[Federal Register Volume 67, Number 6 (Wednesday, January 9, 2002)]
[Rules and Regulations]
[Pages 1133-1142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-272]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001128334-1312-02; I.D. 091401B]
RIN 0648-AN88


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Atlantic Large Whale Take Reduction Plan Regulations

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this final rule to amend the regulations that 
implement the Atlantic Large Whale Take Reduction Plan (ALWTRP) to 
clarify its authority to temporarily restrict the use of lobster trap 
and gillnet fishing gear within defined areas to protect North Atlantic 
right whales, and to establish criteria and procedures for implementing 
a Dynamic Area Management (DAM) program in areas north of 40o N. 
latitude, in order to further reduce risk of entanglement of right 
whales by such gear.

DATES: This final rule is effective February 8, 2002.

ADDRESSES: Copies of the Environmental Assessment (EA), its Regulatory 
Impact Review (RIR), and the

[[Page 1134]]

Final Regulatory Flexibility Analysis (FRFA), are available from the 
Protected Resources Division, NMFS, 1 Blackburn Drive, Gloucester, MA 
01930-2298. Atlantic Large Whale Take Reduction Team (ALWTRT) meeting 
summaries, progress reports on implementation of the ALWTRP, and a 
table of the changes to the ALWTRP may be obtained by writing to Diane 
Borggaard at the address above or Katherine Wang, NMFS/Southeast 
Region, 9721 Executive Center Dr., St. Petersburg, FL 33702-2432. 
Copies of the EA, including the RIR and FRFA, can be obtained from the 
ALWTRP website listed under the Electronic Access portion of this 
document.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast 
Region, 978-281-9145; Katherine Wang, NMFS, Southeast Region, 727-570-
5312; or Patricia Lawson, NMFS, Office of Protected Resources, 301-713-
2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for this final rule and the 
take reduction planning process can be downloaded from the ALWTRP web 
site at http://www.nero.nmfs.gov/whaletrp/. Copies of the most recent 
marine mammal Stock Assessment Reports may be obtained by writing to 
Richard Merrick, NMFS, 166 Water St., Woods Hole, MA 02543 or can be 
downloaded from the Internet at http://www.wh.whoi.edu/psb/sar2000.pdf. 
In addition, copies of the document entitled ``Defining Triggers for 
Temporary Area Closures to Protect Right Whales from Entanglements: 
Issues and Options'' are available by writing to Diane Borggaard, (see 
ADDRESSES) or can be downloaded from the Internet at http://www.nero.nmfs.gov/whaletrp/.

Background

    The ALWTRP was developed pursuant to section 118 of the Marine 
Mammal Protection Act (MMPA) to reduce the level of serious injury and 
mortality of four species of large whales (fin, humpback, minke, and 
North Atlantic right) in East Coast lobster trap and finfish gillnet 
fisheries. The background for the take reduction planning process and 
development of the ALWTRP is provided in the preambles to the proposed 
(62 FR 16519, April 7, 1997), the interim final (62 FR 39157, July 22, 
1997), final (64 FR 7529, February 16, 1999), and interim final (65 FR 
80368, December 21, 2000) rules implementing the ALWTRP. Copies of 
these documents and supporting Environmental Assessments are available 
from the NMFS, Northeast Region (see ADDRESSES).
    This final rule implements approved modifications to the ALWTRP 
deemed by NMFS necessary to satisfy requirements of the Endangered 
Species Act (ESA) and MMPA. Details concerning the justification for 
and development of the DAM program and the implementing regulations 
were also provided in the preamble to the proposed rule (66 FR 50160, 
October 2, 2001) and are not repeated here.

DAM Trigger Mechanism

    Areas that will be considered for DAM are limited to areas north of 
40o N latitude. A DAM zone will be triggered by a single reliable 
report from a qualified individual of 3 or more right whales within an 
area (75 nautical miles (nm2) (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.

