[Federal Register Volume 67, Number 184 (Monday, September 23, 2002)]
[Rules and Regulations]
[Pages 59471-59477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24155]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 020819200-2200-01; I.D. 021202A]
RIN 0648-AP93
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.
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SUMMARY: The NMFS is amending the regulations that implement the
Atlantic Large Whale Take Reduction Plan (ALWTRP), specifically with
regard to the straight set of gillnets in the southeast U.S. restricted
area in waters off the coasts of Georgia and Florida. This final rule
prohibits straight sets of gillnets at night from November 15 through
March 31, annually, to reduce the risk of entanglement of large whales,
including the western North Atlantic right whale (right whale).
DATES: This final rule is effective October 23, 2002.
ADDRESSES: Copies of the Environmental Assessment (EA), the Regulatory
Impact Review (RIR), and the Regulatory Flexibility Act (RFA) analysis
are available from Protected Resources Division, NMFS /Southeast
Region, 9721 Executive Center Drive North, St. Petersburg, FL 33702-
2432. 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 can also be obtained from the ALWTRP Web site listed under the
Electronic Access portion of this document. A copy of the most recent
Stock Assessment Report (SAR) can be obtained by writing to Richard
Merrick, 166 Water St., Woods Hole, MA 02543 or can be downloaded from
the NMFS Protected Resources Web site listed under the Electronic
Access portion of this document.
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 final rule and the
take reduction planning process can be downloaded from the ALWTRP Web
site: http://www.nero.nmfs.gov/whaletrp/. Copies of the most recent
SARs 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
This final rule implements approved modifications contained in the
ALWTRP recommended by the ALWTRT to satisfy the requirements of the
Endangered Species Act (ESA) and the Marine Mammal Protection Act
(MMPA). Details concerning the justification for and development of
this rule were provided in the preamble to the proposed rule (66 FR
14690, March 27, 2002) and are not repeated here.
The proposed rule provided a 60-day public comment period to
provide feedback to NMFS via postmarked mail or via facsimile. NMFS
also issued a press release announcing the availability of the proposed
rule and
[[Page 59472]]
summarizing its purpose and requirements. Information in the press
release was sent to more than 500 people in the southeast U.S.
including permitted fishers, state representatives, fishery management
council members, and industry representatives. The NMFS also posted the
proposed rule on the ALWTRP Web site (listed under the Electronic
Access portion of this document).
Changes Proposed for the ALWTRP for Gillnet Gear
This final rule prohibits the straight set of gillnets at night
from November 15 through March 31, annually, in the southeast U.S.
restricted area, (unless the exemption under 50 CFR 229.32(f)(3)(iii),
which relates to shark gillnets, applies). 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 North Carolina/Georgia border) in
waters south of a line extending due east of the fishery management
council demarcation line between the Atlantic Ocean and the Gulf of
Mexico (50 CFR 600.105). The southeast U.S. restricted area consists of
those waters from 27[deg]51' N. lat. (near Sebastian Inlet, FL) to
32[deg]00' N. lat. (near Savannah, GA) extending from the shore outward
to 80[deg] W long. Night means any time between one-half hour before
sunset and one-half hour after sunrise, as per the ALWTRP (50 CFR
229.2). The gillnet gear is fished as strikenets or straight sets.
Fishing with strikenet gear means a gillnet that is designed so that,
when it is deployed, it encircles or encloses an area of water either
with the net or by utilizing the shoreline to complete encirclement or
to fish with such a net and method. A straight set is the deployment of
a gillnet in a straight line, as opposed to the deployment of a gillnet
in a circular manner, for example, around a school of fish. Both
deployment types are currently fished in the proposed management area,
the southeast U.S. restricted area, which includes a nursery area for
right whale mothers and calves.
Right whales generally occur in the southeast U.S. restricted area
from around November 15 through March 31, annually. Within the time
period and geographical area in which the right whale is known to have
become entangled, a prohibition would afford additional protection to
the concentrations of right whales. NMFS believes straight set gillnets
deployed during daytime are of very minimal threat to whales. Such gear
is retrieved within about one-half hour of every set; thus, the fisher
would be on-site in the possible event of an entanglement, and could
subsequently contact the disentanglement network for action. Straight
sets at night pose a higher level of risk of entanglement to whales
than strike sets or straight sets during the day, because fishers are
not as actively involved with straight set gear (in comparison to the
strike set method used in southeast Atlantic waters), and whales are
much more difficult to spot at night due to darkness. Through this
final rule, NMFS aims to reduce the potential for the entanglement of
right whales in straight set gillnet gear. Due to the gear
restrictions, the final rule will also reduce the likelihood of effort
influx into the fishery in the future, thereby further reducing the
potential likelihood of entanglements.
