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Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 27, 2002 (Volume 67, Number 59)]
[Proposed Rules]
[Page 14690-14694]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27mr02-21]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 001128334-2048-07; I.D. 021202A]
RIN 0648-AN88
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: NMFS is proposing to amend 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. The intent of
this proposed rule is to prohibit 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. NMFS is also announcing the availability of an
Environmental Assessment (EA) and a Regulatory Impact Review (RIR).
DATES: Comments on the proposed prohibition of the straight set of
gillnets must be postmarked or transmitted via facsimile by 5 p.m.
Eastern Standard Time, on May 28, 2002. Comments transmitted via e-mail
will not be accepted.
ADDRESSES: Send comments on this proposed rule to the Chief, Protected
Resources Division, NMFS, 9721 Executive Center Drive North, St.
Petersburg, FL 33702-2432.
Atlantic Large Whale Take Reduction Team (ALWTRT) meeting
summaries, progress reports on implementation of the ALWTRP, and a
table of the changes to the ALWTRP may be obtained by writing to Diane
Borggaard, NMFS/Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930
or Katie Moore, NMFS/Southeast Region, 9721 Executive Center Dr., St.
Petersburg, FL 33702-2432.
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.
SUPPLEMENTARY INFORMATION:
Electronic Access
Copies of the EA and RIR can be obtained from the ALWTRP Web site:
http://www.nero.nmfs.gov/whaletrp/. 
Background
The ALWTRP was developed pursuant to the Marine Mammal Protection
Act (MMPA) to reduce the level of serious injury and mortality of
whales by Atlantic lobster trap and gillnet fisheries. The background
for the take reduction planning process and development of the ALWTRP
is set out in the preamble to the proposed (62 FR 16519, April 7,
1997), interim final (62 FR 39157, July 22, 1997), final (64 FR 7529,
February 16, 1999), interim final (65 FR 80368, December 21, 2000),
interim final (67 FR 1142, January 9, 2002), final (67 FR 1133, January
9, 2002), and final (67 FR 1300, January 10, 2002) rules implementing
the ALWTRP. Copies of these documents and supporting EAs are available
from the contacts noted in the ADDRESSES section of this proposed rule.
NMFS issued four biological opinions (BOs) on the multispecies,
spiny dogfish, monkfish, and lobster fisheries on June 14, 2001, in
accordance with section 7 of the Endangered Species Act (ESA). The BOs
concluded that all four of the fisheries jeopardized the continued
existence of the western North Atlantic right whale. The reasonable and
prudent alternative (RPA) in the June 14, 2001, BOs included additional
gear modifications for the northeast lobster trap fisheries and new
gear modifications for the mid-Atlantic and southeast gillnet fisheries
that are necessary to avoid jeopardizing the continued existence of
western North Atlantic right whales. Southeast gillnet gear
restrictions identified in this proposed rule address the RPA in an
effort to reduce potential entanglements of western North Atlantic
right whales.
Take Reduction Planning Activities in 2000 and 2001
Pursuant to section 118 (f)(7)(E) and (F) of the MMPA, NMFS has
reconvened the ALWTRT periodically to monitor progress of the ALWTRP
and to make recommendations for improvements. During the February 2000
meeting, the ALWTRT split into sub-groups covering the northeast, mid-
Atlantic, and southeast areas. The recommendations of the northeast
sub-group were addressed by the December 2000 interim final rule. The
mid-Atlantic and southeast sub-groups met on August 25, 2000, and July
24, 2000, respectively, and provided meeting summaries with
recommendations to the entire ALWTRT for review.
The ALWTRT met as a whole on June 27 and 28, 2001, to review the
elements of the RPA required by the four BOs and recommend measures
that would not only satisfy the requirements of the ESA and the four
BOs, but would also satisfy the requirements of the MMPA. The MMPA
provides the goals of reducing takes in commercial fishing operations
to below the potential biological removal (PBR) level within 6 months
of the ALWTRP's implementation and the achievement of a zero mortality
rate within 5 years of ALWTRP implementation. For western North
Atlantic right whales, these two goals are essentially the same since
the PBR level is defined as zero. Consequently, the ALWTRT concurred
that additional entanglement risk reduction is needed to comply with
the MMPA.
