[Federal Register Volume 73, Number 110 (Friday, June 6, 2008)]
[Proposed Rules]
[Pages 32278-32281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1326]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080509647-8651-01]
RIN 0648-AW84


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: The National Marine Fisheries Service (NMFS) proposes to amend 
the regulations implementing the Atlantic Large Whale Take Reduction 
Plan (ALWTRP), to delay the effective date of one of the broad-based 
gear modifications and remove one of the gear-related definitions 
required in the recent amendment to the ALWTRP. Specifically, NMFS is 
proposing to delay the broad-based sinking groundline requirement for 
trap/pot fishermen in the Atlantic for an additional six months, from 
October 5, 2008 to April 5, 2009. Additionally, the proposed rule would 
delete the ``neutrally buoyant line'' term from the regulations to 
avoid any potential confusion with the requirements and assist 
enforcement efforts.

DATES: Comments on the proposed rule must be received by 5 p.m. EST on 
July 7, 2008.

ADDRESSES: Comments may be submitted on this proposed rule, identified 
by RIN 0648-AW84, by any one of the following methods:
    (1) Electronic Submissions: Submit all electronic public comments 
via the Federal eRulemaking Portal http://www.regulations.gov.
    (2) Mail: Mary Colligan, Assistant Regional Administrator for 
Protected Resources, NMFS, Northeast Region, 1 Blackburn Dr., 
Gloucester, MA 01930, ATTN: ALWTRP Proposed Rule.
    (3) Facsimile (fax) to: 978-281-9394, Attn: Diane Borggaard
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments. Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Copies of the Regulatory Impact Review related to this action can 
be obtained from the ALWTRP website listed under the Electronic Access 
portion of this document or writing Diane Borggaard, NMFS, Northeast 
Region, 1 Blackburn Dr., Gloucester, MA 01930. For additional ADDRESSES 
and web sites for document availability see SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast 
Region, 978-281-9300 Ext. 6503; or Kristy Long, NMFS, Office of 
Protected Resources, 301-713-2322.

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.noaa.gov/whaletrp/. The complete text of the 
regulations implementing the ALWTRP can be found either in the Code of 
Federal Regulations (CFR) at 50 CFR 229.32 or downloaded from the 
website, along with a guide to the regulations.

Background

    In response to the continued serious injury and mortality of large 
whales from entanglement in commercial fishing gear, NMFS determined 
that additional modifications to the ALWTRP were warranted. 
Subsequently, in October 2007, NMFS finalized an amendment to the 
ALWTRP which implemented a broad-based gear modification strategy that 
included additional regulated fisheries; expanded weak link and sinking 
groundline requirements; additional gear marking requirements; changes 
in boundaries; seasonal restrictions for gear modifications; expanded 
exempted areas; and regulatory language changes for the purposes of 
clarification and consistency (72 FR 57104, October 5, 2007; 73 FR 
19171, April 9, 2008). Most modifications became effective November 5, 
2007, and April 5, 2008, except for one broad-based requirement

[[Page 32279]]

which becomes effective October 5, 2008.
    Based on the availability of the sinking groundline and time needed 
to re-rig gear, NMFS built into the final rule a one-year phase-in 
period to afford trap/pot and gillnet fishermen adequate time to 
convert their gear. Specifically, the regulations require sinking and/
or neutrally buoyant line on groundlines on a year-round or seasonal 
basis depending on the temporal and spatial distribution of large 
whales one year after publication of the final rule (except in the Cape 
Cod Bay Restricted Area and Seasonal Area Management (SAM) Areas). 
Because the final rule was published on October 5, 2007, the sinking 
groundline provision becomes effective on October 5, 2008.

