[Federal Register Volume 65, Number 209 (Friday, October 27, 2000)]
[Proposed Rules]
[Pages 64415-64417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27696]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001011283-0283-01; I.D. 082200C]
RIN 0648-AO30


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Harbor Porpoise Take Reduction Plan Regulations; Change to 
the List of Exempted Waters and Request for Comments

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

ACTION:  Notice of proposed rulemaking.

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SUMMARY: NMFS proposes to amend the Harbor Porpoise Take Reduction Plan 
(HPTRP) to include Delaware Bay, landward of the 72 COLREGS line 
(International Regulations for Preventing Collisions at Sea, 1972), in 
the list of exempted waters. Members of the Mid-Atlantic Harbor 
Porpoise Take Reduction Team (MATRT) recommended by consensus that NMFS 
redefine the list of exempted waters because harbor porpoise stranding 
and observer data did not justify subjecting fishers in Delaware Bay to 
the HPTRP gear restrictions. This proposed rule would exempt fishers 
operating in Delaware Bay from the HPTRP regulation. NMFS also requests 
comments on a recommendation from the MATRT to change the definition of 
small mesh gillnet.

DATES: Comments must be received at the appropriate address (see 
ADDRESSES) by November 27, 2000.

ADDRESSES: Comments on this proposed rule should be sent to Chief, 
Marine Mammal Division, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:  Gregg LaMontagne, NMFS, Northeast 
Region, 978-281-9291; Diane Borggaard, NMFS, Southeast Region, 727-570-
5312; or Emily Hanson, NMFS Office of Protected Resources, 301-713-
2322, ext. 101.

SUPPLEMENTARY INFORMATION: On December 2, 1998, NMFS published a final 
rule (63 FR 66464) implementing the HPTRP. Among other measures, the 
final rule identified those waters that are exempt from the HPTRP (50 
CFR 229.34).
    Section 118(f)(9) of the Marine Mammal Protection Act (MMPA) allows 
NMFS to issue regulations to implement a take reduction plan or 
amendments to a take reduction plan that, among other things, restricts 
fishing by time or area. In addition, NMFS' regulations implementing 
the HPTRP allow the Assistant Administrator for Fisheries, NOAA to 
revise the requirements of the plan through notification published in 
the Federal Register if NMFS determines that the boundary of a closed 
area is not appropriate.
    The MATRT met on January 13 and 14, 2000, in Alexandria, Virginia. 
The MATRT recommended by consensus that the line defining the exempted 
waters of Delaware Bay be moved seaward from the published position of 
39 deg. 16.70'N 75 deg. 14.6'W TO 39 deg. 11.25'N 75 deg. 23.90'W 
(southern point of Nantuxent Cove, NJ to the southern end of Kelly 
Island, Port Mahon, DE) and be redefined as a line from Cape May Canal 
to the Lewes Ferry Terminal. The MATRT concluded that there was no 
compelling reason for the existing position of the line in Delaware 
Bay, compared to other large bays in the Mid-Atlantic region (e.g., 
Chesapeake Bay and Long Island Sound), which typically establish the 
exempted waters as landward of the mouth of an inlet or the 72 COLREGS 
line. The MATRT believed that the existing line imposed unnecessary 
requirements on the Delaware Bay fishing community because harbor 
porpoise stranding data and observer data did not justify imposing 
HPTRP gear restrictions on the fishers in Delaware Bay.
    This proposed rule would redefine exempted waters for Delaware Bay 
to include all marine and tidal waters landward of the 72 COLREGS 
demarcation line, as depicted or noted on nautical charts published by 
NOAA (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80. 
Using the COLREGS line is a slight deviation from the MATRT's consensus 
recommendation. The 72 COLREGS line was selected instead of the line 
recommended by the MATRT because the 72 COLREGS line is a well known 
and widely published line of demarcation. The actual difference between 
the COLREGS line and the MATRT recommended line is a seaward shift of 
approximately 1 nautical mile.
    NMFS used observer data and harbor porpoise stranding data for 
Delaware and New Jersey to analyze the MATRT's consensus 
recommendation. Sea sampling observer data from inside the Delaware Bay 
for 1995 (23 observed hauls) and 1999 (12 observed hauls) were 
analyzed. During these 35 observed hauls no harbor porpoise 
interactions occurred. There has been 1 documented take of a harbor 
porpoise in a shad gillnet as explained in the Environmental Assessment 
prepared on November 24, 1998. Additional information was provided by a 
letter dated March 3, 2000, from the New Jersey Division of Fish and 
Wildlife, which stated that during 11 years of netting and tagging shad 
and striped bass in Delaware Bay there were no harbor porpoise 
interactions or sightings.
    Stranding data from 1992-1999 revealed a total of 21 stranded 
harbor porpoise, with 17 stranded on the Delaware side of Delaware Bay 
and four stranded on the New Jersey side of Delaware Bay. The four New 
Jersey strandings exhibited no evidence of fishery interactions, 
although the animals were either emaciated or the cause of death could 
not be determined. Six of the 17 Delaware strandings displayed evidence 
of fishery interactions. The majority of the strandings occurred in the 
Lewes and Broadkill Beach areas near the mouth of Delaware Bay, 
suggesting that the strandings may have occurred as a result of 
interaction with dogfish and monkfish fishing activities outside of 
Delaware Bay, with the animals

