[Federal Register Volume 67, Number 208 (Monday, October 28, 2002)]
[Rules and Regulations]
[Pages 65722-65727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27363]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 020819201-2201-01; I.D.'s 091401B and 092401E]
RIN 0648-AQ23


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: Final rule, technical amendment.

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SUMMARY: NMFS is issuing a correction to the interim final rule and 
final rule implementing the ALWTRP's Seasonal Area Management (SAM) and 
Dynamic Area Management (DAM) programs, respectively, which were 
published in the Federal Register on January 9, 2002. The purpose of 
this action is to correct errors in and make minor clarifications to 
the SAM interim final rule and to the DAM final rule. Some aspects of 
the SAM and DAM program were inadvertently omitted from the associated 
regulatory text and this technical amendment makes the regulatory text 
reflect information provided in the rules' preambles.

DATES: Effective October 28, 2002.

ADDRESSES: Copies of the Environmental Assessment (EA), the Regulatory 
Impact Review (RIR), and the Final Regulatory Flexibility Analysis 
(FRFA), are available from the Protected Resources Division, NMFS, 1 
Blackburn Drive, Gloucester, MA 01930-2298. Atlantic Large Whale Take 
Reduction Team (ALWTRT) meeting summaries, and progress reports on 
implementation of the ALWTRP may be obtained by writing Diane 
Borggaard, NMFS, Northeast Region, 1 Blackburn Dr., Gloucester, MA 
01930 or Katherine Wang, NMFS, Southeast Region, 9721 Executive Center 
Dr., St.Petersburg, FL 33702-2432.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast 
Region, 978-281-9145; or Patricia Lawson, NMFS, Office of Protected 
Resources, 301-713-2322. Individuals who use a telecommunications 
device for the deaf (TDD) may call theFederal Information Relay Service 
at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday 
through Friday, excludingFederal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP and the take 
reduction planning process can be downloaded from the ALWTRP web site 
at http://www.nero.nmfs.gov/whaletrp/. Copies of the most recent marine 
mammal stock assessment reports may be obtained by writing to Richard 
Merrick, NMFS, 166 Water St., Woods Hole, MA 02543 or can be downloaded 
from the Internet at http://www.wh.whoi.edu/psb/sar2001.pdf. In 
addition, copies of the document entitled ``Defining Triggers for 
Temporary Area Closures to Protect Right Whales from Entanglements: 
Issues and Options'' and ``Identification of Seasonal Area Management 
Zones for North Atlantic Right Whale Conservation'' are available by 
writing to Diane Borggaard, NMFS, Northeast Region, 1 Blackburn Dr., 
Gloucester, MA 01930 or can be downloaded from the Internet at http://www.nero.nmfs.gov/whaletrp/.

Background

    This final rule modifies the Atlantic Large Whale Take Reduction 
Plan as deemed necessary by NMFS to satisfy requirements of the 
Endangered Species Act (ESA) and the Marine Mammal Protection Act 
(MMPA). On January 9, 2002, NMFS published a SAM interim final rule (67 
FR 1142) and DAM final rule (67 FR 1133) in the Federal Register. The 
purpose of this final rule is to correct errors in and make minor 
clarifications in the SAM interim final rule and DAM final rule 
regulatory text. NMFS had discussed the SAM and DAM programs in the 
preambles to the SAM and DAM rules, however, some aspects of each 
program were inadvertently omitted from the associated regulatory text.