Proposed Measures

    In the time since the publication of the October 5, 2007 final 
rule, NMFS has monitored the availability of the sinking groundline and 
progress of the commercial trap/pot fisheries in converting to sinking 
groundlines. Based on its findings, NMFS has determined that additional 
time to convert to sinking groundline is warranted. This proposed rule 
would provide an additional six months (through April 5, 2009) for 
trap/pot fishermen along the Atlantic east coast to comply with this 
major requirement.
    The proposed action is warranted given the confusion that has 
occurred regarding which trap/pot fishermen are impacted by the ALWTRP 
and what type of groundline line is required. As far as trap/pot 
fisheries, the ALWTRP has regulated only American lobster since it was 
first implemented in 1997, and many trap/pot fisheries are being 
regulated for the first time through the October ALWTRP amendment. 
These new trap/pot fisheries include, but are not limited to, crab 
(red, Jonah, rock, and blue), hagfish, finfish (black sea bass, scup, 
tautog, cod, haddock, pollock, redfish (ocean perch), and white hake), 
conch/whelk, and shrimp.
    The delay of the broad-based sinking groundline requirement would 
occur partially during a time of year when most trap/pot gear is out of 
the water while fishermen traditionally repair and replace gear. The 
delay will also enable fishermen to purchase the appropriate sinking 
line and rectify any confusion they may have regarding sinking line. 
All other ALWTRP amendments would be effective, including the sinking 
groundline requirement for gillnet fisheries. The requirements for 
sinking groundline for lobster trap/pot fisheries in Cape Cod Bay, 
Dynamic Area Management (DAM) zones (now no longer in effect), and SAM 
area have facilitated the conversion to sinking groundline. Floating 
groundline gear buyback programs in Maine, Massachusetts, New York and 
the mid-Atlantic have also facilitated the conversion to sinking 
groundline for trap/pot fisheries, but primarily for lobster trap/pot. 
This proposed action will eliminate the confusion in the trap/pot 
industry as to which fisheries are impacted and what type of line is 
required to assist all Atlantic trap/pot fishermen in fully converting 
to sinking groundline when much of the gear is out of the water. As a 
result, trap/pot fishermen would be able to convert their gear over an 
extended period of time to help ensure gear availability and avoid any 
potential spike in demand for sinking line, which if it materialized, 
might temporarily outstrip the capacity of cordage manufacturers, drive 
up prices, and impair fishermen's ability to comply.
    The impact on large whales from this delay would be minimal given 
that: (1) the majority of the conservation measures included in the 
amendment to the ALWTRP would already be in place; (2) special right 
whale management areas have already converted to sinking groundline as 
described above; (3) most trap/pot gear is out of the water during a 
portion of the time period before the broad-based sinking groundline 
requirements go into effect; (4) the primary seasonal distribution of 
large whales in the Northeast occurs before the proposed effective date 
(Pace and Merrick 2008, NMFS 2007) (where the majority of confusion has 
been reported to have occurred); and (5) gear buyback programs from 
Maine to North Carolina that have assisted in the conversion of sinking 
groundline for lobster trap/pot fisheries have already removed a large 
amount of sinking groundline from the ocean.
    In addition to the proposal to extend the implementation of the 
broad-based gear requirements, this proposed rule would delete the 
``neutrally buoyant line'' term and definition from the regulations, so 
that only the ``sinking line'' term and definition would remain. In the 
October 5, 2007 final rule, NMFS included both the terms ``sinking'' 
and ``neutrally buoyant'' line, with identical definitions for each, in 
an attempt to include familiar industry terms and assist in the 
understanding of the regulations. However, industry feedback since the 
final rule published indicates that using two terms has led to 
confusion and resulted in some fishermen not understanding what type of 
line is required for the groundline. Additionally, trap/pot fishermen 
have inquired about the definition of low profile groundline (a line 
that does not sink, but loops some distance above the ocean bottom 
lower than floating line), and have asked NMFS for clarification on 
whether neutrally buoyant line is the same as low profile line. 
Therefore, in order to ensure clarity regarding the groundline 
requirement, this proposed action would remove all references to the 
term ``neutrally buoyant line'' from the regulations to facilitate both 
industry understanding of the regulations and enforcement efforts of 
this requirement. The term would be removed for both buoy line and 
groundline requirements and for both gillnet and trap/pot fisheries. 
Accordingly, the ``sinking line'' definition would be modified to 
eliminate reference to ``see also neutrally buoyant line.'' NMFS 
discussed the removal of the ``neutrally buoyant line'' term with the 
Atlantic Large Whale Take Reduction Team, a NMFS advisory group 
composed of various marine resource stakeholders, at its April 2008 
meeting and this suggested ALWTRP revision was supported.

Classification

    This action is categorically excluded from the requirement to 
prepare an Environmental Assessment in accordance with sections 
6.03a.3(a) and 6.03c.3(d) of NOAA Administrative Order (NAO) 216-6. 
Specifically, this proposed action includes revisions that ``will hold 
no potential for significant environmental impacts,'' and will 
facilitate enforcement efforts. This action does not trigger the 
exceptions to categorical exclusions listed in NAO 216-6, Section 
5.05c; thus, a categorical exclusion memorandum to the file has been 
prepared.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    This proposed rule does not contain a collection of information 
requirements subject to the Paperwork Reduction Act (PRA).
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The October 5, 2007 ALWTRP final rule (72 FR 57104, October 
5, 2007; 73 FR 19171, April 9, 2008) and Final Environmental Impact 
Statement (FEIS) (August 2007) identified approximately 4,353 vessels 
that would be affected by the final rule, including 2,889 from the 
lobster trap/pot fishery. This proposed

[[Page 32280]]

action would merely delete the term ``neutrally buoyant line'' from the 
regulations, and delay the implementation of the broad based gear 
requirements for an additional 6 months. Because this action would not 
impose any new requirements, it would have no economic impact beyond 
that previously analyzed in the prior rulemaking and Final 
Environmental Impact Statement, and would not significantly reduce 
profit for affected vessels.
    NMFS has determined that this action is consistent to the maximum 
extent practicable with the approved coastal management program of the 
U.S. Atlantic coastal states. This determination was submitted for 
review by the responsible state agencies under section 307 of the 
Coastal Zone Management Act.
    This proposed rule contains policies with federalism implications 
as that term is defined in Executive Order 13132. Accordingly, the 
Assistant Secretary for Legislative and Intergovernmental Affairs will 
provide notice of the proposed action to the appropriate official(s) of 
affected state, local, and/or tribal governments.

