[Federal Register Volume 67, Number 59 (Wednesday, March 27, 2002)]
[Proposed Rules]
[Pages 14690-14694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7129]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001128334-2048-07; I.D. 021202A]
RIN 0648-AN88


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Atlantic Large Whale Take Reduction Plan Regulations

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to amend the regulations that implement the 
Atlantic Large Whale Take Reduction Plan (ALWTRP), specifically with 
regard to the straight set of gillnets in the Southeast U.S. Restricted 
Area in waters off the coasts of Georgia and Florida. The intent of 
this proposed rule is to prohibit straight sets of gillnets at night 
from November 15 through March 31, annually, to reduce the risk of 
entanglement of large whales, including the western North Atlantic 
right whale. NMFS is also announcing the availability of an 
Environmental Assessment (EA) and a Regulatory Impact Review (RIR).

DATES: Comments on the proposed prohibition of the straight set of 
gillnets must be postmarked or transmitted via facsimile by 5 p.m. 
Eastern Standard Time, on May 28, 2002. Comments transmitted via e-mail 
will not be accepted.

ADDRESSES: Send comments on this proposed rule to the Chief, Protected 
Resources Division, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702-2432.
    Atlantic Large Whale Take Reduction Team (ALWTRT) meeting 
summaries, progress reports on implementation of the ALWTRP, and a 
table of the changes to the ALWTRP may be obtained by writing to Diane 
Borggaard, NMFS/Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930 
or Katie Moore, NMFS/Southeast Region, 9721 Executive Center Dr., St. 
Petersburg, FL 33702-2432.

FOR FURTHER INFORMATION CONTACT: Katie Moore, NMFS, Southeast Region, 
727-570-5312; Diane Borggaard, NMFS, Northeast Region, 978-281-9145; or 
Patricia Lawson, NMFS, Office of Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Copies of the EA and RIR can be obtained from the ALWTRP Web site: 
http://www.nero.nmfs.gov/whaletrp/.

Background

    The ALWTRP was developed pursuant to the Marine Mammal Protection 
Act (MMPA) to reduce the level of serious injury and mortality of 
whales by Atlantic lobster trap and gillnet fisheries. The background 
for the take reduction planning process and development of the ALWTRP 
is set out in the preamble to the proposed (62 FR 16519, April 7, 
1997), interim final (62 FR 39157, July 22, 1997), final (64 FR 7529, 
February 16, 1999), interim final (65 FR 80368, December 21, 2000), 
interim final (67 FR 1142, January 9, 2002), final (67 FR 1133, January 
9, 2002), and final (67 FR 1300, January 10, 2002) rules implementing 
the ALWTRP. Copies of these documents and supporting EAs are available 
from the contacts noted in the ADDRESSES section of this proposed rule.
    NMFS issued four biological opinions (BOs) on the multispecies, 
spiny dogfish, monkfish, and lobster fisheries on June 14, 2001, in 
accordance with section 7 of the Endangered Species Act (ESA). The BOs 
concluded that all four of the fisheries jeopardized the continued 
existence of the western North Atlantic right whale. The reasonable and 
prudent alternative (RPA) in the June 14, 2001, BOs included additional 
gear modifications for the northeast lobster trap fisheries and new 
gear modifications for the mid-Atlantic and southeast gillnet fisheries 
that are necessary to avoid jeopardizing the continued existence of 
western North Atlantic right whales. Southeast gillnet gear 
restrictions identified in this proposed rule address the RPA in an 
effort to reduce potential entanglements of western North Atlantic 
right whales.

Take Reduction Planning Activities in 2000 and 2001

    Pursuant to section 118 (f)(7)(E) and (F) of the MMPA, NMFS has 
reconvened the ALWTRT periodically to monitor progress of the ALWTRP 
and to make recommendations for improvements. During the February 2000 
meeting, the ALWTRT split into sub-groups covering the northeast, mid-
Atlantic, and southeast areas. The recommendations of the northeast 
sub-group were addressed by the December 2000 interim final rule. The 
mid-Atlantic and southeast sub-groups met on August 25, 2000, and July 
24, 2000, respectively, and provided meeting summaries with 
recommendations to the entire ALWTRT for review.
    The ALWTRT met as a whole on June 27 and 28, 2001, to review the 
elements of the RPA required by the four BOs and recommend measures 
that would not only satisfy the requirements of the ESA and the four 
BOs, but would also satisfy the requirements of the MMPA. The MMPA 
provides the goals of reducing takes in commercial fishing operations 
to below the potential biological removal (PBR) level within 6 months 
of the ALWTRP's implementation and the achievement of a zero mortality 
rate within 5 years of ALWTRP implementation. For western North 
Atlantic right whales, these two goals are essentially the same since 
the PBR level is defined as zero. Consequently, the ALWTRT concurred 
that additional entanglement risk reduction is needed to comply with 
the MMPA.
    NMFS published a proposed rule on October 1, 2001 (66 FR 49896), 
and final rule on January 10, 2002 (67 FR 1300), to amend the ALWTRP 
per the RPA and the Atlantic Large Whale Take Reduction Team's 
recommendations. The rule included provisions such as requiring weak 
links, temporal anchoring, and line diameter restrictions. The proposed 
rule also included provisions addressing the straight set of gillnets 
in the Southeast U.S. Restricted Area at night. Though NMFS prepared a 
thorough analysis of the straight set provision to include in the 
proposed rule's EA, NMFS accidentally left out the analysis in the EA. 
In order to ensure that the public had sufficient information to review 
and analyze the straight set provision in the proposed rule, NMFS 
removed the

