requirement subject to the Paperwork Reduction Act previously approved 
by OMB (OMB Control Number: 0648-0364).
    Dated: December 22, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-33810 Filed 12-29-99; 8:45 am]
BILLING CODE 3510-22-F