[Federal Register Volume 69, Number 41 (Tuesday, March 2, 2004)]
[Rules and Regulations]
[Pages 9760-9762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4621]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 030221039-4072-06; I.D. 022004A]
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP)
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 ALWTRP's implementing regulations. These regulations make changes
to the area for restrictions that were provided in a temporary rule
published in the Federal Register on February 25, 2004, and apply to
lobster trap/pot and anchored gillnet fishermen in an area totaling
approximately 1,896 square nautical miles (nm2) in February, and 1,580
nm\2\(5,419 km\2\) in March, east of Portsmouth, NH, for 15 days. The
purpose of this action is to provide protection to an aggregation of
North Atlantic right whales (right whales).
DATES: Effective beginning at 0001 hours March 1, 2004, through 2400
hours March 12, 2004.
ADDRESSES: Copies of the proposed and final Dynamic Area Management
rules, Environmental Assessments (EAs), 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.
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast
Region, 978-281-9328 x6503; or Kristy Long, NMFS, Office of Protected
Resources, 301-713-1401.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several of the background documents for the ALWTRP and the take
reduction
[[Page 9761]]
planning process can be downloaded from the ALWTRP web site at http://www.nero.noaa.gov/whaletrp/.
Background
The ALWTRP was developed pursuant to section 118 of the Marine
Mammal Protection Act (MMPA) to reduce the incidental mortality and
serious injury of three endangered species of whales (right, fin, and
humpback) as well as to provide conservation benefits to a fourth non-
endangered species (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). On August
26, 2003, NMFS amended the regulations by publishing a final rule,
which specifically identified gear modifications that may be allowed in
a DAM zone (68 FR 51195). The DAM program provides specific authority
for NMFS to restrict temporarily on an expedited basis the use of
lobster trap/pot and anchored gillnet fishing gear in areas north of
40[deg] N. lat. to protect right whales. Under the DAM program, NMFS
may: (1) require the removal of all lobster trap/pot and anchored
gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot
and anchored gillnet fishing within a DAM zone with gear modifications
determined by NMFS to sufficiently reduce the risk of entanglement;
and/or (3) issue an alert to fishermen requesting the voluntary removal
of all lobster trap/pot 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 (75 nm\2\ (139 km\2\)) such that right whale density is equal to
or greater than 0.04 right whales per nm2 (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 February 12, 2004, NMFS Aerial Survey Team reported a sighting
of six right whales in the proximity of 42[deg] 41.56' N lat. and
70[deg] 02.03' W long. This position lies east of Portsmouth, NH. Thus,
NMFS has received a reliable report from a qualified individual of the
requisite right whale density to trigger the DAM provisions of the
ALWTRP.
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 reviewed the factors and management options noted above
relative to the DAM under consideration. As a result of this review,
NMFS published a temporary rule on February 25, 2004 (65 FR 8570), to
prohibit lobster trap/pot and anchored gillnet gear in this area during
the 15-day restricted period unless it is modified in the manner
described in this temporary rule. The DAM zone identified in the
Federal Register on February 25, 2004, was bound by the following
coordinates:
43[deg]03'N, 70[deg]32'W (NW Corner)
43[deg]03'N, 69[deg]32'W
42[deg]20'N, 69[deg]32'W
42[deg]20'N, 70[deg]32'W
The effective dates for this DAM zone coincide with the
implementation of SAM West on March 1 and, as of that date, the
southeast corner of the DAM zone will overlap SAM West. Inadvertently,
however, the area NMFS identified as the DAM Zone did not omit SAM West
from the designated DAM zone. Therefore, pursuant to NMFS policy
concerning the relationship of DAM to other regulated waters, such as
SAM, on March 1, 2004, the boundaries of the DAM zone will change to
reflect the establishment of SAM West. Accordingly, as of March 1,
2004, the DAM zone will be bound by the following coordinates:
43[deg]03'N, 70[deg]32'W (NW Corner)
43[deg]03'N, 69[deg]32'W
42[deg]30''N, 69[deg]3'W
42[deg]30'N, 70[deg]15'W
42[deg]2'0'N, 70[deg]15'W
42[deg]20'N, 70[deg]32'W
In addition to those gear modifications currently implemented under
the ALWTRP at 50 CFR 229.32, the following gear modifications are
required in the DAM zone. If the requirements and exceptions for gear
modification in the DAM zone, as described below, differ from other
ALWTRP requirements for any overlapping areas and times, then the more
restrictive requirements will apply in the DAM zone.
