Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Proposed Rules 64415

comments and any additional

information received by the date

specified above. All previous comments

and information submitted during the

comment period need not be

resubmitted. The comment period is

extended to November 24, 2000. Written

comments may be submitted to the

Field Supervisor at the above address. The Endangered Species Act requires

that at least one public hearing be held

on this proposed rule if requested.

Given the interest this proposal has

generated, we have already held 10

public hearings throughout the

proposed critical habitat range.

However, significant public interest in

the proposal has led us to schedule

another public hearing (see DATES and

ADDRESSES).

Author

The primary author of this notice is

Steve Spangle, U.S. Fish and Wildlife

Service, P.O. Box 1306, Albuquerque,

New Mexico 87103.

Authority: The authority for this action is

the Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.).

Geoffrey L. Haskett,

Regional Director, Region 2, Fish and Wildlife

Service.

[FR Doc. 00–27628 Filed 10–26–00; 8:45 am]

BILLING CODE 4310–55–U

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.

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° 16.70’N 75° 14.6’W TO 39° 11.25’N

75° 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 MidAtlantic 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

64416 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Proposed Rules

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 MidAtlantic 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:

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Proposed Rules 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 § 229.34, paragraph (a)(2) is

revised to read as follows:

§ 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° 45.70’ N 72° 45.15’ W TO 40°

45.72’ N 72° 45.30’ W (Moriches Bay

Inlet)

40° 37.32’ N 73° 18.40’ W TO 40°

38.00’ N 73° 18.56’ W (Fire Island Inlet)

40° 34.40’ N 73° 34.55’ W TO 40°

35.08’ N 73° 35.22’ W (Jones Inlet)

New Jersey/Delaware

39° 45.90’ N 74° 05.90’ W TO 39°

45.15’ N 74° 06.20’ W (Barnegat Inlet)

39° 30.70’ N 74° 16.70’ W TO 39°

26.30’ N 74° 19.75’ W (Beach Haven to

Brigantine Inlet)

38° 56.20’ N 74° 51.70’ W TO 38°

56.20’ N 74° 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° 19.48’ N 75° 05.10’ W TO 38°

19.35’ N 75° 05.25’ W (Ocean City Inlet)

37° 52.’ N 75° 24.30’ W TO 37° 11.90’

N 75° 48.30’ W (Chincoteague to Ship

Shoal Inlet)

37° 11.10’ N 75° 49.30’ W TO 37°

10.65’ N 75° 49.60’ W (Little Inlet)

37° 07.00’ N 75° 53.75’ W TO 37°

05.30’ N 75° 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.

* * * * *

[FR Doc. 00–27696 Filed 10–26–00; 8:45 am]

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