[Federal Register Volume 69, Number 105 (Tuesday, June 1, 2004)]
[Proposed Rules]
[Pages 30857-30864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12356]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[040506143-4143-01; I.D. 052504C]
RIN 0648-AS36


Endangered Fish and Wildlife; Advance Notice of Proposed 
Rulemaking (ANPR) for Right Whale Ship Strike Reduction

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

ACTION: Advance notice of proposed rulemaking (ANPR); request for 
comments.

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SUMMARY: NMFS is considering regulations to implement a strategy to 
reduce mortalities to North Atlantic right whales as a result of vessel 
collisions. The strategy addresses the lack of recovery of the 
endangered North Atlantic right whale by reducing the likelihood and 
threat of ship strike mortalities to the species. NMFS is soliciting 
comments on the strategy through this advance notice of proposed 
rulemaking.

DATES: Written and electronic comments must be received (see ADDRESSES) 
no later than 5 p.m. Eastern Standard Time on August 2, 2004.

ADDRESSES: Comments should be sent to: Chief, Marine Mammal 
Conservation

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Division, Attn: Right Whale Ship Strike Strategy, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. 
Comments may be sent via fax to (301)427-2522, Attn: Right Whale Ship 
Strike Strategy. Comments may also be sent via email to 
[email protected] or to the Federal eRulemaking portal: 
http://www.regulations.gov (follow instructions for submitting 
comments).

FOR FURTHER INFORMATION CONTACT: Aleria Jensen, Fishery Biologist, 
Office of Protected Resources, NMFS, at (301) 713-2322 x169; Pat 
Gerrior, Fishery Biologist, Northeast Regional Office, NMFS, at (508) 
495-2264; or Barb Zoodsma, Fishery Biologist, Southeast Regional 
Office, NMFS, at (904) 321-2806.

SUPPLEMENTARY INFORMATION:

Background

    NMFS has been working with state and other Federal agencies, 
concerned citizens and citizen groups, environmental organizations, and 
the shipping industry to address the ongoing threat of ship strikes to 
North Atlantic right whales as part of its responsibilities related to 
right whale recovery. The North Atlantic right whale was severely 
depleted by commercial whaling and, despite protection from commercial 
harvest, has not recovered. The current population is believed to 
number about 300 animals and is considered one of the most critically 
endangered large whales in the world. Recent modeling exercises suggest 
that if current trends continue, the population could go extinct in 
less than 200 years (Caswell et. al., 1999). These models indicate that 
the loss of even a single individual may contribute to the extinction 
of the species; likewise, according to the models, preventing the 
mortality of one adult female a year alters the projected outcome.
    Mortality due to entanglements in fishing gear and collisions with 
ships are the two significant human-caused threats to right whales 
(Knowlton and Kraus, 2001; Jensen and Silber, 2003). Collisions with 
ships account for more confirmed right whale mortalities than any other 
human-related activity. Ship strikes are responsible for over 50 
percent of known human-related right whale mortalities and are believed 
to be one of the principal causes for the lack of recovery in this 
population. Right whales are located in, or are adjacent to, several 
major shipping corridors on the eastern U.S. and southeastern Canadian 
coasts.
    NMFS has established a right whale ship strike reduction program. 
Conservation activities in this program include the use of aerial 
surveys to notify mariners of right whale sighting locations; the 
operation of Mandatory Ship Reporting systems to provide information to 
mariners entering right whale habitat; interagency collaboration with 
the U.S. Coast Guard (USCG), which issues periodic notices to mariners 
regarding ship strikes; the support of regional Recovery Plan 
Implementation Teams that provide recommendations to NFMS on recovery 
activities; the support of shipping industry liaisons; and 
consultations under section 7 of the Endangered Species Act (ESA).