[[Page 64416]]

stranding inside the Bay after drifting with prevailing ocean currents 
or tides.
     Based on the analysis of observer and stranding data, no increase 
in harbor porpoise mortality is expected to occur as a result of moving 
the line delineating exempted waters seaward, and, therefore, NMFS 
concurs with the MATRT recommendation to include Delaware Bay in the 
exempted waters of the Mid-Atlantic component of the HPTRP.
    NMFS also requests comments on the consensus recommendation of the 
MATRT to change the definition of small mesh gillnet. As defined in 50 
CFR 229.2, small mesh gillnet is defined to mean a gillnet constructed 
with a mesh size of greater than 5 inches (12.7 cm) to less than 7 
inches (17.78cm). The MATRT recommended changing the definition of 
small mesh gillnet to mean a gillnet with a mesh size greater than 5.5 
inches (13.97 cm) to less than 7 inches (17.78 cm) to provide 
regulatory relief to fishers utilizing the 5.0-5.5 mesh size gillnets 
throughout the range of the Massachusetts (MA) portion of the HPTRP. 
The MATRT felt the bycatch data demonstrated very low harbor porpoise 
take rates for this mesh size range. However, 1999-2000 sea sampling 
observer data from the Massachusetts reports 4 takes in 4.9-5.0 inch 
mesh size gillnet (reported by vessel captain) with shad as the primary 
species sought. Given this information NMFS is particularly interested 
in comments regarding the impact of different mesh sizes on harbor 
porpoise and other marine mammals, the impact of different mesh size 
regulations on other species, including non-target fish, and the 
economic impact to the fishery.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    NMFS prepared an Environmental Assessment (EA) on the final rule 
(63 FR 231, Dec. 2, 1998) to implement the HPTRP. This proposed action 
amends the HPTRP and NMFS prepared an Environmental Assessment for this 
proposed action and found that amending the HPTRP as described in this 
proposed action will not significantly affect the quality of the human 
environment.
    The Chief Counsel for Regulation for the Department of Commerce 
certified to the Chief Counsel for Advocacy for the Small Business 
Administration that this proposed rule would not have a significant 
economic impact on a substantial number of small entities as follows:
    The proposed rule would modify the Harbor Porpoise Take 
Reduction Plan (HPTRP) to redefine exempted waters for Delaware Bay 
to be all marine and tidal waters landward of the 72 COLREGS 
demarcation line.
    This proposed action would relieve restrictions on fishers 
operating in Delaware Bay. At their most recent meeting, the Mid-
Atlantic Harbor Porpoise Take Reduction Team (MATRT) concluded that 
harbor porpoise stranding and observer data did not justify imposing 
HPTRP gear restrictions on fishers operating in Delaware Bay. The 
MATRT recommended by consensus that the line defining the exempted 
waters of Delaware Bay be moved seaward. Based on NMFS' analysis of 
stranding and observer data, no increase in harbor porpoise 
mortality is expected to occur as a result of moving the line, and 
therefore we propose to implement the MATRT's consensus 
recommendation.
    The economic impacts of the proposed change is expected to be 
positive because it is lifting regulations on fishers operating in 
Delaware Bay. State fisheries management personnel report that many 
of the gillnet fisheries operating in Delaware Bay that would 
benefit from the proposed change are conducted on vessels less than 
50 feet in length. These fisheries are typically seasonal, operate 
from local wharfs, and are not participants in federally managed 
fisheries. All of the gillnet vessels analyzed in the Final 
Regulatory Flexibility Analysis (RFA) prepared on November 24, 1998, 
for the HPTRP qualified as small entities based on a threshold of $3 
million in gross annual sales. The RFA estimated that 176 vessels 
would be impacted by the regulations, either through area closures 
or gear modifications.
    New Jersey estimates that 28 fishermen qualified for the 2000 
fishing year limited entry directed shad fishery inside Delaware 
Bay, and some of these fishers may be using small gillnet that is 
currently regulated by the HPTRP. In 1998, Delaware issued 115 
commercial gillnet permits in 1998 and it is reasonable to expect 
that some of these permit holders operate inside Delaware Bay for 
some portion of the year and use gear subject to the HPTRP. This 
proposed action would reduce the regulatory burden on those fishers 
operating in Delaware Bay and using gillnet regulated by the HPTRP.
    This proposed rule is not likely to adversely affect endangered or 
threatened species.
    This proposed rule does not change the determination that the HPTRP 
will be implemented in a manner that is consistent to the maximum 
extent practicable with the approved coastal management programs of the 
Atlantic states.
    This proposed rule does not contain policies with federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 12612.
    This proposed rule is promulgated in compliance with all procedural 
requirements established by the Administrative Procedure Act.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: October 22, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended as follows:

