00-29923. Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations; Remove and Reserve Gear Marking Requirements for Northeast U.S. Fisheries

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule removes and reserves the northeast U.S. fisheries gear marking requirements implementing the Atlantic Large Whale Take Reduction Plan (ALWTRP). These requirements were suspended until November 1, 2000. It was the agency’s intent to extend that suspension indefinitely until a modified gear marking program is implemented. Because of a delay in preparing an extension of the suspension, these gear marking requirements inadvertently went into effect. The intent of this action is to remove the existing requirements.

DATES:

Effective November 21, 2000.

FOR FURTHER INFORMATION CONTACT:

Douglas Beach, NMFS, Northeast Region, 978-281-9254; or Patricia Lawson, NMFS, Office of Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

On February 16, 1999, NMFS published a final rule (64 FR 7529) implementing the ALWTRP. Among other measures, the final rule required gear marking in all fisheries covered by the ALWTRP by April 1, 1999.

The Atlantic Large Whale Take Reduction Team (ALWTRT) met on February 8-10, 1999, discussed the gear marking program in detail, found that the plan would not meet ALWTRT and NMFS goals and recommended by consensus that NMFS suspend the implementation of the gear marking requirement until November 1, 1999, or until a better system was designed. On April 9, 1999 (64 FR 17292), NMFS issued a final rule that suspended the gear marking program until November 1, 1999. On December 30, 1999 (64 FR 73434), NMFS extended the suspension until November 1, 2000. Because of a delay in preparing an extension of this suspension, these gear marking requirements went into effect. It was not the intent of the agency for this to happen. A new gear marking program will be implemented by an interim final rule currently in preparation. In order to spare fishermen the expense of having to adhere for a short period of time to gear marking requirements that will be modified in the near future, NMFS is removing and reserving these requirements. The other provisions of this final rule implementing the ALWTRP, including the gear marking requirements for the Southeast U.S. fisheries covered by the ALWTRP, remain in effect.

Classification

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared a Supplemental Environmental Assessment (EA) for the final rule (64 FR 73434) extending the suspension of the effective dates of the gear marking requirements and found that action not to have a significant environmental impact. Since this final rule addresses an action previously analyzed in an EA, it is categorically excluded from further environmental review under section 5.05b of NOAA Administrative Order 216-6.

A biological opinion (BO) on the ALWTRP was completed on July 15, 1997. That BO concluded that implementation of the ALWTRP and continued operation of fisheries conducted under the American Lobster and Northeast Multispecies Fishery Management Plans (FMPs), and southeastern shark gillnet component of the Shark FMP, may adversely affect, but were not likely to jeopardize the continued existence of, any listed species of large whale or sea turtle under NMFS jurisdiction. NMFS conducted an informal consultation and made the determination that the April 9, 1999, final rule (64 FR 17292), did not change the basis for that BO. Therefore, NMFS also found this action does not change the basis for that BO.

Removing the ALWTRP gear marking requirement for northeast U.S. fisheries will have no adverse impacts on marine mammals. (EA, 1999) In addition, this final rule does not affect the determination that the ALWTRP will be implemented in a manner that is consistent to the maximum extent practicable with the approved coastal management programs of the Atlantic states.

The Assistant Administrator for Fisheries Noaa, (AA), for good cause, finds, under 5 U.S.C. 553(b)(B), that delaying this final rule to allow for prior notice and an opportunity for public comment would be contrary to the public interest. It would not be fair to subject fishermen to the expense of having to comply with gear marking requirements that do not meet the goals of the ALWTRP in which the agency intends to replace in the immediate near future with a new gear marking program. For the same reason, the AA finds, for good cause under 5 U.S.C. 553(d)(3) that delaying the effectiveness of this final rule for 30 days would be contrary to the public interest. Furthermore, since this final rule relieves a restriction, under 5 U.S.C. 553(d)(1) it is not subject to a 30-day delay in effective date.

Because publishing a general notice of proposed rulemaking is not required for this action by 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable.

This final rule removes a collection-of-information requirement previously approved by OMB (OMB control number: 0648-0364).

List of Subjects in 50 CFR Part 229

Administrative practice and procedure, Confidential business information, Fisheries, Marine Mammals, Reporting and record-keeping requirements.

Dated: November 16, 2000.

W.T. Hogarth,

Deputy Assistant Administrator, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR Part 229 is amended 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. 1361 et seq.

§ 229.32

[Amended]

2. In § 229.32, paragraphs (b), (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii), (d)(3)(ii), (d)(4)(ii), and (d)(5)(ii) are removed and reserved.