[[Page 14691]]

straight set provision from the January 10, 2002, final rule. NMFS is 
issuing this proposed rule to provide the public adequate time to 
review and comment on the measure and the EA. The EA and RIR regarding 
the straight set provision are now available for public review, and 
NMFS is seeking public comments.

Changes Proposed for the ALWTRP for Gillnet Gear

    Regulatory measures discussed by the southeast sub-group included 
applying northeast gear marking requirements to the southeast area and 
a restriction on gear deployment methods for non-shark gillnets during 
the western North Atlantic right whale calving season. The October 1, 
2001, proposed rule discussed NMFS' decision to leave the existing gear 
marking requirement in place for the Southeast U.S. Restricted Area. 
Additional gillnet restrictions discussed but not adopted by the sub-
group included time-area management, net modifications (e.g., weak 
links), and seasonal restrictions. In the development of the proposed 
rule, NMFS excluded these preliminary alternatives and several others 
from detailed analysis, because the alternatives were not considered to 
be within the scope of the action, technically feasible, or recommended 
by the ALWTRT.
    The gillnet restriction recommended by the southeast sub-group was 
the prohibition of straight sets of gillnets at night from November 15 
through March 31, annually, in the Southeast U.S. Restricted Area, 
(i.e., unless the exemption under 50 CFR 229.32 (f)(3)(iii), which 
relates to shark gillnets, applies). The Southeast U.S. Restricted Area 
consists of those waters from 27 deg. 51' N lat. (near Sebastian Inlet, 
FL) to 32 deg. 00' N lat. (near Savannah, Georgia) extending from the 
shore outward to 80 deg. W long. Night means any time between one-half 
hour before sunset and one-half hour after sunrise, as per the ALWTRP 
(50 CFR 229.2).
    A straight set is the deployment of a gillnet in a straight line, 
as opposed to the deployment of a gillnet in a circular manner, for 
example, around a school of fish. Both deployment types are currently 
fished in the proposed management area, the U.S. Restricted Area, which 
includes a nursery area for mothers and calves. Right whales generally 
occur in this area from November 15 through March 31. A prohibition 
during that time-area of the gear types with which the right whale is 
known to have become entangled would afford additional protection to 
the concentrations of western North Atlantic right whales. NMFS 
believes that straight set gillnets deployed during daytime are of very 
minimal threat to whales. Such gear is retrieved within about one-half 
hour of every set, and thus the fisher would be on-site in the possible 
event of an entanglement. Straight sets at night pose a higher level of 
risk of entanglement to whales than strike sets or straight sets during 
the day, because fishers are not as actively involved with straight set 
gear (in comparison to the strike set method used in southeast Atlantic 
waters), and whales are much more difficult to spot at night due to 
darkness. Through the proposed rule, NMFS aims to reduce the potential 
for the entanglement of western North Atlantic right whales in straight 
set gillnet gear. Due to the gear restrictions, the proposed rule will 
reduce the likelihood of effort influx into the fishery in the future, 
thereby further reducing the potential likelihood of entanglements.
    Figure 1 shows the boundaries for the Southeast U.S. Restricted 
Area. Currently the shark gillnet fishery is regulated using these 
boundaries (50 CFR 229.32 (f)(1)).

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[GRAPHIC] [TIFF OMITTED] TP27MR02.001

