2010-5701. Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations

AGENCY:

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

ACTION:

Final rule; delay of effective date.

SUMMARY:

Through this final rule, the National Marine Fisheries Service (NMFS) delays the effective date of new seasonal pinger requirements for the New England component of the Harbor Porpoise Take Reduction Plan (HPTRP). Specifically, NMFS will delay implementation of new seasonal pinger requirements within the Stellwagen Bank and Southern New England Management Areas from March 22, 2010, to September 15, 2010.

DATES:

The effective dates of the amendments to 50 CFR 229.33(a)(4) and 50 CFR 229.33(a)(5), published February 19, 2010 (75 FR 7383), are delayed until September 15, 2010.

ADDRESSES:

Copies of the final Environmental Assessment (EA) and Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA), along with a supplemental EA, may be obtained from the HPTRP Web site (http://www.nero.noaa.gov/​hptrp) or by writing to Amanda Johnson, NMFS, Northeast Region, Protected Resources Division, 55 Great Republic Drive, Suite 04-400, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:

Amanda Johnson, NMFS, Northeast Region, 978-282-8463, [e-mail]; or Melissa Andersen, NMFS, Office of Protected Resources, 301-713-2322, [e-mail].

SUPPLEMENTARY INFORMATION:

Background

In response to increased serious injury and mortality of harbor porpoises from entanglements in commercial gillnet fishing gear, NMFS determined that modifications to the HPTRP were warranted. Subsequently, on February 19, 2010 (75 FR 7383), NMFS finalized an amendment to the HPTRP that implemented a suite of additional measures in both New England and the Mid-Atlantic to reduce harbor porpoise mortality to below the current potential biological removal (PBR) level. For New England, the final rule expands HPTRP management areas and seasons in which pingers are required on gillnets to reduce harbor porpoise injuries and mortalities due to gillnet gear. The management areas and seasons correspond to areas and times of recently observed harbor porpoise interactions with gillnet gear, and include areas that were not regulated under the original HPTRP implemented on December 2, 1998 (63 FR 66464).

Specifically, the February 19 final rule creates two new management areas in New England with seasonal pinger requirements - the Stellwagen Bank and Southern New England Management Areas. Both areas were previously not managed under the HPTRP; as such, gillnet fishermen operating within these areas were not required to use pingers. In the Mid-Atlantic, the rule creates an additional management area within the Waters off New Jersey Management Area, and modifies the large mesh tie-down requirement. Additional technical corrections were incorporated, as well as a scientific research component. According to the February 19, 2010 final rule, the modifications to the HPTRP were to become effective on March 22, 2010.

As a result of the final rule's pinger requirements, NMFS anticipates a potentially large volume of pinger orders resulting from fishermen who, in the past, have not been required to use pingers.

Following the publication of the final rule, members of the gillnet industry expressed concern over the availability of pingers, and about the possibility that new gillnet vessels would be unable to complete their required NMFS pinger authorization training by the March 22, 2010, effective date. These concerns are due to the historic lack of demand for pingers prior to the publication of the final rule, which led pinger manufacturers and gear suppliers to retain small quantities of pingers in stock. Consequently, the present stock level of pingers may be insufficient to fulfill orders for large quantities of pingers in time for delivery by March 22, 2010, and therefore fishermen may not receive or be able to properly install their pingers until after the March 22 effective date has passed.

Moreover, new gillnet vessels that fish within HPTRP Management Areas with seasonal pinger requirements must complete pinger authorization training provided by NMFS prior to conducting gillnet activities in these areas. Due to the anticipated volume of new gillnet fishermen requiring pinger authorizations, fishermen may not receive their pinger authorization training until after the pinger requirements become effective.

Thus, were the pinger requirement to go into effect on March 22, 2010, the result may be a significant number of fishermen being out of compliance with the new rules, but who simultaneously are unable to achieve compliance due to the limited quantity of pingers from the manufacturers.

Delay of New Seasonal Pinger Requirements in New England

Accordingly, NMFS is delaying, until September 15, 2010, the effective date of new seasonal pinger requirements within the Stellwagen Bank and Southern New England Management Areas (50 CFR 229.33(a)(4) and 50 CFR 229.33(a)(5), respectively).