Figure 1 shows the boundaries for the southeast U.S. restricted
area. Currently the Southeast U.S. shark gillnet fishery is regulated
using these boundaries (50 CFR 229.32 (f)(1)).
BILLING CODE 3510-22-S
[[Page 59473]]
[GRAPHIC] [TIFF OMITTED] TR23SE02.090
BILLING CODE 3510-22-C
[[Page 59474]]
Comments and Responses
NMFS received eight sets of written comments on the proposed rule
by the May 28, 2002, deadline. The comments were considered in
developing this final rule to amend the regulations that implement the
ALWTRP and are responded to here.
General Comments
Comment 1: Seven commenters generally supported the proposed rule
to reduce entanglement risk to right whales. Two of the seven
commenters generally believed that the proposed prohibition would
protect whales and reduce the potential for whale entanglements. One
commenter urged NMFS to expedite the publication of the final rule.
Response: By this final rule, NMFS is amending the regulations that
implement the ALWTRP to provide further protection for large whales,
with an emphasis on right whales due to their critical status. Based on
NMFS' current understanding of the right whale population and local
fisheries, NMFS believes the prohibition defined by this final rule
should reduce entanglement risk to right whales.
Comment 2: Two commenters generally believed that the regulations
were not restrictive enough. Two commenters believed NMFS needs to do
more, such as implementing a year-round ban on gillnets in all waters,
similar to what some states have implemented in the southeast United
States. One commenter supported a ban on all nets that kill both target
and non-target species. One commenter suggested that further action may
be necessary, such as a proactive, precautionary approach in order to
offer real bycatch risk reduction.
Response: Taking into account the economics of the affected
fisheries, technological feasibility, and stock status, NMFS believes
the final regulations adequately reduce the potential for right whale
entanglement due to gillnets in the southeast United States. At this
time, NMFS does not support a year-round ban on gillnets in all waters
including Federal waters to protect marine animals. Should new
scientific information indicate the necessity for additional management
measures, NMFS will reconvene also take the ALWTRT's recommendations
into consideration and conduct the necessary environmental and economic
analyses to determine the potential benefits and costs associated with
any proposed measures.
Comment 3: One commenter urged NMFS to continue working with
coastal states on marine mammal conservation.
Response: NMFS agrees with the necessity and utility of cooperating
with coastal states on marine mammal conservation, and NMFS plans to
continue its current partnerships. Some of the current efforts which
NMFS plans to continue include interagency cooperation on marine mammal
stranding issues, instituting ESA section 6 agreements with states,
entering into Memorandums of Agreement with states on conservation
issues, facilitating regional policy discussions, and participating in
the Southeast U.S. Implementation Team to implement the right whale
recovery plan.
Comment 4: One commenter emphasized the need to continue research
on Atlantic whale survival and management efforts to return the
populations to viable levels.
Response: NMFS is actively conducting and supporting research on
Atlantic whales and Atlantic fisheries' gear modifications. NMFS has
gear laboratories and research teams that specifically focus on gear
development and testing, has marine mammalogists and statisticians
conducting the science necessary to better understand Atlantic whales
and the risks associated with them, and has fishery management
specialists whose time is completely dedicated to implementing
management actions to protect and conserve Atlantic whales and provides
financial support to numerous entities involved in whale research and
gear research activities. NMFS makes its management decisions on the
best available information, and it spends a great deal of money and
resources to expand its knowledge base. NMFS will continue to expand
these programs as funding allows.
Comment 5: One commenter requested that NMFS expand the management
area southward another 60 miles to east of Jupiter Inlet or to Latitude
27[deg]0.0' to protect right whales and other marine species such as
leatherback turtles and sharks.
Response: Given the results of a recent data analysis, NMFS
believes this final rule should include only those waters designated by
the existing southeast U.S. restricted area in order to protect right
whales from potential entanglement due to straight sets of gillnets.