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Classification

    This proposed rule does not include a collection-of-information 
requirement subject to the Paperwork Reduction Act.
    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 basis for this certification follows:
    The MMPA provides the statutory basis for the rule. The proposed 
rule would prohibit the use of straight set gillnets in the Southeast 
U.S. Restricted Area at night from November 15 through March 31, 
annually, unless the fishing activity was exempted under 50 CFR 229.32 
(f)(3)(iii), which pertains to restrictions on shark gillnet fishing.
    The objective of the proposed rule is to eliminate serious injuries 
or mortalities of western North Atlantic right whales attributable to 
entanglements with fishing gear and incorporates the time and area 
during which right whale calves are born.
    Available data do not demonstrate that the fishing behavior or 
methodology restricted by the proposed rule is utilized to a great 
extent in the restricted area. Virtually all recorded gillnet harvests 
from this area and season are attributed to runaround gillnets and not 
straight set gillnets. Less than $133 per year of gross revenues in 
total can potentially be attributed to the use of straight set 
gillnets. Further, data on average trip times, soak times, and vessel 
characteristics indicate that the fishery is primarily prosecuted as a 
day fishery. Therefore, any direct economic impacts on the fishery will 
be minimal since the fishery does not substantially operate in the 
manner being restricted.
    Generally, a fish-harvesting business is considered a small 
business if it is independently owned and operated, not dominant in its 
field of operation, and has annual receipts not in excess of $3.5 
million. One hundred two unique entities (vessels or persons) have 
reported landings in this fishery over the 1997-2000 fishing seasons. 
Total dockside value of commercial harvests by these entities from all 
fishing activities and all gears averaged from $16,000 to $24,000 per 
year over this period. The maximum gross revenues were less than 
$300,000. All operations would be considered small business entities. 
Thus, business operations in this fishery consist solely of small 
business entities.
    The determination of significant economic impact can be ascertained 
by examining two criteria: disproportionality and profitability. The 
disproportionality question is: Do the regulations place a substantial 
number of small entities at a significant competitive disadvantage to 
large entities? All business entities participating in the respective 
area of the south Atlantic gillnet fishery are considered small 
business entities. Thus, the issue of disproportionality does not arise 
in the present case.
    The profitability question is: Do the regulations significantly 
reduce profit for a substantial number of small entities? The 
predominant harvest methodology in this fishery is runaround (i.e., 
strike) gillnets and day trips and not the methodology restricted by 
the proposed rule. Less than $500, or $133 per year, of reported 
landings from all participants over the 1997-2000 fishing seasons is 
potentially attributable to straight set gillnets. Participation ranged 
from 41 to 62 vessels during this period, for an average of less than 
$4 per vessel. Whether spread over multiple participants or attributed 
to a single vessel, it is clear that restricting the use of this gear 
will not significantly reduce profits for a substantial number of small 
entities. On this basis, the proposed rule may be adjudged not to have 
a significant economic impact on a substantial number of small 
entities.
    Accordingly, an initial regulatory flexibility analysis was not 
prepared. Copies of the RIR are available (see ADDRESSES).
    This proposed rule has been determined not to be significant for 
the purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 229

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

    Dated: March 19, 2002.
Rebecca Lent
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, the National Marine 
Fisheries Service proposes to amend 50 CFR part 229 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. 1371 et seq.

    2. In Sec. 229.3, paragraph (k) is revised to read as follows:


Sec. 229.3  Prohibitions.

* * * * *
    (k) It is prohibited to fish with gillnet gear in the areas and for 
the times specified in Sec. 229.32(f)(1) through (f)(4), unless the 
gear or the person with gillnet gear complies with the gear marking 
requirements specified in Sec. 229.32(f)(2), the requirements for 
observer coverage as specified in Sec. 229.32(f)(3), and the closures, 
requirements, and other restrictions as specified in 229.32(f)(4).
* * * * *

    3. In Sec. 229.32, the heading of paragraph (f) and paragraph 
(f)(3) are revised; and paragraph (f)(4) is added to read as follows:


Sec. 229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (f) Restrictions applicable to the Southeast U.S. Restricted Area 
and the Southeast U.S. Observer Area.* * *
* * * * *
    (3) Observer requirement.No person may fish with shark gillnet gear 
in the southeast U.S. observer area from November 15 through March 31 
of the following year unless the operator of the vessel calls the SE 
Regional Office in St. Petersburg, FL, not less than 48 hours prior to 
departing on any fishing trip in order to arrange for observer 
coverage. If the Regional Office requests that an observer be taken on 
board a vessel during a fishing trip at any time from November 15 
through March 31 of the following year, no person may fish with shark 
gillnet gear aboard that vessel in the southeast U.S. observer area 
unless an observer is on board that vessel during the trip.
    (4) Restricted Period, closure and restrictions, and exemption.
    (i) Restricted period. The restricted period for the southeast U.S. 
restricted area is from November 15 through March 31 of the following 
year, unless the Assistant Administrator revises this restricted period 
in accordance with paragraph (g) of this section.
    (ii) Closure for shark gillnet gear.Except as provided under 
paragraph (f)(4)(iv) of this section, no person may fish with shark 
gillnet gear in the southeast U.S. restricted area during the 
restricted period.
    (iii) Restrictions for straight sets.Except as provided for shark 
gillnet gear under paragraph (f)(4)(iv) of this section, no person may 
fish with a straight set of gillnet gear at night in the southeast U.S. 
restricted area during the restricted period. A straight set is defined 
as a set in which the gillnet is placed in a line in the water column, 
as

[[Page 14694]]

opposed to a circular set in which the gillnet is placed to encircle an 
area in the water column.
    (iv) Special provision for strikenets.Fishing for sharks with 
strikenet gear is exempt from the restrictions under paragraphs 
(f)(4)(ii) and (f)(4)(iii) of this section if:
    (A) No nets are set at night or when visibility is less than 500 
yards (460m).
    (B) Each set is made under the observation of a spotter plane.
    (C) No net is set within 3 nautical miles of a right, humpback, fin 
or minke whale.
    (D) If a right, humpback, fin or minke whale moves within 3 
nautical miles of the set gear, the gear is removed immediately from 
the water.
* * * * *
[FR Doc. 02-7129 Filed 3-26-02; 8:45 am]
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