[Federal Register Volume 66, Number 8 (Thursday, January 11, 2001)]
[Rules and Regulations]
[Pages 2336-2338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-913]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001011283-0371-02; I.D. 082200C]
RIN 0648-AO30


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Harbor Porpoise Take Reduction Plan Regulations; Change to 
the List of Exempted Waters

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

ACTION: Final rule.

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SUMMARY: NMFS amends the Harbor Porpoise Take Reduction Plan (HPTRP) to 
redefine Delaware Bay in the list of exempted waters to include waters 
landward of the 72 COLREGS line (International Regulations for 
Preventing Collisions at Sea, 1972). Members of the Mid-Atlantic Harbor 
Porpoise Take Reduction Team (MATRT) recommended by consensus that NMFS 
redefine the list of exempted waters because harbor porpoise stranding 
and observer data did not justify subjecting fishers in Delaware Bay to 
the HPTRP gear restrictions. The intent of this final rule is to exempt 
fishers operating in Delaware Bay from the HPTRP regulations as it is 
redefined under this rule.

DATES: Effective January 11, 2001.

FOR FURTHER INFORMATION CONTACT: Gregg Lamontagne, NMFS, Northeast

[[Page 2337]]

Region, 978-281-9291; Kim Thounhurst, NMFS Northeast Region, 978-281-
9138; Diane Borggaard, NMFS, Southeast Region, 727-570-5312; or Emily 
Hanson, NMFS Office of Protected Resources, 301-713-2322, ext. 101.

SUPPLEMENTARY INFORMATION: Section 118 of the Marine Mammal Protection 
Act (MMPA) authorizes NMFS to issue regulations to implement a marine 
mammal take reduction plan or amendments to a marine mammal take 
reduction plan that, among other things, may restrict fishing by time 
or area. On December 2, 1998, NMFS published a final rule (63 FR 66464) 
implementing the HPTRP. Among other measures, the final rule identified 
those waters that are exempt from the HPTRP (50 CFR 229.34).
    The MATRT met on January 13 and 14, 2000, in Alexandria, VA. The 
MATRT recommended by consensus that the line defining the exempted 
waters of Delaware Bay be moved seaward from 39 deg. 16.70'N 75 deg. 
14.60'W TO 39 deg. 11.25'N 75 deg. 23.90'W (i.e., southern point of 
Nantuxent Cove, NJ to the southern end of Kelly Island, Port Mahon, DE) 
and be redefined as a line from the Cape May Canal to the Lewes Ferry 
Terminal. The MATRT concluded that there was no compelling reason for 
maintaining the existing position of the line in Delaware Bay, compared 
to other large bays in the Mid-Atlantic region (e.g., Chesapeake Bay, 
Long Island Sound), which typically establish the exempted waters as 
landward of the mouth of an inlet or the 72 COLREGS line. The MATRT 
believed that the existing line imposed unnecessary requirements on the 
Delaware Bay fishing community because harbor porpoise stranding data 
and observer data did not justify imposing HPTRP gear restrictions on 
fishers in Delaware Bay.
    NMFS published a proposed rule on October 27, 2000 (65 FR 64415), 
to redefine exempted waters for Delaware Bay to include all marine and 
tidal waters landward of the 72 COLREGS demarcation line, as depicted 
or noted on nautical charts published by NOAA (Coast Charts 1:80,000 
scale), and as described in 33 CFR part 80. Using the COLREGS line is a 
slight deviation from the MATRT's consensus recommendation. The 72 
COLREGS line was selected instead of the line recommended by the MATRT 
because the 72 COLREGS line is a well known and widely published line 
of demarcation. The actual difference between the COLREGS line and the 
MATRT recommended line is a seaward shift of approximately 1 nautical 
mile.
    In the proposed rule, NMFS requested comments on the MATRT's 
consensus recommendation to change the definition of small mesh gillnet 
to mean a gillnet constructed with a mesh size of greater than 5.5 
inches (13.97 cm) but less than 7 inches (17.78 cm). As currently 
defined in 50 CFR 229.2, small mesh gillnet means a gillnet constructed 
with a mesh size of greater than 5 inches (12.7 cm) to less than 7 
inches (17.78 cm). NMFS did not propose implementing the MATRT's 
recommendation to change the definition of small mesh gillnet because 
of sea sampling observer data from the Mid-Atlantic in 1999 and 2000, 
which reported four takes in 4.9-5.0 inch mesh size gillnet (reported 
by a vessel captain) with shad as the primary species sought. NMFS was 
concerned about implementing the MATRT's recommendation, which would 
relax the requirements of the HPTRP, while takes continued to occur in 
similar mesh sizes.