NMFS believes the most important winter/calving areas known are within
the latitudinal boundaries identified in the existing ALWTRP rule (50
CFR 229.32), although northern right whales are occasionally sighted
outside this area. NMFS, with the assistance of the Florida Fish and
Wildlife Conservation Commission's Florida Marine Research Institute
(FMRI), conducted an analysis of aerial survey data to determine the
frequency of right whale sightings, as a measure of the likelihood of
right whale presence in the expanded management area recommended by the
commenter. The analysis reviewed the aerial survey tracks flown by FMRI
over the waters bounded by 27[deg]51.0'N. to 27[deg]0.0'N., from
Florida's Eastern coastline to 80[deg] W. The analysis consisted of 127
days between February 14, 1992, and March 31, 2001, though several days
had limited search effort in the area. During the 127 days, there were
six right whale sighting events, totaling 11 individuals. NMFS does not
believe that the number of animals sighted over the 10-year period
warrants the requested area expansion to waters south of 27[deg]51.0'N.
Public feedback on right whale sightings is important to the agency,
and the agency will take public sightings into consideration along with
aerial survey data as it periodically reviews critical habitat and the
southeast U.S. restricted area boundaries.
NMFS has the authority to regulate U.S. waters for ESA listed
species such as leatherback turtles; however, NMFS does not believe at
this point in time that an expansion of the gillnet restriction area,
as defined by this final rule, is warranted for leatherback turtles or
sharks. Furthermore, this would be an inappropriate rationale for
action on a rule implementing take reduction provisions under the MMPA.
Comment 6: Based on economic effects, one commenter objected to the
definition of ``night'' used in the proposed rule. ``Night'' is defined
as any time between one-half hour before sunset and one-half hour after
sunrise, as per the ALWTRP (50 CFR 229.2). Instead of the proposed
rule's definition, the commenter requested that NMFS define ``night''
as any time between one-half hour after sunset and one-half hour before
sunrise. The commenter stated that fishers rely on the low light
conditions to catch a substantial amount of fish. The commenter
believed that the fishery's temporal feature has not had an adequate
economic analysis.
Response: The commenter suggests a change in the definition of
night which would result in two extra hours of permitted fishing each
day (as compared to the proposed rule) in which straight sets of
gillnets in the Southeast Atlantic gillnet fishery would be legal. NMFS
believes the change in the definition of night for this measure is not
warranted on an economic impact basis.
Available data do not demonstrate that the fishing behavior or
methodology restricted by this final rule (straight set gillnets at
night) is utilized
[[Page 59475]]
to a great extent in the restricted area. Data on average trip times,
landings, soak times, and vessel characteristics indicate that the
fishery is primarily prosecuted as a day fishery generating less than
$167 per year of gross revenues. Taking into account the number of
vessels participating in the straight set gillnet fishery (from 41 to
62), vessels average less than $4 income annually, indicating that the
fishery is likely of lowly economic profitability to the fleet as a
whole. Virtually all recorded gillnet harvests from this area and
season are attributed to runaround gillnets and not straight set
gillnets. Whether spread over multiple participants or attributed to a
single vessel, NMFS believes restricting the use of this gear during
the times defined as ``night'' will not significantly reduce profits
for fishery participants. Therefore, any direct economic impacts on the
fishery will be minimal since the fishery does not substantially
operate in the manner being restricted.
NMFS believes the current definition of ``night'' used in this
final rule takes into consideration stakeholders' economic concerns and
does not result in substantial economic impact sufficient to warrant
changing the definition of night as requested.
Comment 7: One commenter requested that NMFS reconvene the ALWTRT
and the southeast sub-group to review and re-evaluate bycatch
mitigation strategies.
Response: NMFS values the ALWTRT's input to reduce the incidental
take of large whales in commercial fisheries and believes the regional
sub-group process is an effective means of addressing regionally
specific management needs. During the early months of 2002, NMFS
implemented several management actions including Dynamic Area
Management, Seasonal Area Management, and gear modifications. NMFS
intends to reconvene the ALWTRT to discuss the effectiveness of these
measures and to determine if further measures are warranted based on
the best available information. Though NMFS has not finalized meeting
dates at this time, in order to ensure public participation in
commercial fishery management, NMFS will inform both the ALWTRT and the
general public of the logistics of future meetings of the ALWTRT.
Two comments were received after the close of the public comment
period. Since the comments reflected unique thoughts not previously
identified during the public comment period, NMFS has chosen to respond
to them.