Procedures and Criteria to Establish a DAM Zone

    NMFS will use the following procedures and criteria to establish a 
DAM zone:
    1. A circle with a radius of at least 2.8 nm (5.2 km) would be 
drawn around each individual sighting (event). This radius would be 
adjusted for the number of right whales seen in the sighting such that 
the density of 4 right whales per 100 nm2 (185.3 km2) is maintained. 
The length of the radius would be determined by taking the inverse of 
the 4 right whales per 100 nm2 (185.3 km2) density, which is 24 nm2 
(44.5 km2) per whale. This is equivalent to a radial distance of 2.8 nm 
(5.1 km) for a single right whale sighted, 3.9 nm (7.3 km) for two 
whales, 4.8 nm (8.9 km) for three whales, etc.
    2. If any circle or group of contiguous circles includes 3 or more 
right whales, this core area and its surrounding waters would be a 
candidate DAM zone.

Criteria to Determine the Extent of the DAM Zone

    Once NMFS identifies a core area containing 3 or more right whales, 
as described here, it would expand this initial core area to provide a 
buffer in which the right whales could move and still be protected. 
NMFS will determine the extent of the DAM zone as follows:
    1. A larger circular zone will be drawn to extend 15 nm (27.8 km) 
from the perimeter of a circle around each core area.
    2. The DAM zone will then be defined by a polygon drawn outside, 
but tangential to the circular buffer zone(s). The latitudinal and 
longitudinal coordinates of the corners of the polygon will then be 
identified.

Decision Factors for Implementing Restrictions in a DAM Zone

    Once a DAM zone is identified, NMFS will determine whether to 
impose, in the zone, restrictions on fishing and/or fishing gear. This 
determination would be based on a variety of 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.

Public Notification

    If NMFS determines restrictions are necessary in the zone, NMFS may 
require removal of all gillnet and lobster trap gear from the zone 
within 2 days of the publication of a notice in the Federal Register. 
At this time, NMFS does not have criteria developed that would allow 
gillnet or lobster trap gear to be fished within a DAM zone. NMFS may 
allow fishing within a DAM zone with specified gear if that gear is 
determined to sufficiently reduce the risk of entanglement to right 
whales. NMFS may identify acceptable fishing practices and gear in a 
Federal Register document. Gear not in compliance with the imposed 
restriction may not be set in the DAM zone after the effective date of 
the restriction. NMFS will publish a document in the Federal Register 
and other appropriate media announcing the establishment of the zone 
with restrictions imposed. It will also announce them immediately upon 
filing the document with the Office of the Federal Register, which is 
generally 3 to 5 days before publication of the notice in the Federal 
Register.
    If NMFS decides not to implement restrictions within a DAM zone, it 
will issue an alert to fishermen using

[[Page 1135]]

appropriate media to inform them of the fact that right whale density 
in a certain area has triggered a DAM zone. In addition, NMFS will 
provide detailed information on the location of the DAM zone and the 
number of animals sighted within it.

Duration of DAM Zones

    NMFS will maintain a DAM zone for a minimum of 15 days from the 
date NMFS issues an alert (in the case of a zone where no restrictions 
are imposed), or the 15-day period from the effective date of 
restrictions (in the case where restrictions are imposed). At the 
conclusion of a 15-day period, the DAM zone would automatically expire, 
unless whales are still sighted in the DAM zone, in which case, NMFS 
will continue the zone to further protect concentrations of right 
whales. Each extension would be for up to 15 days unless NMFS extends 
the time frame based on additional sightings.
    NMFS may remove restrictions on the DAM zone or rescind an alert 
prior to its automatic expiration if there are survey efforts and no 
confirmed sightings of right whales by qualified individuals for 1 week 
or if other credible evidence indicates that right whales have left the 
designated zone. NMFS will notify the public by issuing a notification 
in the Federal Register and through other appropriate media.