Strategy To Reduce Ship Strikes of Right Whales (Strategy)

    Despite these efforts, right whales continue to be killed as a 
result of collisions with vessels. NMFS has recognized that this 
complex problem requires additional, more pro-active measures to reduce 
or eliminate the threat of ship strikes to right whales. Therefore, 
NMFS contracted a report on recommended ship strike reduction 
management measures, and used this 2001 report as a baseline to develop 
a proposed Strategy to Reduce Ship Strikes of Right Whales (Strategy). 
Measures contained within the Strategy attempt to reduce the overlap 
between ships and whales in order to reduce the likelihood of ship 
strikes to the extent practicable, while minimizing the adverse impact 
on ship operations. The Strategy allows for regional implementation and 
accommodates differences in oceanography, commercial ship traffic 
patterns, navigational concerns, and right whale use. Implementation of 
the Strategy requires research, proposed and final rulemaking and 
international actions to be taken.
    The draft Strategy consists of the following five elements: (1) The 
establishment of new operational measures for the shipping industry, 
including consideration of routing and speed restrictions; (2) the 
negotiation of a Right Whale Conservation Agreement with the Government 
of Canada; (3) the development and implementation of education and 
outreach programs; (4) a review of the need for ESA section 7 
consultations with all Federal agencies who operate or authorize the 
use of vessels in waters inhabited by right whales, or whose actions 
directly or indirectly affect vessel traffic; and (5) the continuation 
of ongoing research, conservation, and education/outreach activities. 
Neither the draft Strategy nor any other conservation measures 
identified through public comment are intended to replace any 
conservation and management measures currently in place. NMFS has 
developed a framework of proposed operational measures for the shipping 
industry as an element of this Strategy, based on the proposed suite of 
operational measures in the contracted 2001 report.
    Based on information summarized above regarding mortalities 
attributable to ship strikes and the population size of North Atlantic 
right whales, NMFS proposes to implement these measures through its 
broad rulemaking authority pursuant to the MMPA and ESA. Under MMPA 
section 112(a) (16 U.S.C. 1382(a)), NMFS has authority, in consultation 
with other Federal agencies to the extent other agencies may be 
affected, to ``prescribe such regulations as are necessary and 
appropriate to carry out the purposes of [the MMPA].'' In addition, 
NMFS proposes to implement these measures as appropriate to promote 
conservation, implement recovery measures, and enhance enforcement 
under the ESA. However, NMFS has not made any final decision on these 
measures or alternatives and is seeking comments through this ANPR on 
these proposed measures as well as any alternatives.

Regional Implementation of the Proposed Strategy

    NMFS is proposing to implement the operational measures in the 
Strategy within each of three broad regions: (a) The southeastern 
Atlantic coast of the U.S., (b) the Mid-Atlantic region, and (c) the 
northeastern U.S. The implementation of operational measures, and the 
specific times and areas (with boundaries) in which the measures would 
be in effect may vary within each region but all would contain specific 
elements to reduce the threat of ship strikes to right whales. The 
operational measures proposed in the Strategy would generally apply to 
non-sovereign vessels 65 ft (19.8 m) and greater based on information 
regarding confirmed ship strikes and known vessel size.
    Southeastern United States (SEUS): The proposed measures in the 
SEUS focus on the area where and time when the vast majority of right 
whales have occurred. This area correlates to where survey effort has 
been concentrated, in recent years.
    Area: The area influenced by the proposed rulemaking is bounded to 
the north by the latitudinal line 31[deg] 27'N (coincides with the 
northernmost boundary of the mandatory ship reporting system) and to 
the south by

