[Federal Register Volume 67, Number 81 (Friday, April 26, 2002)]
[Rules and Regulations]
[Pages 20699-20701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10227]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 020419092-2092-01 ; I.D. 041802E]
RIN 0648-AP97
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.
[[Page 20700]]
ACTION: Temporary area and gear restrictions.
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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 fishing gear in an area totaling approximately 1,100 square
nautical miles (nm2) (2,038.5 km2) in April and 1,700 nm2 (3,150 km2)
in May off Cape Ann, MA for 15 days. The purpose of this action is to
provide immediate protection to an aggregation of North Atlantic right
whales (right whales).
DATES: The area and gear restrictions are effective beginning April 29,
2002 through May 13, 2002.
ADDRESSES: Send comments on this document to Diane Borggaard, NMFS/
Northeast Region, One Blackburn Drive, Gloucester, MA 01930. Copies of
the proposed and final Dynamic Area Management (DAM) 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 at the address above.
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, 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
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 North Atlantic right whales (right whales) where the
animals congregate to feed. The regulations found at Sec. 229.32(g)(3)
allow NMFS to: (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 3 or more right whales sighted within an area
(75nm2 (139 km2)) such that right whale density is equal to or greater
than 0.04 right whales per nm2 (1.85 km2). 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 based upon which a DAM zone would be
triggered.
On April 14, 2002, NMFS received a reliable report from a NMFS
aerial survey team of 8 right whales, in the proximity of 42 deg. 31' N
lat and 70 deg. 00.6' W long. This position lies approximately 30
nautical miles east of Cape Ann, Massachusetts in an area called
Wildcat Knoll.
Once a DAM zone is triggered, NMFS will determine whether to
impose, in the zone, restrictions on fishing and/or fishing gear. 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, until April 30, 2002, restricts lobster trap
and gillnet gear set in the waters bounded by:
42 deg. 54'N , 70 deg. 30'W (NW Corner)
42 deg. 54'N, 69 deg. 30'W
42 deg. 30'N, 69 deg. 30'W
42 deg. 30'N, 70 deg. 15'W
42 deg. 12'N, 70 deg. 15'W
42 deg. 12'N, 70 deg. 30'W (SW Corner).
This DAM zone excludes areas of overlap within the Seasonal Area
Management (SAM) West area. Additionally, the DAM abuts but does not
overlap with the northen boundary of the Cape Cod Bay Critical Habitat
Area. The restrictions for the DAM zone are as follows: All anchored
gillnet and lobster trap gear must be removed from these waters within
2 days of publication of this notice in the Federal Register, and no
new gear may be set in this area during the restricted period. On May
1, 2002, due to the termination of gear restrictions within the SAM
West area, the DAM zone and restrictions will be expanded to include
the waters bounded by the following coordinates:
42 deg. 54'N , 70 deg. 30'W (NW Corner)
42 deg. 54'N, 69 deg. 30'W
42 deg. 12'N, 69 deg. 30'W
42 deg. 12'N, 70 deg. 30'W (SW Corner).
The restrictions within the expanded 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 in this area during the restricted
period. The restrictions will remain in effect through May 13, 2002,
unless terminated sooner or extended by NMFS, through another
notification in the Federal Register. This restriction 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 for Fisheries, NOAA (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 NEPA is not required.
The AA finds that 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
[[Page 20701]]
the criteria are triggered and NMFS determines that a DAM restricted
zone is appropriate. The criteria were triggered with respect to this
rule on April 14, 2002. If NMFS were to provide notice and an
opportunity for public comment prior to the creation of a DAM
restricted zone, the right whales would most likely move on to another
location before NMFS could implement the restrictions designed to
protect them, thereby rendering the action obsolete. 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 and contrary to the public
interest.
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 right
whales would likely move to another location between the time NMFS
approved the action creating the DAM restricted zone and the time that
it went into effect, thereby rendering the action ineffective at
reducing the risk of entanglement of endangered right whales.
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 2 days after the date of publication of
this document in the Federal Register. 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, Department of Commerce, 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 (SEE ADDRESSES).
This rule has been determined to be not significant under EO 12866.
Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3).
Dated: April 19, 2002.
Rebecca J. Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 02-10227 Filed 4-22-02; 4:55 pm]
BILLING CODE 3510-22-S