Taking of Marine Mammals Incidental to Commercial Fishing Operations: Atlantic Large Whale Take Reduction Plan Regulations

Federal Register: June 6, 2008 (Volume 73, Number 110)

Proposed Rules

Page 32278-32281

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr06jn08-29

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.

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