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latitudinal line 29[deg] 45'N. The eastern offshore boundary is formed 
by a longitudinal line at 81[deg] 00'W. and the western boundary is 
formed by the shoreline. (See Figure 1).
    Time: December 1st through March 31st
    Proposed Regulatory Measures: First, if warranted and so indicated 
by the analysis in the Port Access Route Study called for under Non-
regulatory Measures, designated routes would be established with the 
greatest possibility of reducing the risk of collisions between vessels 
and whales.
    Second, seasonal speed restrictions would be implemented in those 
lanes during the time period indicated above, unless it is determined 
that there are no whales present in the area (the criteria for 
determining `no whales present' have yet to be developed). Uniform 
speed restrictions will be determined through public comment and 
further analyses; however, proposed speed restrictions would likely be 
in the range of 10-14 knots. The proposed speed measure is expected to 
protect right whales by potentially allowing the animals time to avoid 
an oncoming ship. Reduced speeds may also lessen the hydrodynamic 
forces that cause a whale to be pushed away but then driven back toward 
a moving ship or propeller. Depending on the circumstances, routing 
measures alone may not provide sufficient risk reduction; therefore, a 
proposed speed measure would provide an additional degree of risk 
reduction.
    Third, NMFS would develop an understanding with operators of 
vessels (e.g., large recreational vessels, tugs and barges, etc.) which 
primarily transit along the coast locally and between ports. The 
understanding would be that vessels use the designated traffic lanes or 
avoid transiting the area to the maximum extent practicable and, for 
those that do not use the lanes or avoid the area, impose a uniform 
speed restriction.
    Non-regulatory measures: First, NMFS would work in partnership with 
the United States Coast Guard (USCG) to conduct a Port Access Route 
Study (PARS) for the Ports of Jacksonville, Fernandina, and Brunswick. 
A PARS is a USCG process whereby a study is performed to determine safe 
access routes for vessels proceeding to and from U.S. ports, and it 
would ensure that a full hearing takes place for any routing measure 
considered and would allow for the integration of views relating to 
maritime safety, and right whale protection from all entities. The 
intent of the PARS would be to reduce the confluence of right whales 
and ships in this area and allow measures to consider navigational 
safety while taking into account the necessity of protecting right 
whales.
    Mid-Atlantic Region of the United States (MAUS): The MAUS is a 
principal migratory corridor for right whales that travel between the 
calving/nursery areas in the SEUS, and feeding grounds in the northeast 
U.S. and Canada. Two right whale calves were found dead in the mid-
Atlantic region in 2001 and there is a high probability that these 
deaths were caused by ship strikes. A dead mature female right whale 
was observed floating off Virginia (subsequently stranded on the coast 
of North Carolina in 2004) and, although final histopathology results 
are still pending, preliminary analysis indicated the whale likely died 
as a result of a vessel collision.
    Ship traffic entering ports in this area, or transiting through it, 
continually crosses the whales' north-south migratory corridor. 
Satellite tagging data, opportunistic sighting data, and historical 
records of right whale takes, indicate that right whales often occur 
within 30 nautical miles (48 kilometers) of the coast and in waters 
