5386 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices

SUMMARY: On October 17, 1996, the

Director of the Massachusetts Division

of Marine Fisheries submitted to NMFS

an application for a general incidental

take permit under the Endangered

Species Act (ESA) for northern right

whales incidental to commercial fishing

activities within Massachusetts’

territorial waters and a small take

authorization for the same species and

activity under the Marine Mammal

Protection Act (MMPA). For the reasons

discussed in this document, that

application has been denied.

ADDRESSES: Copies of the application,

letter, and/or Federal Register notices

mentioned in this document may be

obtained by writing to Michael Payne,

Chief, Marine Mammal Division, Office

of Protected Resources, National Marine

Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910–

2337, or by telephoning one of the

contacts listed below (see FOR FURTHER

INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead or Victoria

Cornish, NMFS (301) 713–2322.

SUPPLEMENTARY INFORMATION:

Background

On December 5, 1996 (61 FR 64500),

NMFS noted that the Commonwealth of

Massachusetts (Massachusetts) had

submitted an application under the

MMPA for a small take of northern right

whales (Eubalaena glacialis) incidental

to commercial fishing activities within

Massachusetts, territorial waters, in

particular Cape Cod Bay, during the

months of February through May. This

application was in response to an order

dated September 24, 1996, in Strahan v.

Linnon wherein the presiding District

Court judge ordering Massachusetts to

apply, under the MMPA, for a small

take of northern right whales. In its

letter, Massachusetts also requested a

general incidental take permit for the

northern right whale under either

section 7(b)(4) or section 10(a)(1)(b) of

the ESA. NMFS stated in that Federal

Register notice that while the Agency

does not consider the application to be

complete in either its discussion of the

interaction, or planned mitigation, and

while it does not plan to begin

processing the application until it is

complete and Massachusetts has

submitted its Take Reduction Plan

(TRP) for northern right whales, NMFS

was offering the public an advance

opportunity to review and comment on

the application and the issues. However,

no comments were received during the

30-day comment period.

Issues

For a discussion of the issues, please

refer to the notice of receipt of the

application (61 FR 64500, December 5,

1996).

Determination

On January 28, 1997, in a letter to

Massachusetts, NMFS determined that it

was not appropriate to consider

authorizing the State’s potential

incidental take of right whales by

commercial fishing through a permit

application process. NMFS may issue

authorizations for the incidental taking

of endangered and threatened species

under section 101(a)(5)(E) of the MMPA

upon its own initiative to fishers

operating in commercial fisheries if

negligible impact findings can be made.

NMFS may revaluate determinations

under this provision if there is a

significant change in the information

used in making the original

determinations. NMFS also reevaluates

its negligible impact determinations

after 3 years, as required by statute.

In making negligible impact

determinations, NMFS considers the

serious injury and mortality from all

commercial fishery operations. On

August 31, 1995 (60 FR 45399), NMFS

stated that it was unable to make a

negligible impact determination with

respect to impacts of commercial

fisheries on right whales. Although

Massachusetts has developed a TRP

since the August 1995 notice was

issued, NMFS has concluded that no

significant new information has been

submitted to cause the Agency to

reconsider this determination. Since

NMFS cannot make a negligible impact

determination, an incidental take

authorization under section 101(a)(5)(E)

is not appropriate.

In regard to Massachusetts’

application for an incidental take permit

under section 7(b)(4) of the ESA, NMFS

does not consider it appropriate for a

state or private party to apply for an

Incidental Take Statement under section

7(b)(4) of the ESA as this section applies

only to Federal actions. Issuance of a

section 101(a)(5)(E) permit is considered

a Federal action, however, and would be

subject to consultation. If appropriate, a

section 7 Incidental Take Statement

would be issued in association with this

consultation. Therefore, an incidental

take permit under section 10 is

determined to be unnecessary. While

NMFS has determined that the

Massachusetts application for an

incidental take under section 7 or 10 is

inappropriate, NMFS has encouraged

Massachusetts to provide information

regarding state fishing activities that

would be useful in conducting

appropriate consultations.

Accordingly, for the reasons stated

above, on January 28, 1997, NMFS

informed Massachusetts that it was

inappropriate to proceed, as requested

by Massachusetts, to process MMPA

and ESA applications.

Dated: January 30, 1997.

Patricia A. Montanio,

Acting Director, Office of Protected Resources,

National Marine Fisheries Service.

[FR Doc. 97–2794 Filed 2–4–97; 8:45 am]

BILLING CODE 3510–22–M

COMMODITY FUTURES TRADING

COMMISSION

Sunshine Act; Meeting

AGENCY HOLDING THE MEETING:

Commodity Futures Trading

Commission.

TIME AND DATE: 2:00 p.m., Monday,

February 10, 1997.

PLACE: 1155 21st St., NW., Washington,

DC, 9th Fl. Conference Room.

STATUS: Closed.

MATTERS TO BE CONSIDERED:

Adjudicatory Matters.

CONTACT PERSON FOR MORE INFORMATION:

Jean A. Webb, 202–418–5100.

Jean A. Webb,

Secretary of the Commission.

[FR Doc. 97–2987 Filed 2–3–97; 2:08 pm]

BILLING CODE 6351–01–M

Sunshine Act; Meeting

AGENCY HOLDING THE MEETING:

Commodity Futures Trading

Commission.

TIME AND DATE: 2:00 p.m., Monday,

February 3, 1997.

PLACE: 1155 21st St., NW., Washington,

DC, 9th Fl. Conference Room.

STATUS: Closed.

MATTERS TO BE CONSIDERED:

Adjudicatory Matters.

CONTACT PERSON FOR MORE INFORMATION:

Jean A. Webb, 202–418–5100.

Jean A. Webb,

Secretary of the Commission.

[FR Doc. 97–2988 Filed 2–3–97; 2:08 pm]

BILLING CODE 6351–01–M

Sunshine Act; Meeting

AGENCY HOLDING THE MEETING:

Commodity Futures Trading

Commission.

TIME AND DATE: 2:00 p.m., Monday,

February 24, 1997.