[Federal Register Volume 75, Number 51 (Wednesday, March 17, 2010)]
[Rules and Regulations]
[Pages 12698-12700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5701]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 080721862-91321-03]
RIN 0648-AW51


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Harbor Porpoise Take Reduction Plan Regulations

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

[[Page 12699]]


ACTION: Final rule; delay of effective date.

-----------------------------------------------------------------------

SUMMARY: Through this final rule, the National Marine Fisheries Service 
(NMFS) delays the effective date of new seasonal pinger requirements 
for the New England component of the Harbor Porpoise Take Reduction 
Plan (HPTRP). Specifically, NMFS will delay implementation of new 
seasonal pinger requirements within the Stellwagen Bank and Southern 
New England Management Areas from March 22, 2010, to September 15, 
2010.

DATES: The effective dates of the amendments to 50 CFR 229.33(a)(4) and 
50 CFR 229.33(a)(5), published February 19, 2010 (75 FR 7383), are 
delayed until September 15, 2010.

ADDRESSES: Copies of the final Environmental Assessment (EA) and 
Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/
FRFA), along with a supplemental EA, may be obtained from the HPTRP Web 
site (http://www.nero.noaa.gov/hptrp) or by writing to Amanda Johnson, 
NMFS, Northeast Region, Protected Resources Division, 55 Great Republic 
Drive, Suite 04-400, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Amanda Johnson, NMFS, Northeast 
Region, 978-282-8463, [email protected]; or Melissa Andersen, 
NMFS, Office of Protected Resources, 301-713-2322, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    In response to increased serious injury and mortality of harbor 
porpoises from entanglements in commercial gillnet fishing gear, NMFS 
determined that modifications to the HPTRP were warranted. 
Subsequently, on February 19, 2010 (75 FR 7383), NMFS finalized an 
amendment to the HPTRP that implemented a suite of additional measures 
in both New England and the Mid-Atlantic to reduce harbor porpoise 
mortality to below the current potential biological removal (PBR) 
level. For New England, the final rule expands HPTRP management areas 
and seasons in which pingers are required on gillnets to reduce harbor 
porpoise injuries and mortalities due to gillnet gear. The management 
areas and seasons correspond to areas and times of recently observed 
harbor porpoise interactions with gillnet gear, and include areas that 
were not regulated under the original HPTRP implemented on December 2, 
1998 (63 FR 66464).
    Specifically, the February 19 final rule creates two new management 
areas in New England with seasonal pinger requirements - the Stellwagen 
Bank and Southern New England Management Areas. Both areas were 
previously not managed under the HPTRP; as such, gillnet fishermen 
operating within these areas were not required to use pingers. In the 
Mid-Atlantic, the rule creates an additional management area within the 
Waters off New Jersey Management Area, and modifies the large mesh tie-
down requirement. Additional technical corrections were incorporated, 
as well as a scientific research component. According to the February 
19, 2010 final rule, the modifications to the HPTRP were to become 
effective on March 22, 2010.
    As a result of the final rule's pinger requirements, NMFS 
anticipates a potentially large volume of pinger orders resulting from 
fishermen who, in the past, have not been required to use pingers.
    Following the publication of the final rule, members of the gillnet 
industry expressed concern over the availability of pingers, and about 
the possibility that new gillnet vessels would be unable to complete 
their required NMFS pinger authorization training by the March 22, 
2010, effective date. These concerns are due to the historic lack of 
demand for pingers prior to the publication of the final rule, which 
led pinger manufacturers and gear suppliers to retain small quantities 
of pingers in stock. Consequently, the present stock level of pingers 
may be insufficient to fulfill orders for large quantities of pingers 
in time for delivery by March 22, 2010, and therefore fishermen may not 
receive or be able to properly install their pingers until after the 
March 22 effective date has passed.
    Moreover, new gillnet vessels that fish within HPTRP Management 
Areas with seasonal pinger requirements must complete pinger 
authorization training provided by NMFS prior to conducting gillnet 
activities in these areas. Due to the anticipated volume of new gillnet 
fishermen requiring pinger authorizations, fishermen may not receive 
their pinger authorization training until after the pinger requirements 
become effective.
    Thus, were the pinger requirement to go into effect on March 22, 
2010, the result may be a significant number of fishermen being out of 
compliance with the new rules, but who simultaneously are unable to 
achieve compliance due to the limited quantity of pingers from the 
manufacturers.