[[Page 64417]]

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.1361 et seq.

    2. In Sec. 229.34, paragraph (a)(2) is revised to read as follows:


Sec. 229.34  Harbor Porpoise Take Reduction Plan-Mid-Atlantic.

    (a)***
    (2) Exempted waters. All waters landward of the first bridge over 
any embayment, harbor, or inlet will be exempted. The regulations in 
this section do not apply to waters landward of the following lines:

New York

    40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 
45.30' W (Moriches Bay Inlet)
    40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 
18.56' W (Fire Island Inlet)
    40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 
35.22' W (Jones Inlet)

New Jersey/Delaware

    39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg. 
06.20' W (Barnegat Inlet)
    39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg. 
19.75' W (Beach Haven to Brigantine Inlet)
    38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg. 
51.90' W (Cape May Inlet)
    All marine and tidal waters landward of the 72 COLREGS demarcation 
line (International Regulations for Preventing Collisions at Sea, 
1972), as depicted or noted on nautical charts published by NOAA (Coast 
Charts 1:80,000 scale), and as described in 33 CFR part 80. (Delaware 
Bay)

Maryland/Virginia

    38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 
05.25' W (Ocean City Inlet)
    37 deg. 52.' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' 
W (Chincoteague to Ship Shoal Inlet)
    37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 
49.60' W (Little Inlet)
    37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.' 
W (Smith Island Inlet)

North Carolina

    All marine and tidal waters landward of the 72 COLREGS demarcation 
line (International Regulations for Preventing Collisions at Sea, 
1972), as depicted or noted on nautical charts published by NOAA (Coast 
Charts 1:80,000 scale), and as described in 33 CFR part 80.
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[FR Doc. 00-27696 Filed 10-26-00; 8:45 am]
BILLING CODE: 3510-22 -S