[Federal Register Volume 68, Number 76 (Monday, April 21, 2003)]
[Rules and Regulations]
[Pages 19464-19465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9786]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030414084-3084-01; I.D. 021202A]
RIN 0648-AR02


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 issues a correction to final rules implementing the 
Atlantic Large Whale Take Reduction Plan (ALWTRP) in order to correct 
unintended errors from the preamble and regulatory text in the final 
rules published in the Federal Register on February 16, 1999 and 
September 23, 2002. This technical amendment clarifies the requirements 
for shark gillnet gear in the southeast U.S. and corrects an error 
regarding fisheries affected by the final rules.

DATES: Effective April 21, 2003.

ADDRESSES: Copies of the Environmental Assessment (EA), the Regulatory 
Impact Review (RIR), and the Regulatory Flexibility Act (RFA) analysis 
for the final rules that are being corrected are available from 
Protected Resources Division, NMFS/Southeast Region, 9721 Executive 
Center Dr. North, St. Petersburg, FL 33702-2432. The ALWTRP Compliance 
guide, Atlantic Large Whale Take Reduction Team (ALWTRT) meeting 
summaries, and a progress report on implementation of the ALWTRP may be 
obtained by writing to Diane Borggaard, NMFS/Northeast Region, 1 
Blackburn Dr., Gloucester, MA 01930 or to Katie Moore, NMFS/Southeast 
Region, 9721 Executive Center Dr., St. Petersburg, FL 33702-2432. 
Copies of the EA, the RIR, and the RFA analysis may also be obtained 
from the ALWTRP web site listed (See Electronic Access).

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. 
Individuals who use a telecommunications device for the deaf (TDD) may 
call the Federal Information Relay Service at 1-800-877-8339 between 8 
a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for this technical amendment 
and the take reduction planning process may be obtained from the ALWTRP 
web site: http://www.nero.nmfs.gov/whaletrp/. Copies of the most recent 
Stock Assessment Reports may be downloaded from the Internet at http://www.nefsc.nmfs.gov/psb/assesspdfs.htm. Information on disentanglement 
events is available on the web page of NMFS' whale disentanglement 
contractor, the Center for Coastal Studies, http://www.coastalstudies.org/.

Background

    NMFS published a final rule (67 FR 59471, September 23, 2002) 
implementing approved modifications in the ALWTRP recommended by the 
ALWTRT to satisfy the requirements of the Endangered Species Act and 
the Marine Mammal Protection Act (MMPA). Details concerning the 
justification for and development of the rule were provided in the 
preamble to the proposed rule (67 FR 14690, March 27, 2002) and are not 
repeated here.
    This technical amendment clarifies and corrects the preamble to the 
final rule. By truncating the definition of the Southeast Atlantic 
gillnet fishery and misstating a word, the rule incorrectly defined the 
fisheries affected. On page 59472, column 1, the first paragraph, 
second sentence under Changes Proposed for the ALWTRP for Gillnet Gear 
in the preamble should read:
    ``This final rule regulates the MMPA's List of Fisheries (LOF) 
definition for the Southeast Atlantic gillnet fishery which includes 
any type of gillnet gear for any species (except shark gillnetting 
effort using 5-inch (12.7-cm) or greater stretched mesh south of the 
South Carolina/Georgia border) in waters south of a line extending due 
east from the North Carolina/South Carolina border and south and east 
of the fishery management council demarcation line between the Atlantic 
Ocean and the Gulf of Mexico (50 CFR 600.105).''
    Fishing for sharks with strikenet gear is exempt from restrictions 
detailed in 50 CFR 229.32(f)(4) if the fishers adhere to a list of 
requirements. All of the requirements must be met in order for this 
exemption to apply. For clarity, NMFS is adding the term ``and'' before 
the last requirement of the list. The term ``and'' was included in the 
proposed rule (62 FR 16519, April 7, 1997), the interim final rule's 
comments and responses (62 FR 29157, July 22, 1997, comment 67), but 
was inadvertently omitted from the interim final rule and the final 
rule (64 FR 7529, February 16, 1999) regulatory text.
    This final rule will also correct an error in the regulatory text 
of the February 16, 1999 final rule (64 FR 7529) by deleting the 
reference to minke whales. Two of the requirements necessary to obtain 
an exemption, as discussed in the previous paragraph of this preamble, 
specifically relate to a list of whale species included in that 
regulatory provision. Minke whale was not in this list of species in 
the proposed rule (April 7, 1997, 62 FR 16519) or the interim final 
rule (62 FR 39157, July 22, 1997). However, minke whale was included in 
this list of species in the regulatory text of final rule (64 FR 7529, 
February 16, 1999) without explanation and NMFS did not intend to 
include it.

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 amendments merely correct 
the preamble and inadvertent changes to regulatory text and will have a 
de minimis effect, if any, on the regulated community. The corrections 
do not increase the scope of the regulated community nor add new 
requirements. Because this portion of the rule corrects and clarifies 
provisions and makes non-

[[Page 19465]]

substantive or de minimis changes to the ALWTRP regulations, good cause 
exists under 5 U.S.C. 553(d) not to delay the effective date of this 
final rule for 30 days.
    In addition, in regard to removing minke whales from the regulatory 
text, NMFS did not intend to change the regulatory text to include 
minke whales and had no authority to do so; therefore, NMFS has no 
discretion in the decision to correct the provision. Because this 
portion of the rule relieves a restriction, it is not subject to a 30-
day delay in effective date.
    Because a general notice of proposed rulemaking is not required for 
this final rule 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.

List of Subjects in 50 CFR Part 229

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

    Dated: April 15, 2003.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, the National Marine Fisheries 
Service amends 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.

0
2. In Sec.  229.32, paragraph (f)(4)(iv) is revised to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (f) * * *
    (4) * * *
    (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 or 
fin whale; and
    (D) If a right, humpback or fin whale moves within 3 nautical miles 
of the set gear, the gear is removed immediately from the water.
* * * * *
[FR Doc. 03-9786 Filed 4-18-03; 8:45 am]
BILLING CODE 3510-22-S