Comments and Responses

    Approximately 58 letters of comment were received during the public 
comment period on the proposed rule, which ended on November 1, 2001. A 
complete summary of the comments and NMFS' responses is provided here.
    Comment 1: Several letters were received from private individuals 
in support of NMFS' proposal to implement DAM. Most of those letters 
expressed serious concerns about the future survival of North Atlantic 
right whales. In addition, these comments encouraged NMFS to work 
closely with gillnet and lobster fishermen to protect right whales from 
future entanglements in fishing gear.
    Response: NMFS will continue to work with the ALWTRT and members of 
the fishing industry to minimize interactions between right whales and 
fishing gear. NMFS believes that DAM will reduce serious injuries and 
mortalities to right whales from entanglements by temporarily 
restricting lobster trap and gillnet fishing gear in areas where right 
whales congregate to feed. Comment 2: Several comments questioned the 
DAM trigger mechanism. Many felt that it was inappropriate to base a 
DAM zone on a single sighting by one person. In addition, the Maine 
Department of Marine Resources requested that NMFS determine a clearer 
definition of ``qualified individual.'' It was suggested that NMFS 
establish a tiered process for judging whether or not a report is 
credible and further suggested that NMFS request corroborating 
information from the individual providing the report while continuing 
to verify the initial report during the 5-to 7-day period between 
filing notice with the Federal Register and publication. Furthermore, 
there were concerns that false sightings would be reported by 
disgruntled crew or competitors identifying themselves as ``qualified 
individuals'' wishing to cause hardship on fishermen by closing down 
their fishing grounds.
    Response: NMFS anticipates that it may receive false or exaggerated 
reports of right whale sightings from people claiming to be ``qualified 
individuals.'' Therefore, NMFS intends to thoroughly investigate all 
reports for credibility and reliability. The definitions of ``qualified 
individual'' and ``reliable report'' were developed with this intent in 
mind. In addition, NMFS will require that the individual providing the 
report identify him or herself and the vessel from which the sighting 
was made. Anonymous reports will not be considered reliable and, 
therefore, cannot trigger a DAM zone. Furthermore, a document prepared 
by the Northeast Fisheries Science Center entitled, ``Defining Triggers 
for Temporary Area Closures to Protect Right Whales from Entanglements: 
Issues and Options,'' concluded that a single sighting is appropriate 
because foraging whales are at risk of entanglement whenever they are 
feeding, regardless of how quickly a food source is consumed. (Clapham 
and Pace, 2001). Therefore, to trigger a DAM zone, NMFS feels that a 
single report of right whales is an adequate trigger mechanism. Simply 
stated, as long as a single sighting can establish that the whales are 
feeding in an area, and not merely transiting through, no additional 
sightings would be necessary based on the understanding that feeding 
whales are at a greater risk of entanglement.
    Comment 3: Many commenters questioned the implementation of a DAM 
zone based on the proposed trigger of three right whales. Comments from 
lobstermen and state agencies indicated that NMFS should adopt the 
trigger of eight whales sighted twice over 2 days, which was discussed 
at the ALWTRT meeting. Commenters encouraged NMFS to explore all other 
information available to ensure that the three-whale trigger is 
appropriate for the implementation of a DAM zone.
    Response: The issue of the number of right whales that would 
trigger a DAM zone was discussed at the ALWTRT meeting. However, the 
ALWTRT did not produce any consensus recommendations on any one set of 
whale density criteria and/or triggering levels. NMFS determined that a 
trigger based on the sighting of three right whales was appropriate 
after considering the analysis of sighting data performed by the 
Northeast Fisheries Science Center. Foraging whales are assumed to be 
at risk of entanglement and DAM was designed to respond quickly to 
situations where feeding whales and fishing gear overlap in order to 
reduce the chances that a whale will get entangled. Therefore, the 
scientific research conducted on DAM sought to establish the smallest 
number of right whales that could be advanced as a reliable indicator 
that the animals were engaged in feeding behavior. The scientists 
concluded that a sighting of three or more right whales in an area was 
a reasonably good indicator that the animals were residing in an area 
to feed. (Clapham and Pace, 2001).
    Comment 4: Comments were received expressing concern about the size 
of the DAM zone. In particular, several lobstermen felt that it would 
take months to remove their gear from a DAM area of 1,000 nm or more 
and suggested that DAM areas of 10 nm would be more realistic for 
compliance by the industry. One lobsterman estimated that it would take 
12 trips, each lasting up to 10 days, to remove gear from a 1,000-nm 
DAM zone. In addition, many comments from fishermen explained that if 
all gear is removed from the DAM zone it will be reset around the 
boundary of the area, thus creating a wall around the DAM zone, which 
may create a greater risk of entanglement to right whales.
    Response: NMFS appreciates the amount of effort that may be 
required to remove gillnet and lobster trap gear from a DAM zone. The 
analysis of sighting data presented in the document ``Defining Triggers 
for Temporary Area Closures to Protect Right Whales from Entanglements: 
Issues and Options,'' found that a 15-nm buffer around the initial core 
area would enclose all of the whales sighted, irrespective of their 
movements during the course of the event. (Clapham and Pace, 2001). The 
size of the DAM zone is dependent on the number of whales that would 
trigger an event.
    Comment 5: Several comments were received that expressed concerns 
about the amount of time proposed for