Comments and Responses to the Notice of Proposed Change to the 
HPTRP

    Five comment letters were received in response to the October 27, 
2000, proposed rule. Comment letters were received from state agencies 
and commercial fishing organizations. The comments are summarized here 
followed by NMFS responses thereto.

Comments on the Proposed Change to the List of Exempted Waters

    All five commenters supported the proposed change to the line 
delineating exempted waters for Delaware Bay.

Response

    For the reasons discussed in the preamble to the proposed rule, 
NMFS' is publishing this final rule to implement the change proposed on 
October 27, 2000 (65 FR 64415).

Comments on the MATRT's Recommendation to Change the Definition of 
Small Mesh Gillnet

    All five commenters supported the MATRT's recommendation to 
redefine small mesh gillnet, primarily because of the impact the 
existing regulations have on the shad fishery. According to the 
commenters, fishers targeting shad have two options under the existing 
regulations, both of which could have negative impacts on the shad 
population, the fishers, and harbor porpoise. One, fishers may opt to 
use mesh sizes of 5 inches (12.7 cm) and less to avoid the requirements 
of the HPTRP. The use of smaller mesh leads to increased catches of 
smaller shad, both bucks and young females, which have a low market 
value. Additionally, the young females caught may not have spawned. 
This would cause both a negative economic impact on the fishers and a 
negative biological impact on shad populations. Also, fishers may opt 
to fish with mesh sizes of greater than 5 inches (12.7 cm) and use the 
twine size required by the HPTRP, which is heavier than twine size 
traditionally used in the shad fishery. The heavy twine size does not 
effectively catch shad, causing a negative economic impact on the 
fishers. Both options could result in increased fishing effort as more 
net is set to mitigate for lost catch or catch with a lower market 
value, which could increase the likelihood of interactions with marine 
mammals.
    Commenters also noted that the shad fishery has exhibited low 
levels of harbor porpoise interaction and that the Atlantic States 
Marine Fisheries Commission's (ASMFC) Interstate Fishery Management 
Plan for shad encourages the use of mesh with a size larger than 5 
inches (12.7 cm) because it increases the harvest of larger, more 
valuable female shad that have already spawned. Commenters stated that 
the ASMFC will be phasing out the ocean intercept shad fishery by 2005, 
however it is still economically important for fishers to be able to 
fish for shad until the fishery is closed.
    One commenter noted that the MATRT's proposal would exempt most of 
Delaware's ocean gill netting operations from the HPTRP. Another 
commenter noted that the MATRT's recommendation would decrease the 
bycatch mortality of striped bass during their spring migration along 
the east coast. If the current definition of small mesh gillnet 
remains, fishers in New Jersey who want to use mesh with a size of 5.5 
inch (13.97 cm) would be required to use heavier twine size than is 
traditionally used, which would increase striped bass mortality.

Response

    NMFS is not implementing the MATRT's mesh size proposal at this 
time, due to takes of harbor porpoise in mesh sizes of 4.9-5.0 inches 
in 2000. The issue of redefining small mesh gillnet and reducing takes 
in gillnet gear with mesh sizes of 5 inches (12.7 cm) and less was 
addressed by the MATRT at its annual meeting November 28-30, 2000. The 
MATRT was not able to develop a consensus recommendation for NMFS to 
redefine small mesh gillnet while also addressing the takes observed in 
1999 and 2000.
    NMFS plans to continue observing the mid-Atlantic coastal gillnet 
fisheries,

[[Page 2338]]

including vessels using small mesh gillnet, and expanding observer 
coverage to vessels using gillnet mesh sizes of 5.0 inches (12.7 cm) or 
smaller to both monitor existing levels of harbor porpoise take and to 
learn what gear characteristics or operational characteristics take 
harbor porpoise. If the MATRT or fishers identify gear characteristics 
or operational characteristics that allow NMFS to relieve restrictions 
while still reducing the take of harbor porpoise incidental to 
commercial fishing operations, NMFS will consider implementing 
appropriate changes to the HPTRP. Additionally, NMFS will consult with 
ASMFC to determine if other options exist that NMFS has not yet 
considered.