Delay of New Seasonal Pinger Requirements in New England

    Accordingly, NMFS is delaying, until September 15, 2010, the 
effective date of new seasonal pinger requirements within the 
Stellwagen Bank and Southern New England Management Areas (50 CFR 
229.33(a)(4) and 50 CFR 229.33(a)(5), respectively).
    Since publication of the final rule, NMFS has monitored the 
availability of pingers and progress made on the pinger authorization 
training. Based on its findings, NMFS has determined that additional 
time to purchase and incorporate pingers onto gillnet gear, and for 
gillnet vessel operators to receive the required pinger authorization 
training, is warranted. This final rule extends the effective date for 
new seasonal pinger requirements within the Stellwagen Bank and 
Southern New England Management Areas to September 15, 2010, to provide 
additional time for fishermen to comply with these conservation 
measures.
    This action is warranted given the lack of availability of pingers 
for purchase, the present high demand for pinger purchases, and the 
additional time needed for new gillnet vessels to complete the required 
NMFS pinger authorization training. NMFS has chosen September 15, 2010, 
as the revised effective date for the new pinger requirements to 
coincide with the first full HPTRP management season in New England 
after publication of the final rule. Therefore, after this date, 
seasonal pinger requirements will be in effect for all New England 
HPTRP management areas.
    All other HPTRP amendments will become effective on March 22, 2010, 
as described in the final rule amending the HPTRP (75 FR 7383; February 
19, 2010).

Classification

    The Regional Administrator (RA), NMFS Northeast Region, has 
determined that delaying the effective date of the new seasonal pinger 
requirements for New England gillnet fishermen is necessary to minimize 
adverse social and economic impacts, and to allow time for new 
fishermen to become compliant with the modified HPTRP regulations.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and does not contain a collection of 
information requirements subject to the Paperwork Reduction Act (PRA).
    An Environmental Assessment (EA) describing the impacts to the 
environment that would result from the implementation of the February 
19,

[[Page 12700]]

2010, final rule amending the HPTRP (75 FR 7383) was prepared. The EA 
concluded that the action to amend the HPTRP was anticipated to have no 
significant effect on the quality of the human environment. A 
supplement to the EA has been prepared for this action, describing the 
effects to the environment of delaying the new pinger requirements in 
New England. The supplement concludes that the delay does not change 
the determination of the EA.
    Pursuant to 5 U.S.C. 553(b)(B), NMFS finds good cause to waive 
prior notice and opportunity for public comment on this action as 
notice and comment would be impracticable and contrary to the public 
interest due to the time constraints in implementing this final rule 
prior to the original March 22, 2010 effective date. This final rule 
merely delays the effective date of the seasonal pinger requirements 
within two new HPTRP management areas in New England; all other new 
measures will become effective on March 22, 2010.
    Delaying the effective date of the pinger requirement for these two 
areas is necessary in order to allow manufacturers of pingers to obtain 
stock levels sufficient to meet the new demand for pingers. 
Additionally, the delay is necessary to provide affected gillnet vessel 
owners and operators sufficient time to come into compliance with the 
HPTRP requirements by ordering and purchasing pingers, and receiving 
NMFS pinger authorization training prior to fishing within a HPTRP 
management area in which pingers are required. Without this extension, 
many affected gillnet owners and operators would, due to the 
unavailability of pingers in the large quantities being requested, be 
out of compliance with this rule the day after it becomes effective. 
Moreover, if NMFS allowed for a notice and comment period, the 
effective date of the original February 19, 2010 rule would come into 
effect, thereby defeating the purpose of this rule to delay that 
effective date in order to allow the affected parties to come into 
compliance with the rule. For these reasons, NMFS believes it is in the 
public interest to extend the effective date of these management areas 
until the first full HPTRP management season in New England following 
the initial February 19, 2010 publication of the final rule modifying 
the HPTRP. This season begins in the fall of 2010.
    Additionally, pursuant to 5 U.S.C. 553(d)(3), NMFS finds good cause 
to waive the 30-day delay in effective date of this final rule. This 
delay is necessary because, if this rule's effectiveness were delayed 
an additional thirty days, the original effective date of the February 
19, 2010 final rule would gain effect, affected fishermen would be out 
of compliance due to the lack of pingers, and the purpose of this rule 
would be defeated.
    This final rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.
    NMFS conducted a section 7 consultation pursuant to the Endangered 
Species Act (ESA) on the final rule to amend the HPTRP, which was 
completed on November 19, 2008. The consultation concluded that the 
action would not have effects on listed species that were not 
previously considered during the informal consultation conducted on the 
initial HPTRP (concluded on November 12, 1998); as such, a consultation 
was not reinitiated. Therefore, delaying the effective date of new 
pinger requirements in New England through this final rule does not 
change this conclusion.
    This final rule does not change the determination for the February 
19, 2010, final rule (75 FR 7383) that the HPTRP will be implemented in 
a manner that is consistent to the maximum extent practicable with the 
approved coastal zone management programs of the U.S. Atlantic coastal 
states.
    This final rule does not contain policies with federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 13132.

    Dated: March 10, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-5701 Filed 3-16-10; 8:45 am]
BILLING CODE 3510-22-S