less than 25 fathoms. The following proposed measures reflect this 
information.
    Area and Time: The locations and time periods included for the mid-
Atlantic measures are closely tied to sighting data as well as 
available information on vessel traffic in and out of the following 
ports (See Figure 2). Times for the seasonal management areas are being 
proposed as ``rolling'' in order to best account for the whales' 
migratory presence around particular ports while minimizing unnecessary 
impact to industry. The precise start and stop dates for this region 
will be further refined based on comments on this ANPR, and during a 
series of public meetings. However, the area for proposed operational 
measures and rolling dates are based on the historical data regarding 
the occurrence of right whales in this region (possible distances from 
shore are in brackets) and may include the following:
    (a) South and east of Block Island Sound (approximate reference 
points: Montauk Point and the western end of Martha's Vineyard), (20-
30nm): March-April; September-October.
    (b) Ports of New York/New Jersey (30nm): February-April; September-
October.
    (c) Delaware Bay (Ports of Philadelphia and Baltimore)(20-30nm): 
February-April; October-December.
    (d) Entrance to the Chesapeake Bay (Ports of Hampton Roads and 
Baltimore)(30nm): February-April; November-December.
    (e) Ports of Morehead City and Beaufort, NC (20-25nm): December-
April.
    (f) Port of Wilmington, NC (20nm): December-April.
    (g) Port of Georgetown, SC (20-30nm): October-April.
    (h) Port of Charleston (20-25nm): October-April.
    (i) Port of Savannah (25nm): November-April.
    Proposed Regulatory Measures: NMFS, in conjunction with appropriate 
agencies and through public comment and further analyses, would 
establish uniform speed restrictions within 20-30 miles in the 
approaches of the above-named ports and areas. Based on information 
from confirmed ship strikes and known speeds of ships involved in the 
strikes, proposed speed restrictions may be in the range of 10-14 
knots.
    Northeastern United States (NEUS): Right whales occupy and forage 
in four distinct areas in the NEUS: Cape Cod Bay; the area off Race 
Point at the northern end of Cape Cod (Race Point); the Great South 
Channel; and the northern Gulf of Maine. Ship strike reduction measures 
are concentrated in these areas.
    Cape Cod Bay: Right whales frequent Cape Cod Bay in winter and 
spring to feed. The following reflects the peak period(s) when right 
whales are present in this area. The area encompasses the complete Bay 
and it includes all routes traveled by tug, tow and ship traffic (for 
descriptions of PARS and speed restriction considerations, see SEUS 
section above.)
    Area: The entire Cape Cod Bay including the Cape Cod Bay critical 
habitat and the area south of a straight line formed from the northeast 
corner of critical habitat, through the northwest corner of the 
critical habitat, and continuing to the shoreline (See Figure 3).
    Time: January 1st - April 30th
    Proposed Regulatory Measures: First, if warranted and indicated by 
a PARS, routing measures with the greatest possibility of reducing the 
risk of collisions between vessels and whales would be established in 
Cape Cod Bay. Elements to be considered in this PARS are as follows: 
(1) all efforts would be made to reduce the confluence between right 
whales and ships in the Bay; (2) routing measures would be considered 
in right whale critical habitat, as well as the western side of the Bay 
and areas outside critical habitat from Cape Cod Canal, (3) designated 
lanes may be established to minimize the travel distance for those 
ships entering and