Corrections

    NMFS noted in the preamble to the DAM proposed (66 FR 50160) and 
final rules (67 FR 1133) that if NMFS decides not to implement 
restrictions within a DAM zone, it will issue an alert to fishermen 
requesting that they voluntarily remove lobster trap and anchored 
gillnet gear from a DAM zone and asking them not to set additional gear 
inside it. However, NMFS inadvertently omitted this language from the 
regulatory text section of the DAM rule.
    The new and existing SAM gear requirements discussed in the 
preambles to the SAM proposed and interim final rules are intended to 
be required in addition to existing requirements for Northern Inshore 
State Lobster Waters, Northern Nearshore Lobster Waters, Offshore 
Lobster Waters, and Other Northeast Gillnet Waters or in place of the 
existing requirements for those areas to the extent the SAM gear 
requirements conflict with them. But, text to that effect did not 
appear in the proposed rule's regulatory text. NMFS noted this 
discrepancy and intended to correct this oversight in the interim final 
rule. However, this clarification was also inadvertently omitted from 
the interim final rule's regulatory text section. Therefore, the 
regulations are corrected to note that the SAM gear modifications 
supercede requirements found at existing ALWTRP fishery specific area 
requirements when they are more restrictive.
    The SAM interim final rule also incorrectly defined SAM East to 
include Point 9, 42&30' N Lat., 66[deg]50' W Long., which is outside 
the Exclusive Economic Zone. This rule removes this point from the 
regulations and renumbers the remaining points. Also, NMFS clarifies 
that the gear restriction in Sec.  229.32 (g)(4)(ii)(B) applies in SAM 
East. While the fact that the gear restrictions in Sec.  
229.32(g)(4)(ii)(B) apply in SAM East is clear from the structure of 
the regulations, NMFS is adding the words ``in SAM East'' for added 
clarity.
    A number of clarifications are made to Sec.  229.32 (g)(4)(i)(B). 
First, NMFS clarifies that the gear restriction in Sec.  229.32 
(g)(4)(i)(B) applies in SAM West. While the fact that the gear 
restrictions in Sec.  229.32(g)(4)(i)(B) apply in SAM West is clear 
from the structure of the regulations, NMFS is adding the words ``in 
SAM West'' for added clarity. Second, NMFS mistakenly omitted from the 
regulatory text for the SAM interim final rule the following 
requirements: (1) buoy lines are to be composed entirely of sinking or 
neutrally buoyant

[[Page 65723]]

line; and (2) floating ground lines and buoy lines are prohibited. 
However, the preambles to the proposed and interim final rules for SAM 
stated that the ground lines and buoy lines were to be composed 
entirely of sinking or neutrally buoyant line in SAM areas, and 
indicated that floating ground lines and buoy lines are prohibited. 
Thus, the wording at Sec.  229.32 (g)(4)(i)(B)(1) and (g)(4)(i)(B)(2) 
has been changed accordingly to reflect the discussion in the 
preambles.
    Third, NMFS wrote ``sinking ground line'' in the heading at the 
beginning of Sec.  229.32 (g)(4)(i)(B)(2); however, this has been 
changed to ``ground line'' to clarify the requirement stated in the 
preambles and the regulatory text following the heading that ground 
lines be made entirely of sinking or neutrally buoyant line. Fourth, 
NMFS noted on the SAM Gillnet Gear graphics that five weak links with a 
breaking strength not to exceed 1,100 lb (498.9 kg) each are required 
on a net panel. However, the word ``each'' was not in the regulatory 
text to the SAM interim final rule. Through this rule, Sec.  229.32 
(g)(4)(i)(B)(1)(iii) is clarified to indicate that the breaking 
strength of each weak link on a net panel must not exceed 1,100 lb 
(498.9 kg).
    The SAM interim final rule and associated gear modifications were 
effective March 1, 2002; however, NMFS mistakenly indicated on the SAM 
Northern Nearshore and Inshore Lobster Gear and SAM Offshore Lobster 
Gear graphics (Figures 2 and 3) that the single buoy line requirement 
was effective January 1, 2003. This correction removes the incorrect 
effective date from the graphics.
    Figure 4 also incorrectly indicated on the SAM Gillnet Gear graphic 
that the single buoy line requirement was effective January 1, 2003, 
and described the SAM gillnet gear anchoring system as a 22 lb (9.9 kg) 
Danforth-style anchor. As noted above, the SAM interim final rule and 
associated gear modifications were effective March 1, 2002. 
Additionally, the regulations state that all anchored gillnets, 
regardless of the number of net panels, must be securely anchored with 
the holding power of at least a 22 lb (9.9 kg) Danforth-style anchor at 
each end of the net string. This language is consistent with the 
preamble of the proposed and interim final rule for SAM.