Comment 8: One commenter suggested that NMFS consider a visibility
threshold such as ``no sets anytime when visibility is less than 400
yds'' (366 m). NMFS stated in the proposed rule that ``straight sets at
night pose a higher level of risk to entanglement to whales . . .
because whales are much more difficult to spot at night due to
darkness.'' The commenter was concerned that whales can be difficult to
spot in the dense fog which often occurs in the right whale calving
area during the winter.
Response: Taking into account technological feasibility and stock
status, NMFS believes the final regulations adequately reduce the
potential for right whale entanglement due to gillnets in the southeast
United States. At this time, NMFS does not support further restrictions
on the non-shark gillnet fishery which would only allow operation at
times where visibility is equal to or greater than 400 yds (366 m).
Should additional scientific information indicate the necessity for
additional management measures such as a visibility threshold on
gillnets similar to the shark gillnetters, NMFS will reconvene the
ALWTRT to discuss this potential management measure and others. NMFS
will take the ALWTRT's recommendations into consideration and conduct
the necessary environmental and economic analyses to fully disclose the
potential benefits and costs associated with all proposed measures.
Comment 9: One commenter suggested that NMFS better define the
subject gillnet gear's characteristics in order to differentiate the
gear from that used in the shark gillnet fishery. The commenter said
that the subject gear in the proposed rule differs from gillnet gear
used to target sharks, because the subject gear is relatively low in
tensile strength, has small sized mesh, and the deployed gear is small
in scope. One suggestion for defining the subject gillnet gear's
characteristics was to include a maximum ceiling on net length, mesh
size, and/or tensile strength in this final rule.
Response: The proposed rule uses the MMPA's LOF definition for the
Southeast Atlantic Gillnet Fishery, and NMFS believes further gear
descriptions by tensile strength, mesh size, or target species are not
necessary to clarify the proposed rule and its affected fishers.
Under the MMPA's LOF, there are two types of gillnet gear
categorized in the southeast United States: Southeast Atlantic Gillnet
and Southeastern U.S. Atlantic Shark Gillnet. NMFS currently has
restrictions on the Southeastern U.S. Atlantic Shark Gillnet Fishery
which has been defined in 50 CFR 229.32 as any gillnets which fish in
waters south of the South Carolina/Georgia border with webbing of 5
inches (12.7 cm) or greater stretched mesh.
Under the ESA, additional whale conservation measures were required
for gillnet gear which did not have adequate management restrictions in
place to reduce the likelihood of whale entanglement. Therefore,
through the proposed rule, NMFS proposed whale conservation measures
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). Through the proposed rule and the pre-
existing requirements for shark gillnetters, NMFS regulated the full
suite of gillnet users in the Atlantic south of the South Carolina/
Georgia border. Further descriptions in the subject rule to
differentiate the two fisheries beyond their current LOF definitions
may inadvertently exclude a part of the gillnet fishery population
which this regulation is attempting to address. Therefore, NMFS does
not believe that further gear descriptions are necessary. NMFS will
take this recommendation into advisement during future LOF actions to
ensure that fishery descriptions are clear.
Classification
This final rule does not include a collection-of-information
requirement subject to the Paperwork Reduction Act.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this final rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The basis for this certification follows:
The MMPA provides the statutory basis for the rule. The final rule
would prohibit the use of straight set gillnets in the southeast U.S.
restricted area at night from November 15 through March 31, annually,
unless the fishing activity was exempted under 50 CFR
229.32(f)(3)(iii), which pertains to fishing for sharks with strikenet
gear. Strikenet gear is exempt if no nets are set at night or when
visibility is less than 400 yards (460m), each set is made under the
observation of a spotter plane, if a right, humpback, fin or minke
whale
[[Page 59476]]
moves within 3 nautical miles o the set gear, the gear is removed
immediately from the water.
The objective of this final rule is to eliminate serious injuries
or mortalities of right whales attributable to entanglements with
fishing gear and takes into account the time and area during which
right whale calves are born.
Available data do not demonstrate that the fishing behavior or
methodology restricted by this final rule (straight set gillnets at
night) is utilized to a great extent in the restricted area. Data on
average trip times, landings, soak times, and vessel characteristics
indicate that the fishery is primarily prosecuted as a day fishery
generating less than $167 per year of gross revenues. Taking into
account the number of vessels participating in the straight set gillnet
fishery, vessels average less than $4 income annually, indicating that
the fishery is likely of lowly economic profitability to the fleet as a
whole. Virtually all recorded gillnet harvests from this area and
season are attributed to runaround gillnets and not straight set
gillnets. Whether spread over multiple participants or attributed to a
single vessel, the economic impacts associated with this rule will not
significantly reduce profits for a substantial number of small
entities. Therefore, any direct economic impacts on the fishery will be
minimal since the fishery does not substantially operate in the manner
being restricted.
