[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71900-71901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30774]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 001128334-2292-10; I.D. 112702B]
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule.
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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA,
announces temporary restrictions consistent with the requirements of
the Atlantic Large Whale Take Reduction Plan's (ALWTRP) implementing
regulations. These restrictions apply to lobster trap and anchored
gillnet fishermen in an area totaling approximately 1,600 square
nautical miles (nm\2\) (2,965 km\2\), east of Portsmouth, NH, called
Jeffreys Ledge, for 15 days. The purpose of this action is to provide
immediate protection to an aggregation of North Atlantic right whales
(right whales).
DATES: Effective beginning at 0001 hours December 5, 2002, through 2400
hours December 20, 2002.
ADDRESSES: Copies of the proposed and final Dynamic Area Management
rules, Environmental Assessment (EA), Atlantic Large Whale Take
Reduction Team (ALWTRT) meeting summaries, and progress reports on
implementation of the ALWTRP may also be obtained by writing Diane
Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA
01930.
Several of the background documents for the ALWTRP and the take
reduction planning process can be downloaded from the ALWTRP web site
at http://www.nero.nmfs.gov/whaletrp/.
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast
Region, 978-281-9145; or Patricia Lawson, NMFS, Office of Protected
Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION: The ALWTRP was developed pursuant to section
118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental
mortality and serious injury of four species of whales (right whales,
fin, humpback, and minke) due to incidental interaction with commercial
fishing activities. The ALWTRP, implemented through regulations
codified at 50 CFR 229.32, relies on a combination of fishing gear
modifications and time/area closures to reduce the risk of whales
becoming entangled in commercial fishing gear (and potentially
suffering serious injury or mortality as a result).
On January 9, 2002, NMFS published the final rule to implement the
ALWTRP's Dynamic Area Management (DAM) program (67 FR 1133). The DAM
program provides specific authority for NMFS to temporarily restrict
the use of lobster trap and anchored gillnet fishing gear in areas
north of 40[deg]N. lat. on an expedited basis to protect right whales.
Under the DAM program, NMFS may: (1) require the removal of all lobster
trap and anchored gillnet fishing gear for a 15-day period; (2) allow
lobster trap and anchored gillnet fishing within a DAM zone with gear
modifications determined by NMFS to sufficiently reduce the risk of
entanglement; or (3) issue an alert to fishermen requesting the
voluntary removal of all lobster trap and anchored gillnet gear for a
15-day period, and asking fishermen not to set any additional gear in
the DAM zone during the 15-day period.
A DAM zone is triggered when NMFS receives a reliable report from a
qualified individual of three or more right whales sighted within an
area (75nm\2\ (139 km\2\)) such that right whale density is equal to or
greater than 0.04 right whales per nm\2\ (1.85 km\2\). A qualified
individual is an individual ascertained by NMFS to be reasonably able,
through training or experience, to identify a right whale. Such
individuals include, but are not limited to, NMFS staff, U.S. Coast
Guard and Navy personnel trained in whale identification, scientific
research survey personnel, whale watch operators and naturalists, and
mariners trained in whale species identification through
disentanglement training or some other training program deemed adequate
by NMFS. A reliable report would be a credible right whale sighting.
On November 20, 2002, NMFS Aerial Survey Team reported a sighting
of 8 right whales in the proximity of 43[deg] 00' N lat. and 70[deg]
08' W long. This position lies east of Portsmouth, NH, in an area
called Jeffreys Ledge.
Once a DAM zone is triggered, NMFS determines whether to impose
restrictions on fishing and/or fishing gear in the zone. This
determination is based on the following factors, including but not
limited to: the location of the DAM zone with respect to other fishery
closure areas, weather conditions as they relate to the safety of human
life at sea, the type and amount of gear already present in the area,
and a review of recent right whale entanglement and mortality data.
