[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]
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