[[Page 1136]]

compliance with gear restrictions within DAM zones. For example, a 
comment received from a lobsterman stated that it would be impossible 
to remove all lobster gear in the time allotted under the proposed rule 
and, furthermore, the chaos and confusion created would present a 
safety hazard.
    Response: NMFS appreciates the time, effort, and risk involved in 
hauling fishing gear and removing it from an area that has been 
designated for DAM. In order to provide fishermen with time to respond 
to the implementation of gear restrictions within a DAM zone, NMFS will 
issue a notice at the time the notice is filed with the Office of the 
Federal Register, which is usually 3 to 5 days prior to the regulation 
being published in the Federal Register. Once the decision has been 
made to remove gear from a DAM zone, NMFS will notify the commercial 
fisheries affected as quickly and comprehensively as reasonably 
possible. In addition, when a right whale sighting meets the DAM 
trigger, NMFS will issue an alert via email to all ALWTRT members and 
post the alert on the website at www.nero.nmfs.gov/whaletrp/. NMFS 
hopes that members of the ALWTRT who receive an alert will circulate 
the information to other interested parties to help insure that the 
fishermen who may have to eventually remove gear from a DAM zone have 
time to respond. Fishermen, industry representatives, environmental 
groups, and all others interested in receiving alerts and notices over 
the Internet should provide their email address to the Northeast 
Regional Office (See ADDRESSES section). NMFS will also mail letters 
providing notice to those who request it by contacting the Northeast 
Regional Office (See ADDRESSES section). In addition, NMFS will 
investigate using a news bulletin service to provide notice through the 
local press.
    Comment 6: Several comments were received that questioned the 
length of the restricted period. In particular, the Massachusetts 
Division of Marine Fisheries felt that the rule making process and the 
time required for fishermen to remove all of their gear from a DAM area 
would exceed the duration of most sighting ``events.''
    Response: NMFS intends to respond to reports of right whale 
sightings that trigger a DAM as quickly as possible in order to insure 
that restrictions are implemented in a timely fashion to maximize 
protection for the animals. See NMFS' response to the previous comment. 
NMFS believes that an initial restricted period of 15 days with the 
ability for extension is an adequate and appropriate management measure 
for protecting right whales. Research conducted by the Northeast 
Fisheries Science Center concluded that a 15-day restricted period 
represented the average mean duration of the 13 documented events that 
began with an initial sighting of three or more right whales. (Clapham 
and Pace, 2001). Therefore, based on these findings, NMFS established 
an initial restricted period of at least 15-days with additional 
extensions to the restricted period if whales continue to meet the 
trigger for DAM.
    Comment 7: A comment from an environmental group expressed concern 
with the automatic expiration of the DAM zone after 15 days and felt 
that NMFS should be required to lift restrictions, through notification 
in the Federal Register, once the whales are no longer sighted in the 
area.
    Response: NMFS intends to provide protection for concentrations of 
right whales that remain present in the area after the conclusion of 
the 15-day period, if necessary and appropriate, by extending the 
restricted period, through notification in the Federal Register. NMFS 
believes that an initial restricted period of 15 days with the ability 
for extension is an adequate and appropriate management measure for 
protecting right whales. Research conducted by the Northeast Fisheries 
Science Center concluded that a 15-day restricted period represented 
the average mean duration of the 13 documented events that began with 
an initial sighting of three or more right whales. (Clapham and Pace, 
2001). Therefore, based on these findings, NMFS established an initial 
restricted period of at least 15 days with additional extensions to the 
restricted period if whales continue to meet the trigger for DAM.
    Comment 8: Several comments were received from fishermen who felt 
it is unnecessary to implement DAM because the gear they are currently 
utilizing is already considered ``whale safe''. Lobstermen fishing in 
Cape Cod Bay with sinking and neutrally buoyant line and weak links 
felt that this gear adequately reduces the risk of serious injury or 
mortality to right whales from entanglements without NMFS requiring 
further alterations or requiring the removal of gear from the area. 
Lobstermen also expressed concerns about the economic impact of DAM on 
their business and added that changing over to neutrally buoyant and 
sinking line has already been very costly, and expressed displeasure at 
what was perceived as NMFS' apparent disregard for the efforts of the 
ALWTRT towards developing gear that can coexist with whales without 
making closures necessary. In addition, the Massachusetts Division of 
Marine Fisheries (DMF) encouraged NMFS to adopt more universal ``whale 
safe'' gear modifications instead of implementing DAM because improving 
devices, such as buoy line breakaways, eliminates the need to 
completely remove gear from an area. Conversely, several environmental 
groups commenting on this issue recommended that NMFS require the 
removal of all lobster trap and gillnet gear from the DAM zone, in 
light of the fact that NMFS and the ALWTRT can not agree on gear 
modifications that sufficiently reduce the risk of entanglement.
    Response: NMFS will continue to work with the ALWTRT to modify and 
develop fishing gear that adequately reduces the risk of entanglement 
to large whales and when such gear is deemed adequate, NMFS may allow 
it to be used for fishing within DAM zones. In addition, NMFS 
encourages fishermen to collaborate with the gear research team towards 
developing fishing gear that completely reduces the risk of 
entanglement to right whales. However, until then, the most reliable 
means for reducing the risk of entanglements to right whales within DAM 
zones is by requiring the complete removal of all lobster trap and 
gillnet fishing gear. See response to comment 18.
    Comment 9: A comment from an environmental group questioned how 
NMFS planned to enforce voluntary compliance with gear restrictions 
within DAM zones.
    Response: In the event that right whale sightings trigger a DAM 
zone, NMFS will determine whether to impose restrictions on fishing 
and/or fishing gear. This determination will be based on a variety of 
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 to 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. If NMFS determines restrictions are 
necessary in the zone, NMFS may require removal of all gillnet and 
lobster trap gear from the zone within two days of the publication of 
the notice in the Federal Register. If NMFS decides not to implement 
restrictions within the DAM zone, NMFS will follow the protocol 
developed cooperatively between NMFS and the ALWTRT for voluntary 
compliance. NMFS will issue an alert to fishermen using appropriate 
media to inform them of the fact that right whale density in a certain 
area has triggered a