Since publication of the final rule, NMFS has monitored the availability of pingers and progress made on the pinger authorization training. Based on its findings, NMFS has determined that additional time to purchase and incorporate pingers onto gillnet gear, and for gillnet vessel operators to receive the required pinger authorization training, is warranted. This final rule extends the effective date for new seasonal pinger requirements within the Stellwagen Bank and Southern New England Management Areas to September 15, 2010, to provide additional time for fishermen to comply with these conservation measures.

This action is warranted given the lack of availability of pingers for purchase, the present high demand for pinger purchases, and the additional time needed for new gillnet vessels to complete the required NMFS pinger authorization training. NMFS has chosen September 15, 2010, as the revised effective date for the new pinger requirements to coincide with the first full HPTRP management season in New England after publication of the final rule. Therefore, after this date, seasonal pinger requirements will be in effect for all New England HPTRP management areas.

All other HPTRP amendments will become effective on March 22, 2010, as described in the final rule amending the HPTRP (75 FR 7383; February 19, 2010).

Classification

The Regional Administrator (RA), NMFS Northeast Region, has determined that delaying the effective date of the new seasonal pinger requirements for New England gillnet fishermen is necessary to minimize adverse social and economic impacts, and to allow time for new fishermen to become compliant with the modified HPTRP regulations.

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and does not contain a collection of information requirements subject to the Paperwork Reduction Act (PRA).

An Environmental Assessment (EA) describing the impacts to the environment that would result from the implementation of the February 19, 2010, final rule amending the HPTRP (75 FR 7383) was prepared. The EA concluded that the action to amend the HPTRP was anticipated to have no significant effect on the quality of the human environment. A supplement to the EA has been prepared for this action, describing the effects to the environment of delaying the new pinger requirements in New England. The supplement concludes that the delay does not change the determination of the EA.

Pursuant to 5 U.S.C. 553(b)(B), NMFS finds good cause to waive prior notice and opportunity for public comment on this action as notice and comment would be impracticable and contrary to the public interest due to the time constraints in implementing this final rule prior to the original March 22, 2010 effective date. This final rule merely delays the effective date of the seasonal pinger requirements within two new HPTRP management areas in New England; all other new measures will become effective on March 22, 2010.

Delaying the effective date of the pinger requirement for these two areas is necessary in order to allow manufacturers of pingers to obtain stock levels sufficient to meet the new demand for pingers. Additionally, the delay is necessary to provide affected gillnet vessel owners and operators sufficient time to come into compliance with the HPTRP requirements by ordering and purchasing pingers, and receiving NMFS pinger authorization training prior to fishing within a HPTRP management area in which pingers are required. Without this extension, many affected gillnet owners and operators would, due to the unavailability of pingers in the large quantities being requested, be out of compliance with this rule the day after it becomes effective. Moreover, if NMFS allowed for a notice and comment period, the effective date of the original February 19, 2010 rule would come into effect, thereby defeating the purpose of this rule to delay that effective date in order to allow the affected parties to come into compliance with the rule. For these reasons, NMFS believes it is in the public interest to extend the effective date of these management areas until the first full HPTRP management season in New England following the initial February 19, 2010 publication of the final rule modifying the HPTRP. This season begins in the fall of 2010.

Additionally, pursuant to 5 U.S.C. 553(d)(3), NMFS finds good cause to waive the 30-day delay in effective date of this final rule. This delay is necessary because, if this rule's effectiveness were delayed an additional thirty days, the original effective date of the February 19, 2010 final rule would gain effect, affected fishermen would be out of compliance due to the lack of pingers, and the purpose of this rule would be defeated.

This final rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

NMFS conducted a section 7 consultation pursuant to the Endangered Species Act (ESA) on the final rule to amend the HPTRP, which was completed on November 19, 2008. The consultation concluded that the action would not have effects on listed species that were not previously considered during the informal consultation conducted on the initial HPTRP (concluded on November 12, 1998); as such, a consultation was not reinitiated. Therefore, delaying the effective date of new pinger requirements in New England through this final rule does not change this conclusion.

This final rule does not change the determination for the February 19, 2010, final rule (75 FR 7383) that the HPTRP will be implemented in a manner that is consistent to the maximum extent practicable with the approved coastal zone management programs of the U.S. Atlantic coastal states.

This final rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

Dated: March 10, 2010.

Eric C. Schwaab,

Assistant Administrator for Fisheries, National Marine Fisheries Service.