Classification

    NMFS prepared an Environmental Assessment (EA) of the final rule 
(63 FR 66464, Dec. 2, 1998) to implement the HPTRP. This final rule 
amends the HPTRP. NMFS prepared an EA for this action and determined 
that amending the HPTRP as described in this final rule will not have a 
significant impact on the quality of the human environment.
    The Chief Counsel for Regulation for the Department of Commerce 
certified to the Chief Counsel for Advocacy for the Small Business 
Administration when this rule was proposed that it would not have a 
significant adverse economic impact on a substantial number of small 
entities. While comments were received regarding the economic impact on 
small entities of a MATRT recommendation which NMFS did not propose to 
implement in the proposal, no comments regarding the economic impact of 
NMFS' proposal were received. Accordingly, the basis for the 
certification has not changed and NMFS has not prepared a Regulatory 
Flexibility Analysis.
    This final rule does not contain any collection of information 
requirement subject to the Paperwork Reduction Act.
    A section 7 Endangered Species Act (ESA) consultation on the HPTRP 
was conducted on November 12, 1998. That consultation concluded that 
measures specific to the HPTRP are not likely to adversely affect any 
ESA listed species under NMFS jurisdiction. Due to environmental 
conditions, turtles do not occur in Delaware Bay during the same time 
that the HPTRP restrictions are in place. Therefore, lifting the 
restrictions in Delaware Bay is not likely to impact turtles, and 
therefore no further section 7 consultation is required. This final 
rule falls within the scope of the section 7 consultation on the HPTRP 
and is not likely to adversely affect endangered or threatened species.
    The changes in the HPTRP made by this final rule are not expected 
to have adverse impacts on marine mammals.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    This final rule does not change the determination that the HPTRP 
will be implemented in a manner that is consistent to the maximum 
extent practicable with the approved coastal management programs of the 
Atlantic states.
    This final rule is promulgated in compliance with all procedural 
requirements established by the Administrative Procedure Act.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: January 4, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 229 is amended 
as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.

    2. In Sec. 229.34, paragraph (a)(2) is revised to read as follows:


Sec. 229.34  Harbor Porpoise Take Reduction Plan - Mid-Atlantic.

    (a) * * *
    (2) Exempted waters. All waters landward of the first bridge over 
any embayment, harbor, or inlet will be exempted. The regulations in 
this section do not apply to waters landward of the following lines:

New York

    40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 
45.30' W (Moriches Bay Inlet)
    40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 
18.56' W (Fire Island Inlet)
    40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 
35.22' W (Jones Inlet)

New Jersey/Delaware

    39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg. 
06.20' W (Barnegat Inlet)
    39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg. 
19.75' W (Beach Haven to Brigantine Inlet)
    38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg. 
51.90' W (Cape May Inlet)
    All marine and tidal waters landward of the 72 COLREGS demarcation 
line (International Regulations for Preventing Collisions at Sea, 
1972), as depicted or noted on nautical charts published by NOAA (Coast 
Charts 1:80,000 scale), and as described in 33 CFR part 80. (Delaware 
Bay)

Maryland/Virginia

    38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 
05.25' W (Ocean City Inlet)
    37 deg. 52.' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' 
W (Chincoteague to Ship Shoal Inlet)
    37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 
49.60' W (Little Inlet)
    37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.' 
W (Smith Island Inlet)

North Carolina

    All marine and tidal waters landward of the 72 COLREGS demarcation 
line (International Regulations for Preventing Collisions at Sea, 
1972), as depicted or noted on nautical charts published by NOAA (Coast 
Charts 1:80,000 scale), and as described in 33 CFR part 80.
* * * * *
[FR Doc. 01-913 Filed 1-10-01; 8:45 am]
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