References

    NMFS. 2007. Final Environmental Impact Statement for Amending the 
Atlantic Large Whale Take Reduction Plan: Broad-Based Gear 
Modifications. Prepared by: Industrial Economics, Inc. and NOAA's 
National Marine Fisheries Service. Northeast Region.
    Pace, Richard M. III, and Merrick, Richard. 2008. Northwest 
Atlantic Ocean Habitats Important to the Conservation of North Atlantic 
Right Whales. Northeast Fisheries Science Center Reference Document 08-
07. 32 pp.

List of Subjects 50 CFR Part 229

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

    Dated: June 2, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended as follows:

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

    1. The authority citation for 50 CFR part 229 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.
    2. In Sec.  229.2, the definition ``Neutrally buoyant line'' is 
removed. The definition of ``Sinking line'' is revised to read as 
follows:


Sec.  229.2  Definitions.

* * * * *
    Sinking line means, for both groundlines and buoy lines, line that 
has a specific gravity greater than or equal to 1.030, and, for 
groundlines only, does not float at any point in the water column.
* * * * *
    3. In Sec.  229.32, revise paragraphs (a)(4), (c)(2)(ii)(D), 
(c)(2)(ii)(E), the first sentence of paragraphs, (c)(5)(ii)(B), 
(c)(6)(ii)(B), (c)(7)(ii)(C), (c)(8)(ii)(B), (c)(9)(ii)(B), 
(d)(6)(ii)(D), (d)(7)(ii)(D), (i)(3)(i)(B)(1)(i), (i)(3)(i)(B)(2)(i), 
and the second sentence of (d)(1)(i) to read as follows:


Sec.  229.3  Atlantic large whale take reduction plan regulations.

    (a)* * *
    (4) Sinking groundline exemption. The fisheries regulated under 
this section are exempt from the requirement to have groundlines 
composed of sinking line if their groundline is at a depth equal to or 
greater than 280 fathoms (1,680 ft or 512.1 m) (as shown on NOAA charts 
13200 (Georges Bank and Nantucket Shoals, 1:400,000), 12300 (NY 
Approaches--Nantucket Shoals to Five Fathom Bank, 1:400,000), 12200 
(Cape May to Cape Hatteras, 1:419,706), 11520 (Cape Hatteras to 
Charleston, 1:432,720), 11480 (Charleston Light to Cape Canaveral, 
1:449,659) and 11460(Cape Canaveral to Key West, 1:466,940)).
* * * * *
    (c)* * *
    (2)* * *
    (ii)* * *
    (D) Buoy lines. All buoy lines must be composed of sinking line 
except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line.
    (E) Groundlines. All groundlines must be composed entirely of 
sinking line. The attachment of buoys, toggles, or other floatation 
devices to groundlines is prohibited.
* * * * *
    (5)* * *
    (ii)* * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (6) * * *
    (ii) * * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted for this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (7) * * *
    (ii) * * *
    (C) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (8) * * *
    (ii) * * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (9) * * *
    (ii) * * *
    (B) Groundlines. On or before April 5, 2009, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (d) * * *
    (1) * * *
    (i) * * * If more than one buoy is attached to a single buoy line 
or if a high flyer and a buoy are used together on a single buoy line, 
sinking line must be used between these objects.
* * * * *
    (6) * * *
    (ii) * * *
    (D) Groundlines. On or before October 5, 2008, all groundlines must 
be composed entirely of sinking line unless exempted from this 
requirement under paragraph (a)(4) of this section. * * *
* * * * *
    (7) * * *
    (ii) * * * (D) Groundlines. On or before October 5, 2008, all 
groundlines must be composed entirely of sinking line unless exempted 
from this requirement under paragraph (a)(4). * * *
* * * * *
    (i) * * *
    (3) * * *
    (i) * * *
    (B) * * *
    (1) Anchored gillnet gear--(i) Groundlines. All groundlines must be

[[Page 32281]]

made entirely of sinking line. Floating groundlines are prohibited. * * 
*
* * * * *
    (2) Trap/pot gear--(i) Groundlines. All groundlines must be made 
entirely of sinking line. Floating groundlines are prohibited. * * *
* * * * *
[FR Doc. 08-1326 Filed 6-3-08; 2:14 pm]
BILLING CODE 3510-22-S