Generally, a fish-harvesting business is considered a small
business if it is independently owned and operated, not dominant in its
field of operation, and has annual receipts not in excess of $3.5
million. One hundred and two unique entities (vessels or persons) have
reported landings in this fishery over the 1997-2000 fishing seasons.
Total dockside value of commercial harvests by these entities from all
fishing activities and all gears averaged from $16,000 to $24,000 per
year over this period. The maximum gross revenues were less than
$300,000. All of these entities are considered small business entities.
Thus, business operations in this fishery consist solely of small
business entities.
The determination of significant economic impact can be ascertained
by examining two criteria: Disproportionality and profitability. The
disproportionality question is: Do the regulations place a substantial
number of small entities at a significant competitive disadvantage to
large entities? All business entities participating in the area of the
South Atlantic Gillnet Fishery are considered small business entities.
Thus, the issue of disproportionality does not arise in the present
case.
The profitability question is: Do the regulations significantly
reduce profit for a substantial number of small entities? The
predominant harvest methodology in this fishery is runaround (i.e.,
strike) gillnets and day trips and not the methodology restricted by
this document. Less than $500, or $167 per year, of reported landings
from all participants over the 1997-2000 fishing seasons (1997-98,
1998-99, 1999-2000) is potentially attributable to straight set
gillnets. On this basis, the Assistant General Counsel for Legislation
and Regulation of the Department of Commerce certified to the Chief
Counsel for Advocacy of the Small Business Administration that this
final rule would not have a significant economic impact on a
substantial number of small entities. NMFS received only one public
comment relating to the economic impacts of this final rule. NMFS
considered this comment before it approved this final rule, and NMFS
characterized and responded to it in the ``Comments and Responses''
section of the preamble to this final rule, as comment/response number
6. No changes to this final rule were made as a result of the comment
received. NMFS believes the economic analysis adequately characterized
the impact of the proposed rule on affected fisheries and the RFA
analysis and copies of the RIR are available (see ADDRESSES).
This final rule has been determined not to be significant for the
purposes of Executive Order 12866.
NMFS requested consultation under section 7 of the ESA regarding
the proposed action. As described in the proposed rule, the proposed
action was developed to address a Reasonable and Prudent Alternative
(RPA) identified in four Biological Opinions (BOs) on the multispecies,
spiny dogfish, monkfish, and lobster fisheries on June 14, 2001. The
objective of the RPA is to eliminate mortality and serious injuries of
right whales, eliminate serious and prolonged right whale
entanglements, and significantly reduce the total number of right whale
entanglements. On February 7, 2002, NMFS concluded that since the
proposed action would implement an RPA under existing BOs, the action
did not warrant further analysis under the ESA at that time. NMFS
stated that the issuance of the proposed action does not change the
basis for the finding of the June 14, 2001, BOs; instead, the rule
directly addresses the gear restriction RPA from those findings.
NMFS requested an Essential Fish Habitat (EFH) review of the
proposed action and received a determination that the proposed gillnet
restrictions would not adversely affect EFH of species managed by the
NMFS or the South Atlantic Fishery Management Council.
NMFS has determined that the final action is consistent to the
maximum extent practicable with the coastal zone management programs of
those affected Atlantic coastal states that have approved coastal zone
management programs: Georgia and Florida. The proposed rule, RIR, RFA
analysis, and EA were submitted to the responsible state agencies for
their review under section 307 of the Coastal Zone Management Act.
Florida concurred that the proposed action is consistent to the maximum
extent practicable with their applicable CZMA regulations.
The Georgia Coastal Management Program (GCMP) objected to NMFS'
determination that the amendment to the ALWTRP is consistent to the
maximum extent practicable with the enforceable policies of the GCMP,
pursuant to 15 CFR part 930, subpart C. NMFS is required by law to rely
on the best scientific information available to develop fishery
management actions. NMFS believes a complete gillnet prohibition, as
suggested by Georgia, would be in direct conflict with several of NMFS'
statutory obligations because there is not sufficient documented
evidence at this time to justify the gillnet prohibition. Therefore,
current statutory obligations restrict NMFS' ability to be fully
consistent with the GCMP, and the proposed action remains the legally
appropriate decision at this time.
