[Federal Register Volume 72, Number 205 (Wednesday, October 24, 2007)]
[Rules and Regulations]
[Pages 60280-60282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5247]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 071011590-7610-02]
RIN 0648-XD38
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: Notification of rescission of temporary rule and reopening of
DAM zone to normal fishing operations.
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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA,
announces the rescission of temporary restrictions consistent with the
requirements of the Atlantic Large Whale Take Reduction Plan's (ALWTRP)
implementing regulations. These regulations applied to lobster trap/pot
and anchored gillnet fishermen in an area totaling approximately 841
nm\2\ (2,885 km\2\), southeast of Machias, Maine, for 15 days. The
purpose of this action is to provide notice that an October 17, 2007
survey indicated that North Atlantic right whales (right whales) are no
longer present in the Dynamic Area Management (DAM) zone; therefore,
NMFS has rescinded the temporary restrictions on lobster trap/pot and
anchored gillnet fishing gear and reopened the DAM zone to normal
fishing operations.
DATES: The DAM zone and associated gear restrictions are removed
effective October 19, 2007.
ADDRESSES: Copies of the proposed and final Dynamic Area Management
(DAM) 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
[[Page 60281]]
Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA
01930.
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast
Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected
Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Electronic Access
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.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) due to incidental interaction with commercial fishing
activities. In addition, the measures identified in the ALWTRP would
provide conservation benefits to a fourth species (minke), which are
neither listed as endangered nor threatened under the Endangered
Species Act (ESA). 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 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 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 October 5, 2007, an aerial survey reported an aggregation of
three right whales in the proximity of 44[deg] 15' N latitude and
67[deg] 11' W longitude. The position lies approximately 30nm south of
Machias, Maine. After conducting an investigation, NMFS ascertained
that the report came from a qualified individual and determined that
the report was reliable. Thus, NMFS had 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 prohibited lobster trap/pot and anchored gillnet gear in this area
during the 15-day restricted period unless it was modified in the
manner described in the temporary rule (72 FR 59035).
The DAM Zone is bound by the following coordinates:
44[deg] 35' N., 67[deg] 33' W (NW Corner)
44[deg] 35' N., 67[deg] 01' W and follow the EEZ south to
43[deg] 56' N., 67[deg] 22' W
43[deg] 56' N., 67[deg] 41' W
44[deg] 32' N., 67[deg] 41' W and follow the coastline north to
44[deg] 35' N., 67[deg] 33' W (NW Corner)
The restrictions were to be in effect from 0001 hours October 20,
2007, through November 3, 2007, unless terminated sooner or extended by
NMFS through another modification in the Federal Register. The
restrictions were announced to state officials, fishermen, ALWTRT
members, and other interested parties through e-mail, phone contact,
NOAA website, and other appropriate media immediately upon issuance of
the rule by the AA.
A subsequent survey of the full DAM zone occurred on October 17,
2007, and indicated that right whales have left the designated DAM zone
triggered on October 5, 2007. Based on this information and pursuant to
the authority found at 50 CFR 229.32(g)(3)(vi), NMFS has rescinded the
restrictions on lobster trap/pot and anchored gillnet fishing gear that
were to become effective on October 20, 2007. Pursuant to these
regulations, lobster trap/pot and anchored gillnet fishing may continue
in the area effective October 19, 2007. The rescission of restrictions
will be announced to state officials, fishermen, ALWTRT members, and
other interested parties through e-mail, phone contact, NOAA website,
and other appropriate media immediately upon issuance of the rule by
the AA.
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.
Environmental Assessments for the DAM program were prepared on
December 28, 2001, and August 6, 2003. This action falls within the
scope of the analyses of these EAs, which are available from the agency
upon request.
The AA finds that it would be impracticable and contrary to the
public interest to provide prior notice and an opportunity for public
comment on this action. To meet the goals of the DAM program, the
agency needs to be able to reopen a DAM zone and rescind restrictions
on fishing gear as soon as possible once NMFS determines that right
whales are no longer in the area. The regulations establishing the DAM
program are designed to enable the agency to help protect unusual and
unexpected foraging concentrations of right whales. On the other hand,
if subsequent surveys indicate that the animals are no longer foraging
in that area, the agency needs to be able to reopen the DAM zone as
soon as possible to allow fishing operations to resume in that location
because right
[[Page 60282]]
whales are no longer at risk in that particular DAM zone. If NMFS were
to provide prior notice and an opportunity for public comment upon the
reopening of a DAM restricted zone, the fishermen would continue to
endure unnecessarily adverse economic impacts because right whales the
DAM zone was implemented to protect had moved on to another location,
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 reopen a DAM restricted
zone to commercial lobster trap/pot and anchored gillnet gear.
For the same reasons, the AA finds good cause to waive the 30-day
delay in effectiveness for action. If NMFS were to delay for 30 days
the effective date of this action, the anchored gillnet and lobster
trap/pot fishermen affected by the DAM zone would be required to comply
with restrictions even though subsequent surveys of the area indicated
that right whales have moved to another location, thereby rendering the
action obsolete and unnecessary for reducing the risk of entanglement
of endangered right whales in that area. NMFS recognizes the need for
fishermen to resume normal fishing operations in a DAM zone once
subsequent surveys or other credible evidence incidates that right
whales have left the vicinity. Thus, NMFS makes this action effective
on the date of filing of this notice 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 and March 2003, the Assistant Secretary for
Intergovernmental and Legislative Affairs, Department of Commerce,
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: October 18, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries service.
[FR Doc. 07-5247 Filed 10-19-07; 2:20 pm]
BILLING CODE 3510-22-S