[[Page 1137]]

DAM zone. In addition, NMFS will provide detailed information on the 
location of the DAM zone and the number of animals sighted within it. 
Furthermore, NMFS will request that fishermen voluntarily remove 
lobster trap and gillnet gear from the DAM zone and no additional gear 
be set inside it. NMFS believes providing this information to 
interested parties and requesting compliance with gear restrictions, 
which is in every fisherman's interest, is an appropriate means for 
maintaining communication with industry while providing protection for 
right whales.
    Comment 10: Several comments suggested that the regulation of state 
waters would be better served if left to state agencies. Specifically, 
lobstermen fishing in Cape Cod Bay felt that NMFS should follow the 
Massachusetts DMF approach to developing rules to reduce entanglements. 
Other commenters from the lobster fishing industry expressed opposition 
to Federal regulations that would supersede rules already imposed 
within state waters because of the feeling that DMF knows the state 
waters better than NMFS. In addition, a comment received from a member 
of the lobster industry encouraged NMFS to allow the State of Maine to 
assess and provide the appropriate regulations in consideration of the 
unique variability and spacial distribution between right whales and 
fishing gear off the Maine coast. The Maine Department of Marine 
Resources echoed these concerns and also believed that the state whale 
protection plans offer the greatest chance of success.
    Response: Although the MMPA provides NMFS with authority to 
regulate in State waters, states can develop equally protective or more 
protective restrictions if they choose, and NMFS encourages such 
action. Further, NMFS has cooperative agreements in place with a number 
of Atlantic states, which enable states to enforce requirements of the 
MMPA and its implementing regulations.
    NMFS tries to coordinate with states on other issues as well. For 
example, with regard to gear markings that yield individual vessel 
information, many of the state and Federal fishery management plans 
currently require marking of buoys and/or traps with individual vessel 
identification. NMFS plans to continue to work with state fisheries 
agencies to investigate gear marking coast-wide and identify gaps in 
marking of surface gear, gillnets, and traps. This information will be 
presented to the ALWTRT for future consideration
    Comment 11: Comments were received that expressed concerns about 
the procedure for providing notice to fishermen in the event of a DAM 
closure. For example, the Massachusetts DMF felt that the May 2001, DAM 
closure was a failure because NMFS did not contact all of the fishermen 
affected and questioned whether NMFS could dedicate the staff time to 
informing fishermen of future DAM closures. Another commenter 
questioned how NMFS would provide notification to fishermen prior to 
the publication in the Federal Register.
    Response: Once the decision has been made to remove gear from a DAM 
zone, based on the criteria outlined in the preamble, NMFS will notify 
the commercial fisheries affected as quickly and comprehensively as 
possible. In order to provide fishermen with time to respond to the 
implementation of gear restrictions within a DAM zone, NMFS will issue 
a notice at the time the notice is filed with the Office of the Federal 
Register, which is usually 3 to 5 days prior to publication in the 
Federal Register. In addition, when a right whale sighting meets the 
DAM trigger, NMFS will issue an alert via email to all ALWTRT members 
and post the alert on the website at www.nero.nmfs.gov/whaletrp/. NMFS 
hopes that members of the ALWTRT who receive an alert will circulate 
the information to other interested parties to help insure that the 
fishermen who may have to eventually remove gear from a DAM zone have 
time to respond. Fishermen, industry representatives, environmental 
groups, and all others interested in receiving alerts and notices over 
the internet should provide their e-mail address to the Northeast 
Regional Office. (See the ADDRESSES section). NMFS will also mail 
letters providing notice to those who request it by contacting the 
Northeast Regional Office in addition to posting such notification on 
the Northeast Regional Office web site at www.nero.nmfs.gov. In 
addition, NMFS will investigate using a news bulletin service to 
provide notice through the local press.
    Comment 12: Several commenters pointed out that the procedure for 
creating a DAM zone in the proposed rule differed from how the process 
is described in the document ``Defining Triggers for Temporary Area 
Closures to Protect Right Whales from Entanglements: Issues and 
Options.''
    Response: NMFS agrees and this inconsistency has been corrected in 
this final rule. The justification and rationale for the correction can 
be found in the preamble of this final rule under ``Changes in the 
Final Rule from the Proposed Rule.''
    Comment 13: Many comments received questioned the decision factors 
NMFS proposed when considering whether to impose restrictions on 
fishing and/or fishing gear within a DAM zone. In particular, several 
environmental groups felt that, except for the consideration of weather 
conditions as they relate to the safety of life at sea, the factors 
listed in the proposed rule should not influence the decision to impose 
restrictions on fishing because such restrictions should be automatic 
once a concentration of right whales triggers a DAM zone. It was also 
noted that NMFS should require the complete removal of all gear 
automatically once a DAM zone has been triggered. A letter from the 
Marine Mammal Commission also expressed concerns over the discretion 
reserved by NMFS with respect to whether to impose restrictions within 
a DAM zone and felt that the factors should only be considered for 
setting a deadline when gear should be removed.
    Response: NMFS believes that the agency should be provided with 
some level of discretion when deciding whether to impose gear 
restrictions within a DAM zone. Therefore, NMFS will base its decision 
on the enumerated factors that are relevant based on the circumstances 
surrounding the implementation of a DAM zone.
    Comment 14: Several comments from environmental groups expressed 
concerns over the proposed regulatory language which provides NMFS with 
the option of deciding whether or not to require the complete removal 
of lobster trap and gillnet gear from a DAM zone. For example, one 
commenter felt that this discretion merely maintains the status quo 
and, therefore, would not sufficiently reduce jeopardy. Another 
commenter felt that, because NMFS and the ALWTRT cannot agree on gear 
modifications that would sufficiently reduce the risk of entanglement 
to right whales, NMFS should require the complete removal of all 
lobster trap and gillnet gear from the DAM zone.
    Response: NMFS believes that reserving the discretion to decide 
whether to implement gear restrictions within DAM zones gives the 
agency a reasonable amount of flexibility to respond to the vast 
multitude of scenarios under which a DAM zone may be triggered. NMFS 
feels that DAM, in combination with the proposed rules for Seasonal 
Area Management (SAM) and additional gear modifications, are 
collectively sufficient to remove the likelihood of jeopardy to the 
continued existence of North Atlantic right whales.