Classification

    The Assistant Administrator (AA) finds that good cause exists to 
waive the requirement to provide prior notice and the opportunity for 
comment, pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such 
procedures would be unnecessary. Prior notice and opportunity for 
comment are unnecessary because the technical amendment to the 
regulations implementing the SAM and DAM programs merely clarifies 
NMFS' intent as explained in the preambles to the rules and will have a 
de minimus effect, if any, on the regulated community. The 
clarifications do not increase the scope of the regulated community nor 
add new requirements. Also, because this rule corrects and clarifies 
provisions and makes non-substantive or de minimus changes to the SAM 
and DAM regulations good cause exists, under 5 U.S.C. 553(d), not to 
delay the effective date for 30 days.
    Because a general notice of proposed rulemaking is not required 
under 5 U.S.C. 553, or any other law, the analytical requirements of 
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. 
While a Regulatory Flexibility Analysis is not required and none has 
been prepared for this technical amendment, the economic impacts on 
affected fisheries of the rules and alternatives to them were 
considered by NMFS. Copies of the analyses for the SAM interim final 
rule and the DAM final rule may be obtained from NMFS (see ADDRESSES) 
by requesting copies of the EA/RIRs for each program.

    Dated: October 17, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

Corrections to the Preamble of the Interim Final Rule

    In rule FR Doc. 02-274, published January 9, 2002 (67 FR 1142), 
make the following corrections:
    1. On pages 1146 and 1147, Figures 2 and 3 are corrected to read as 
follows:
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[[Page 65724]]

[GRAPHIC] [TIFF OMITTED] TR28OC02.000


[[Page 65725]]


[GRAPHIC] [TIFF OMITTED] TR28OC02.001


[[Page 65726]]


    2. On page 1149, Figure 4 is corrected to read as follows:
    [GRAPHIC] [TIFF OMITTED] TR28OC02.002
    
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[[Page 65727]]

List of Subjects in 50 CFR Part 229

    Fisheries, Marine mammals.

    For the reasons set out in the preamble, 50 CFR part 229 is 
corrected by making the following correcting amendments:

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.


Sec.  229.32  [Corrected]