Lobster Trap/Pot Gear
Fishermen utilizing lobster trap/pot gear within the portion of the
Northern Nearshore Lobster Waters, Northern Inshore State Lobster
Waters, and Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap
with the DAM zone are required to utilize all of the following gear
modifications while the DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 600 lb (272.4
kg) must be placed at all buoys.
Fishermen utilizing lobster trap/pot gear within the portion of the
Offshore Lobster Waters Area that overlap with the DAM zone are
required to utilize all of the following gear modifications while the
DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 1,500 lb (680.4
kg) must be placed at all buoys.
Anchored Gillnet Gear
Fishermen utilizing anchored gillnet gear within the portion of the
Other Northeast Gillnet Waters and Stellwagen Bank/Jeffreys Ledge
Restricted Area that overlap with the DAM zone are required to utilize
all the following gear modifications while the DAM zone is in effect:
[[Page 9762]]
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per string;
4. Each net panel must have a total of five weak links with a
maximum breaking strength of 1,100 lb (498.8 kg). Net panels are
typically 50 fathoms (91.4 m) in length, but the weak link requirements
would apply to all variations in panel size. These weak links must
include three floatline weak links. The placement of the weak links on
the floatline must be: one at the center of the net panel and one each
as close as possible to each of the bridle ends of the net panel. The
remaining two weak links must be placed in the center of each of the up
and down lines at the panel ends; and
5. All anchored gillnets, regardless of the number of net panels,
must be securely anchored with the holding power of at least a 22 lb
(10.0 kg) Danforth-style anchor at each end of the net string.
These restrictions will remain in effect as provided in the
temporary rule published February 25, 2004 until 0001 hour March 1,
2004 at which time these restrictions will become effective in the DAM
zone with the coordinates provided by this temporary rule through 2400
hours March 12, 2004, 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) for Fisheries 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 EAs prepared for the ALWTRP's DAM program.
Further analysis under the National Environmental Policy Act (NEPA) is
not required.
NMFS provided prior notice and an opportunity for public comment on
the regulations establishing the criteria and procedures for
implementing a DAM zone. Providing prior notice and opportunity for
comment on this action, pursuant to those regulations, would be
impracticable because it would prevent NMFS from executing its
functions to protect and reduce serious injury and mortality of
endangered right whales. The regulations establishing the DAM program
are designed to enable the agency to help protect unexpected
concentrations of right whales. In order 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. If NMFS were to provide prior notice and an opportunity
for public comment upon the creation of a DAM restricted zone, the
aggregated right whales would be vulnerable to entanglement which could
result in serious injury and mortality. Additionally, 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 prior 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/pot 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 cause serious injury and mortality. Additionally, right whales
would likely move to another location between the time NMFS approved
the action creating the DAM restricted zone and the time it went into
effect, thereby rendering the action obsolete and ineffective.
Nevertheless, NMFS recognizes the need for fishermen to have time to
either modify or remove (if not in compliance with the required
restrictions) their gear from a DAM zone once one is approved. Thus,
NMFS made the restrictions in the DAM zone that were provided in the
Federal Register on February 25, 2004, effective 2 days after the date
of publication of notice in the Federal Register. NMFS also provided
notice of that action to fishermen through other means as soon as the
AA approved it, thereby providing approximately 3 additional days of
notice while the Office of the Federal Register processed the document
for publication. The action in this Federal Register notice lifts
restrictions from the February 25, 2004, Federal Register notice that
would have overlapped with SAM West. Therefore, no further delay in
effective date is necessary or appropriate.
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 and March 2003, the Assistant Secretary for
Intergovernmental and Legislative Affairs, DOC, provided notice of the
DAM program and its amendments 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
rules implementing the DAM program. A copy of the federalism Summary
Impact Statement for the final rules is available upon request
(ADDRESSES).
The rule implementing the DAM program 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: February 26, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 04-4621 Filed 3-1-04; 8:45 am]
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