NMFS shares Georgia's concern regarding bycatch and bycatch
mortality rates in gillnet fisheries and continues to dedicate
resources to evaluate the degree to which gillnet fisheries affect
protected species. NMFS encourages Georgia and all coastal states to
submit data collected through state activities, and NMFS will continue
to work with Georgia to address the issues with gillnet fisheries in
Federal waters off the coasts of Georgia and Florida.
NMFS prepared a draft EA for the proposed action, as described in
the proposed rule. NMFS did not receive any comments on the EA during
the public comment period. The Assistant Administrator for Fisheries,
NOAA has determined, based on an EA prepared under the National
Environmental Policy Act (NEPA), that implementation of these
regulations would not have a significant impact on the human
environment. As a result of this determination, an environmental impact
[[Page 59477]]
statement is not required. A copy of the final EA prepared for this
rule is available upon request (see ADDRESSES).
Federalism Impact Statement
This final rule contains policies with federalism implications that
were sufficient to warrant preparation of a federalism summary impact
statement under Executive Order 13132. Accordingly, the Assistant
Secretary for Legislative and Intergovernmental Affairs provided notice
of the proposed action to the appropriate officials of the affected
state and local governments through a letter mailed to those officials
in April 2002. Specifically, the letter was sent to the state of
Florida and Georgia. The letter described NMFS' position supporting the
need to issue the regulation, specifically the need to reduce the risk
of entanglement of large whales, including right whales. The state and
local officials did not raise any concerns in direct response to the
April 2002 letter.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, and Marine mammals.
Dated: September 17, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory programs, national marine
Fisheries Services.
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: Authority: 16 U.S.C. 1371 et seq.
1. In Sec. 229.3, paragraph (k) is revised to read as follows:
Sec. 229.3 Prohibitions.
* * * * *
(k) It is prohibited to fish with gillnet gear in the areas and for
the times specified in Sec. 229.32(f)(1) through (f)(4), unless the
gear or the person with gillnet gear complies with the gear marking
requirements specified in Sec. 229.32(f)(2), the requirements for
observer coverage as specified in Sec. 229.32(f)(3), and the closures,
requirements, and other restrictions as specified in Sec.
229.32(f)(4).
* * * * *
4. In Sec. 229.32, the heading of paragraph (f) and paragraph
(f)(3) are revised; and paragraph (f)(4) is added to read as follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
* * * * *
(f) Restrictions applicable to the southeast U.S. restricted area
and the southeast U.S. observer area. * * *
* * * * *
(3) Observer requirement. No person may fish with shark gillnet
gear in the southeast U.S. observer area from November 15 through March
31 of the following year unless the operator of the vessel calls the SE
Regional Office in St. Petersburg, FL not less than 48 hours prior to
departing on any fishing trip in order to arrange for observer
coverage. If the Regional Office requests that an observer be taken on
board a vessel during a fishing trip at any time from November 15
through March 31 of the following year, no person may fish with shark
gillnet gear aboard that vessel in the southeast U.S. observer area
unless an observer is on board that vessel during the trip.
(4) Restricted period, closure and restrictions, and exemption. (i)
Restricted period. The restricted period for the southeast U.S.
restricted area is from November 15 through March 31 of the following
year, unless the Assistant Administrator revises this restricted period
in accordance with paragraph (g) of this section.
(ii) Closure for shark gillnet gear. Except as provided under
paragraph (f)(4)(iv) of this section, no person may fish with shark
gillnet gear in the southeast U.S. restricted area during the
restricted period.
(iii) Restrictions for straight sets. Except as provided for shark
gillnet gear under paragraph (f)(4)(iv) of this section, no person may
fish with a straight set of gillnet gear at night in the southeast U.S.
restricted area during the restricted period. A straight set is defined
as a set in which the gillnet is placed in a line in the water column,
as opposed to a circular set in which the gillnet is placed to encircle
an area in the water column.
(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, fin
or minke whale.
(D) If a right, humpback, fin or minke whale moves within 3
nautical miles of the set gear, the gear is removed immediately from
the water.
* * * * *
[FR Doc. 02-24155 Filed 9-20-02; 8:45 am]
BILLING CODE 3510-22-S