NMFS published a proposed rule on October 1, 2001 (66 FR 49896),
and final rule on January 10, 2002 (67 FR 1300), to amend the ALWTRP
per the RPA and the Atlantic Large Whale Take Reduction Team's
recommendations. The rule included provisions such as requiring weak
links, temporal anchoring, and line diameter restrictions. The proposed
rule also included provisions addressing the straight set of gillnets
in the Southeast U.S. Restricted Area at night. Though NMFS prepared a
thorough analysis of the straight set provision to include in the
proposed rule's EA, NMFS accidentally left out the analysis in the EA.
In order to ensure that the public had sufficient information to review
and analyze the straight set provision in the proposed rule, NMFS
removed the
[[Page 14691]]
straight set provision from the January 10, 2002, final rule. NMFS is
issuing this proposed rule to provide the public adequate time to
review and comment on the measure and the EA. The EA and RIR regarding
the straight set provision are now available for public review, and
NMFS is seeking public comments.
Changes Proposed for the ALWTRP for Gillnet Gear
Regulatory measures discussed by the southeast sub-group included
applying northeast gear marking requirements to the southeast area and
a restriction on gear deployment methods for non-shark gillnets during
the western North Atlantic right whale calving season. The October 1,
2001, proposed rule discussed NMFS' decision to leave the existing gear
marking requirement in place for the Southeast U.S. Restricted Area.
Additional gillnet restrictions discussed but not adopted by the sub-
group included time-area management, net modifications (e.g., weak
links), and seasonal restrictions. In the development of the proposed
rule, NMFS excluded these preliminary alternatives and several others
from detailed analysis, because the alternatives were not considered to
be within the scope of the action, technically feasible, or recommended
by the ALWTRT.
The gillnet restriction recommended by the southeast sub-group was
the prohibition of straight sets of gillnets at night from November 15
through March 31, annually, in the Southeast U.S. Restricted Area,
(i.e., unless the exemption under 50 CFR 229.32 (f)(3)(iii), which
relates to shark gillnets, applies). 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, Georgia) 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).
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 U.S. Restricted Area, which
includes a nursery area for mothers and calves. Right whales generally
occur in this area from November 15 through March 31. A prohibition
during that time-area of the gear types with which the right whale is
known to have become entangled would afford additional protection to
the concentrations of western North Atlantic right whales. NMFS
believes that 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, and thus the fisher would be on-site in the possible
event of an entanglement. 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 the proposed rule, NMFS aims to reduce the potential
for the entanglement of western North Atlantic right whales in straight
set gillnet gear. Due to the gear restrictions, the proposed rule will
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 shark gillnet fishery is regulated using these
boundaries (50 CFR 229.32 (f)(1)).
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Classification
This proposed 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 proposed 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 proposed
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 restrictions on shark gillnet fishing.
The objective of the proposed rule is to eliminate serious injuries
or mortalities of western North Atlantic right whales attributable to
entanglements with fishing gear and incorporates the time and area
during which right whale calves are born.
Available data do not demonstrate that the fishing behavior or
methodology restricted by the proposed rule is utilized to a great
extent in the restricted area. Virtually all recorded gillnet harvests
from this area and season are attributed to runaround gillnets and not
straight set gillnets. Less than $133 per year of gross revenues in
total can potentially be attributed to the use of straight set
gillnets. Further, data on average trip times, soak times, and vessel
characteristics indicate that the fishery is primarily prosecuted as a
day fishery. 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 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 operations would be 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 respective
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
the proposed rule. Less than $500, or $133 per year, of reported
landings from all participants over the 1997-2000 fishing seasons is
potentially attributable to straight set gillnets. Participation ranged
from 41 to 62 vessels during this period, for an average of less than
$4 per vessel. Whether spread over multiple participants or attributed
to a single vessel, it is clear that restricting the use of this gear
will not significantly reduce profits for a substantial number of small
entities. On this basis, the proposed rule may be adjudged not to have
a significant economic impact on a substantial number of small
entities.
Accordingly, an initial regulatory flexibility analysis was not
prepared. Copies of the RIR are available (see ADDRESSES).
This proposed rule has been determined not to be significant for
the purposes of Executive Order 12866.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries and Marine mammals.
Dated: March 19, 2002.
Rebecca Lent
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, the National Marine
Fisheries Service proposes to amend 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: 16 U.S.C. 1371 et seq.
2. 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 229.32(f)(4).
* * * * *
3. 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
[[Page 14694]]
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. 02-7129 Filed 3-26-02; 8:45 am]
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