[[Page 1138]]

 DAM was specifically included as one of the multiple management 
components to the Reasonable and Prudent Alternative (RPA) discussed in 
the four BOs on the Fishery Management Plans for spiny dogfish, 
monkfish, multispecies, and Federal regulations for the American 
lobster fishery. According to the RPA, DAM, SAM, and expanded gear 
modifications were developed to cumulatively eliminate serious 
mortality and serious injuries of right whales in gillnet and lobster 
trap gear, eliminate serious and prolonged entanglements, and 
significantly reduce the total number of right whale entanglements in 
gillnet and lobster trap gear. NMFS does not feel that reserving the 
discretion on deciding whether to implement gear restrictions within 
DAM zones implies that the agency will fail to respond when sightings 
of right whales trigger DAM. In addition, while NMFS feels that, at the 
current time, requiring the complete removal of gillnet and lobster 
trap gear from within a DAM zone is the appropriate means for reducing 
the risk of entanglement to right whales, the agency continues to 
encourage fishermen and gear researchers to work on innovating and 
developing ways to improve fishing gear to avoid serious injury and 
mortality from entanglements. In recognition of the fact that gear 
research and development is ongoing, NMFS felt it was important to 
maintain the option of allowing fishing with ``risk averse'' gear 
inside a DAM zone in the event that such gear is perfected and 
approved.
    Comment 15: One commenter suggested that NMFS clarify the 
circumstances under which a DAM would continue and how it would be 
limited. The commenter expressed concern regarding a hypothetical 
situation where, during the 15-day restricted period for a DAM zone, a 
second grouping of whales triggered another separate DAM zone outside 
but adjacent to the initial zone specified in the notice. Based on this 
scenario, the commenter was concerned that the initial DAM zone would 
be enlarged to create a single, very large closure.
    Response: In the event that right whales are sighted and a DAM zone 
is triggered, NMFS would maintain the area for at least 15 days. If a 
DAM zone is triggered, but no restrictions are implemented, the 15-day 
period would begin from the time NMFS issues the alert. If, on the 
other hand, NMFS implements gear restrictions within the DAM zone, the 
15-day period would begin on the date the restrictions become effective 
(i.e., 2 days after publication in the Federal Register). In response 
to the hypothetical situation described, while it is possible that 
there may be some days that the successive DAM zones overlap, the first 
DAM zone will automatically expire after 15 days, unless NMFS decided 
to extend the restricted period to further protect concentrations of 
right whales. However, NMFS also has the option of removing 
restrictions prior to the 15-day automatic expiration if subsequent 
survey efforts confirm that right whales have left the designated area. 
The second DAM zone would be maintained separately with its own 15-day 
restricted period.
    Comment 16: The U.S. Coast Guard commented on aerial patrols to 
assist in confirming sightings and enforcing restrictions within the 
DAM zone. Due to a re-prioritization of law enforcement missions, the 
Coast Guard will only be able to devote minimal aircraft hours to 
assist NMFS in the implementation and enforcement of DAM. In addition, 
surface patrols will be more limited than in the past. Finally, the 
U.S. Coast Guard stated that, if fishing gear is modified and approved 
for use within a DAM zone, the U.S. Coast Guard will not be able to 
assist in enforcement of those restrictions because they are not 
equipped or trained to haul fixed gear.
    Response: NMFS greatly appreciates the support the U.S. Coast Guard 