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leaving the Port of Provincetown from Cape Cod Canal or from the north, 
and (4) such designated lanes would need to be broad enough to allow 
ships to route around any whales found in the lanes.
    Second, NMFS, with appropriate agencies, would establish speed 
restrictions (determined through public comment and further analyses) 
within designated ship traffic lanes into Provincetown, Massachusetts 
(if indicated through a PARS) to reduce the risk of collisions between 
vessels and whales. Such restrictions would be lifted in those rare 
years when it is determined that there are no whales present in the 
area (the criteria for determining `no whales present' have yet to be 
developed).
    Non-regulatory Measures: First, NMFS would work in partnership with 
the USCG to conduct a PARS for Cape Cod Bay.
    Second, NMFS would also work with the U.S. Army Corps of Engineers 
to provide notices to mariners when they enter Cape Cod Bay from either 
the south (through Cape Cod Canal) or from the north, and to traffic 
southbound out of the canal when whales are sighted south of the NEUS 
area, e.g., off Block Island and Long Island. This would include 
notices to tug and barge traffic, which comprises the majority of 
traffic using the Cape Cod Canal.
    Duties of the Traffic Controllers would include alerting ships' 
masters of right whale locations as provided by NMFS when right whales 
are spotted in areas where Canal traffic may transit. Such alerts to 
include right whale sightings in Cape Cod Bay and the Stellwagen Bank 
National Marine Sanctuary should be given to all east bound Canal 
traffic. Such alerts to include right whale sightings in Rhode Island 
and Block Island Sounds and off Long Island should be given to west 
bound Canal traffic. West bound traffic reporting into the Traffic 
Controllers at the east approach channel (CC Buoy) should also be given 
alerts for right whale sightings in the southwest quadrant of Cape Cod 
Bay. In addition, Traffic Controllers would provide alerts to all 
vessels of 65 ft (19.8 m) and greater, and provide reasonable 
protection for right whales and separation of vessel traffic from right 
whales within the Canal and within the east or west approach channels.
    Off Race Point: Food resources in Cape Cod Bay are significantly 
reduced in availability by the end of April, causing right whales to 
leave the area in search of resources elsewhere. At this time, many of 
these animals travel to the Great South Channel, where they are found 
in large aggregations during spring and early summer. To reach the 
Great South Channel, right whales commonly transit or reside in other 
nearby areas prior to aggregating in the Great South Channel. These 
include Stellwagen Bank, areas to the east of Stellwagen Bank, and also 
the northern end of the Provincetown Slope (the area on the ocean side 
of Cape Cod which runs down to the Great South Channel). The Boston 
shipping lanes concentrate ship traffic through this region. Therefore, 
right whales are potentially vulnerable to ship strikes in this area. 
As a result, limits on speed in this area would provide a means of 
reducing collision risk by allowing whales more time to react to 
oncoming ships. The time and duration of these proposed measures, and 
their geographic extent, have been tightly defined to take into account 
the biological data and to minimize potential burden to industry. The 
time period proposed reflects when whales have historically migrated 
from Cape Cod Bay through this area.
    Area: The area proposed has been developed based on right whale 
sighting data and vessel traffic patterns. This area is a box described 
(See Figure 3) by latitudes and longitudes (degrees and minutes format) 
as follows:
    42[deg] 30' N. 70[deg] 30' W.
    42[deg] 30' N. 69[deg] 54' W.
    42[deg] 00' N. 69[deg] 54' W.
    42[deg] 00' N. 70[deg] 01.8' W.
    follow Massachusetts Coast to
    42[deg] 04.8' N. 70[deg] 10.2' W.
    42[deg] 12' N. 70[deg] 15' W.
    42[deg] 12' N. 70[deg] 30' W.
    Time: April 1st - May 15th
    Proposed Regulatory Measures: The proposed rule would establish a 
uniform speed restriction in the described zone, or as an alternative, 
mariners may route around this area.
    Great South Channel: The Great South Channel is one of the most 
important habitats for right whales within the species' range. Right 
whales aggregate there during spring and early summer to feed on dense 
patches of prey. In some years more than one third of the remaining 
population of North Atlantic right whales can be found in this area at 
any one time, and it is likely that more than half the population feeds 
in or at least passes through this area during the course of the year. 
Some individually identified right whales observed in the Great South 
Channel are seen rarely or not at all in other areas such as the Bay of 
Fundy, emphasizing the importance of this area to the population. For 
much of the time in the Great South Channel, the distribution and 
movements of the whales coincide with those of commercial ship traffic 
in the region, leading to a serious risk of collision. The proposed 
measure seeks to reduce the confluence of ships and whales by 
minimizing the area and time in which whales would be exposed to ship 
traffic.
    Area: The area proposed reflects historical sighting data and 
recent survey data. This area is delineated by latitudes and longitudes 
(degrees and minutes format) as follows (See Figure 3):
    41[deg] 00' N. 69[deg] 03' W.(southern corner)
    42[deg] 08.4' N. 67[deg] 08.4' W. (southern intersection with Hague 
Line)
    42[deg] 30' N. 67[deg] 27' W. (Northern intersection with Hague 
Line)
    42[deg] 30' N. 69[deg] 00' W.
    42[deg] 00' N. 69[deg] 00' W.
    42[deg] 00' N. 69[deg] 43.8' W. (return to first point)
    Time: April 1st - July 31st. The time period for the proposed 
measure reflects the peak period when whales are present.
    Proposed Regulatory Measures: This area would be subject to several 
measures. First, an Area to be Avoided (ATBA) would be proposed to the 
International Maritime Organization (IMO) for adoption adjacent to, and 
east of, the Boston traffic separation scheme (TSS). This ATBA would be 
applicable to ships 300 gross tons and above. This measure would 
require the U.S. to propose an ATBA to, and receive endorsement by, the 
IMO. Second, all vessels under 300 gross tons and greater than or equal 
to 65 ft (19.8 m) (including fishing vessels) would be subject to 
uniform speed restrictions within the ATBA and the critical habitat 
which lies to the southwest of the TSS.