NMFS has reviewed the factors and management options noted above
and, through this action, restricts lobster trap and gillnet gear set
in the waters bounded by:
43[deg]19'N, 70[deg]35'W (NW Corner)
43[deg]19'N, 69[deg]40'W
42[deg]39'N, 69[deg]40''W
42[deg]39'N, 70[deg]35'W (SW Corner)
Please note that the western DAM boundary (70[deg]35'W) from
43[deg]11'N due north to 43[deg]19'N will follow the coastline.
[[Page 71901]]
The restrictions for the DAM zone are as follows: All anchored
gillnet and lobster trap gear must be removed from these waters and no
new gear may be set during the 15-day restricted period. The
restrictions will be in effect beginning at 0001 hours December 5,
2002, through 2400 hours December 20, 2002, unless terminated sooner or
extended by NMFS, through another notification in the Federal Register.
The restrictions will be announced to state officials, fishermen,
Atlantic Large Whale Take Reduction Team (ALWTRT) members, and other
interested parties through e-mail, phone contact, NOAA website, and
other appropriate media immediately upon filing with the Federal
Register.
Classification
In accordance with section 118(f)(9) of the MMPA, the Assistant
Administrator (AA) has determined that this action is necessary to
implement a take reduction plan to protect North Atlantic right whales.
This action falls within the scope of alternatives and impacts
analyzed in the Final EA prepared for the ALWTRP's DAM program. Further
analysis under the National Environmental Policy Act (NEPA) is not
required.
Providing prior notice and an opportunity for public comment on
this action would prevent NMFS from executing its functions to protect
and reduce serious injury and mortality of endangered right whales. To
meet the goals of the DAM program, the agency needs to be able to
create a DAM zone and implement restrictions on fishing gear as soon as
possible once the criteria are triggered and NMFS determines that a DAM
restricted zone is appropriate. The criteria were triggered with
respect to this temporary rule on November 20, 2002. If NMFS were to
provide notice and an opportunity for public comment prior to the
creation of a DAM restricted zone, the aggregated right whales would be
vulnerable to entanglement which could result in serious injury and
mortality. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that
good cause exists to waive notice and an opportunity to comment on this
action to implement a DAM restricted zone to reduce the risk of
entanglement of endangered right whales in commercial lobster trap and
anchored gillnet gear as such procedures would be impracticable.
For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3),
good cause exists to waive the 30-day delay in effective date. If NMFS
were to delay for 30 days the effective date of this action, the
aggregated right whales would be vulnerable to entanglement which could
result in serious injury and mortality. Nevertheless, NMFS recognizes
the need for fishermen to have time to remove their gear from a DAM
zone once one is approved. Thus, NMFS makes this action effective
beginning at 0001 hours December 5, 2002, through 2400 hours December
20, 2002. NMFS will also endeavor to provide notice of this action to
fishermen through other means as soon as possible.
NMFS determined that the regulations establishing the DAM program
and actions such as this one taken pursuant to those regulations are
consistent to the maximum extent practicable with the enforceable
policies of the approved coastal management program of the U.S.
Atlantic coastal states. This determination was submitted for review by
the responsible state agencies under section 307 of the Coastal Zone
Management Act. Following state review of the regulations creating the
DAM program, no state disagreed with NMFS' conclusion that the DAM
program is consistent to the maximum extent practicable with the
enforceable policies of the approved coastal management program for
that state.
The DAM program under which NMFS is taking this action contains
policies with federalism implications warranting preparation of a
federalism assessment under Executive Order 13132. Accordingly, in
October 2001, the Assistant Secretary for Intergovernmental and
Legislative Affairs, DOC, provided notice of the DAM program to the
appropriate elected officials in states to be affected by actions taken
pursuant to the DAM program. Federalism issues raised by state
officials were addressed in the final rule implementing the DAM
program. A copy of the federalism Summary Impact Statement for that
final rule is available upon request (ADDRESSES).
This rule has been determined to be not significant under Executive
Order 12866.
Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3)
Dated: November 29, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory ProgramsNational Marine
Fisheries Service.
[FR Doc. 02-30774 Filed 11-29-02; 2:54 pm]
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