    2. Corrected Sec.  229.32 as follows:
    a. Paragraph (g)(3)(iii) introductory text is corrected by removing 
the word ``either'' in the last sentence;
    b. Paragraph (g)(3)(iii)(A) is corrected by removing the word 
``or'' at the end of the text;
    c. Paragraph (g)(3)(iii)(B) is corrected by adding ``and/or'' at 
the end of the text;
    d. Paragraph (g)(3)(iii)(C) is correctly designated as 
(g)(3)(iii)(D); and
    e. A new paragraph (g)(3)(iii)(C) is added and paragraphs (g)(4) 
introductory text, (g)(4)(i)(B) and (g)(4)(ii) are correctly revised to 
read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (g)* * *
    (3)* * *
    (iii)* * *
    (C) Issue an alert to fishermen using appropriate media to inform 
them of the fact that right whale density in a certain area has 
triggered a DAM zone. In the alert, NMFS will provide detailed 
information on the location of the DAM zone and the number of animals 
sighted within it. Furthermore, NMFS will request that fishermen 
voluntarily remove lobster trap and anchored gillnet gear from the DAM 
zone and ask that no additional gear be set inside it for 15 days or 
until NMFS rescinds the alert.
* * * * *
    (4) Seasonal Area Management (SAM) Program. In addition to existing 
requirements for vessels deploying anchored gillnet or lobster trap 
gear in the Other Northeast Gillnet Waters, Northern Inshore State 
Lobster Waters, Northern Nearshore Lobster Waters, and Offshore Lobster 
Waters found at Sec.  229.32 (b) - (d), a vessel may fish in the SAM 
Areas as described in paragraphs (g)(4)(i)(A) and (g)(4)(ii)(A) of this 
section, which overlay the previously mentioned areas, provided the 
vessel complies with the gear requirements specified in paragraphs 
(g)(4)(i)(B) and (g)(4)(ii)(B) of this section during the times 
specified in those paragraphs. The gear requirements in (g)(4)(i)(B) 
and (g)(4)(ii)(B) supercede requirements found at Sec.  229.32 (b) - 
(d) when the former are more restrictive than the latter. Copies of a 
chart depicting these areas are available from the Regional 
Administrator upon request.
    (i)* * *
    (B) Gear requirements. Unless otherwise authorized by the Assistant 
Administrator for Fisheries, NMFS, in accordance with paragraph (g)(2) 
of this section, from March 1 through April 30, no person may fish with 
anchored gillnet or lobster trap gear in SAM West unless that person's 
gear complies with the following gear characteristics:
    (1)Anchored gillnet gear. (i) Ground lines and Buoy lines--All 
ground lines and buoy lines must be made entirely of sinking or 
neutrally buoyant line. Floating ground lines and buoy lines are 
prohibited.
    (ii) Buoy weak links--All buoy lines are attached to the buoy with 
a weak link having a maximum breaking strength of up to 1,100 lb (498.9 
kg). Weak links may include swivels, plastic weak links, rope of 
appropriate diameter, hog rings, rope stapled to a buoy stick, or other 
materials or devices approved in writing by the Assistant 
Administrator.
    (iii) Net panel weak link--Each net panel must have a total of five 
weak links. The breaking strength of each of these weak links must not 
exceed 1,100 lb (498.9 kg). The weak link requirements apply to all 
variations in panel size. Three of the five weak links must be located 
on the floatline. One floatline weak link must be placed at the center 
of the net panel, and two weak links must be placed as close as 
possible to each of the bridle ends of the net panel. The remaining two 
of the five weak links must be placed in the center of each of the up 
and down lines at either end of each panel.
    (iv) Buoy line--No more than one buoy line per net string may be 
used, and it must be deployed at the northern or western end of the 
gillnet string depending on the direction of the set.
    (v) Gillnet anchor--All anchored gillnets, regardless of the number 
of net panels, must be securely anchored with a holding power of at 
least a 22 lb (9.9 kg) Danforth-style anchor at each end of the net 
string.
    (2) Lobster Trap gear. (i) Ground lines and Buoy lines--All ground 
lines and buoy lines must be made entirely of sinking or neutrally 
buoyant line. Floating ground lines and buoy lines are prohibited.
    (ii) [Reserved]
    (iii) Offshore Lobster Waters Area buoy weak links--All buoy lines 
must be attached to the buoy with a weak link having a maximum breaking 
strength of up to 1,500 lb (680.4 kg). Weak links may include swivels, 
plastic weak links, rope of appropriate diameter, hog rings, rope 
stapled to a buoy stick, or other materials or devices approved in 
writing by the Assistant Administrator.
    (iv) Buoy line--No more than one buoy line per trawl is allowed. 
The buoy line must be attached to the northern or western end of the 
trawl string depending on the direction of the set. These requirements 
supersede the requirements found at Sec.  697.21, which require one 
radar reflector at each end of a trawl with more than three traps.
    (ii) SAM East. (A) Area. SAM East consists of all waters bounded by 
straight lines connecting the following points in the order stated:

                                SAM EAST
------------------------------------------------------------------------
                  Point                       N. Lat.        W. Long.
------------------------------------------------------------------------
                  SAM5                      41[deg]48.9'      69[deg]24'
                  SAM4                        42[deg]30'      69[deg]24'
                  SAM8                        42[deg]30'      67[deg]26'
                  SAM9                        41[deg]45'      66[deg]50'
                  SAM10                       41[deg]45'      68[deg]17'
                  SAM11                       42[deg]10'      68[deg]31'
------------------------------------------------------------------------

    (B) Gear requirements. Unless otherwise authorized by the Assistant 
Administrator for Fisheries, NMFS, in accordance with paragraph (g)(2) 
of this section, from May 1 through July 31, no person may fish with 
anchored gillnet or lobster trap gear in SAM East unless that person's 
gear complies with the gear characteristics found at paragraph 
(g)(4)(i)(B) of this section.
* * * * *
[FR Doc. 02-27363 Filed 10-25-02; 8:45 am]
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