Gulf of Maine

    Area: The Gulf of Maine is considered all waters under U.S. 
jurisdiction to the north of the other management areas for Cape Cod 
Bay, Off Race Point, and the Great South Channel.
    Time: Year-round
    Proposed Regulatory Measures: All areas in the Gulf of Maine would 
be subject to dynamic area management (until such time that ongoing 
broad scale aerial surveys in the Northeast provide additional right 
whale distributional data to inform seasonal management or other 
measures). This would require that a mechanism be implemented whereby a 
precautionary area may be established around the whales, and ships 
would be directed either to divert around the whales or reduce their 
speed and proceed through a designated area with caution (keeping in 
mind navigation safety considerations). If certain concentrations (yet 
to be completely

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specified) of right whales are sighted, then these precautionary area 
measures would be required for a limited period.

All Areas

    Proposed Additional Regulatory Measures: All areas along the 
Atlantic seaboard within the U.S. Exclusive Economic Zone would be 
subject to dynamic area management if certain concentrations (yet to be 
completely specified) of right whales were sighted outside of the time 
for, or beyond the area of, the operation of the above-described 
regional measures. As in the Gulf of Maine measure, this would require 
that a mechanism be developed whereby a precautionary area would be 
established for a limited period around a certain concentration of 
right whales, and ships would be directed either to divert around these 
right whales or reduce their speed and proceed through a designated 
area with caution (keeping in mind navigation safety considerations).

Request for Comments

    NMFS is requesting comments on the proposed measures in the 
Strategy and information discussed in this ANPR. In particular, NMFS is 
soliciting information from the public on the effectiveness of the 
proposed regulatory measures, or other options that need to be 
considered in a proposed Federal rulemaking.

Public Involvement

    NMFS invites the public to submit data, new information, and 
comments identifying relevant environmental and socioeconomic issues 
pertinent to the Strategy and proposed regulatory measures contained 
therein. In addition, NMFS expects to conduct public scoping meetings 
during or following the comment period on the ANPR, and will continue 
to work with other agencies, the shipping industry, researchers, 
environmental groups, and the public throughout this process. The 
public, as well as Federal, state, and local agencies are encouraged to 
participate in the meetings.
    NMFS intends to convene these scoping meetings at several locations 
along the U.S. Atlantic coast in each of the three major regions 
proposed for operational measures: the northeastern U.S.; the mid-
Atlantic U.S.; and the southeastern United States. The dates and 
locations of these meetings will be announced in a future Federal 
Register Notice.

References

    Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival 
probability threatens the North Atlantic right whale. Proc. Nat. Acad. 
Sci. 96:3308-3313.
    Hamilton, P.K., and C.A Mayo. 1990. Population characteristics of 
right whales (Eubalaena glacialis) observed in Cape Cod and 
Massachusetts bays, 1978-1986. Rep. int. Whal. Commn Special issue 
12:203-208.
    Jensen, A.S., and G.K. Silber. 2003. Large whale ship strike 
database. U.S. Dep. Commerce, NOAA Technical Memorandum NMFS-F/OPR-25, 
37 p.
    Kenney, R.D., C.A. Mayo, and H.E. Winn. 2001. Migration and 
foraging strategies at varying spatial scales in western North Atlantic 
right whales: a review of hypotheses. J. Cetacean Res. Manage. (Special 
Issue) 2:251-260.
    Kenney, R.D, H.E. Winn, and M.C. MacAulay. 1995. Cetaceans in the 
Great South Channel,1979-1989: right whale (Eubalaena glacialis). 
Continental Shelf Research, Vol. 15(4-5):385-414.
    Knowlton, A.R., and S.D. Kraus. 2001. Mortality and serious injury 
of northern right whales(Eubalaena glacialis) in the western North 
Atlantic Ocean. Jour. Cetacean Res. and Manag. (Special Issue) 2:193-
208.
    Russell, B.A. 2001. Recommended Measures to Reduce Ship Strikes of 
North Atlantic Right Whales. Submitted to the National Marine Fisheries 
Service in partial fulfillment of NMFS contract 40EMF9000223. 31 pp. 
http://www.nero.noaa.gov/whaletrp/.

Related Links

    For February 2004 press release on right whale ship strikes, see: 
http://www.nefsc.noaa.gov/press_release/advisory04.02.html.
    For information on the Mandatory Ship Reporting system, the Right 
Whale Sighting Advisory System, Northeast Right Whale Early Warning 
System, the Northeast Implementation Team, and an economic analysis of 
proposed ship strike management measures, see: http://www.nero.noaa.gov/whaletrp/.
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    Dated: May 25, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-12356 Filed 5-28-04; 8:45 am]
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