has provided in the past for implementing and enforcing management 
programs designed to protect and conserve marine mammals. These two 
agencies have a strong commitment to cooperating in the development, 
implementation, and enforcement of programs for marine protected 
resources, including North Atlantic right whales and other marine 
mammals. NMFS acknowledges the fact that the duties of the U.S. Coast 
Guard have been re-prioritized in light of recent national events. NMFS 
notes, however, that other means of enforcing the DAM restrictions 
exist aside from pulling gear and that other law enforcement resources 
can be used to enforce DAM restrictions.
    Comment 17: Several comments were received expressing concerns over 
the burden placed on American fishing to protect whales while only a 
token effort is directed towards ship strikes and Canadian fixed gear.
    Response: NMFS acknowledges that ship strikes and entanglements 
with fishing gear of foreign flag vessels also cause serious injury and 
mortality to right whales. NMFS is currently addressing these threats 
through other means and policy discussions. NMFS is issuing this final 
rule specifically to address commercial fishery impacts from four 
fisheries. This final rule stems from a component of the RPA resulting 
from consultations required under the ESA on the continued operation of 
the monkfish, spiny dogfish, multispecies, and lobster fisheries. 
However, the ALWTRP is designed to respond to the threats posed by 
domestic fishing gear. NMFS appreciates the continued involvement of 
the gillnet and lobster trap fisheries in the ALWTRT and their efforts 
to reduce serious injury and mortality to marine mammals, especially 
right whales. NMFS understands that right whales are injured and killed 
by other sources and will continue to work toward reduction of those 
impacts. For example, NMFS is currently taking into consideration 
recommendations from the Northeast Implementation Team for the Recovery 
of the Northern Right whale and the Humpback whale and the Southeast 
U.S. Right Whale Recovery Plan Implementation Team on ways to reduce 
the impacts of ship strikes from the recreational and commercial 
shipping sectors. In addition, NMFS is working on a proposed rule to 
regulate whale watching. Finally, NMFS is working with representatives 
from the Canadian Department of Fisheries and Oceans to develop and 
implement protective measures for right whales in Canadian waters.
    Comment 18: A comment received from an environmental groups 
requested that, if NMFS is planning on allowing gear to be fished 
within a DAM zone that is determined to sufficiently reduce the risk of 
entanglement to right whales, then NMFS should clarify what constitutes 
a ``sufficient'' reduction.
    Response: Although NMFS is considering gillnet and lobster trap 
gear modifications as part of the proposed rule for the SAM program, at 
present, NMFS does not have criteria developed that would allow gillnet 
or lobster trap gear to be fished within a DAM zone. NMFS may allow 
fishing within a DAM zone with specified gear if that gear is 
determined to sufficiently reduce the risk of entanglement to right 
whales. The DAM program is designed for a rapid response to the 
presence of right whales in areas at times that are generally 
unpredictable. The regulatory text and preamble of the proposed rule 
notes that any gear modifications determined by NMFS to sufficiently 
reduce the risk of entanglement to right whales would be identified in 
the Federal Register notice implementing the DAM zone. To the extent 
practicable, NMFS will provide a separate notification in the Federal 
Registerregarding any determination that gear modifications 
sufficiently reduce the risk of entanglement to right

[[Page 1139]]

whales in DAM zones in advance of imposition of any DAM zones with 
those gear modifications.
    Comment 19: One commenter suggested that NMFS initiate inter-agency 
and international cooperation to assist in the development of programs 
to protect right whales.
    Response: NMFS notes that under section 7 of the Endangered Species 
Act, Federal agencies must consult with NMFS to insure that any action 
authorized, funded, or carried out by such agency (referred to as the 
``action agency'') is not likely to jeopardize the continued existence 
of any endangered or threatened species. After discussions with the 
action agency, if NMFS concludes in a biological opinion that an 
activity is likely to jeopardize the continued existence of any 
endangered or threatened species, NMFS must include in its opinion any 
RPAs to avoid the likelihood of jeopardy to the listed species from the 
Federal activity. Furthermore, NMFS has established Memoranda of 
Agreement between several Federal agencies, such as the U.S. Navy, U.S. 
Coast Guard, and U.S. Army Corps of Engineers, to help better protect 
and recover listed species. With respect to international cooperation, 
NMFS is continuing to work with the Canadian government to develop and 
implement protective measures for right whales in Canadian waters. In 
addition, NMFS is working with Canadian whale biologists and support 
teams to improve and expand disentanglement efforts in Canadian waters.
    Comment 20: One commenter suggested that NMFS issue regulations to 
close portions of the Right Whale Critical Habitat Areas to gillnet and 
lobster fishing and completely prohibit the use of ``high risk'' types 
of fishing gear in critical habitat during periods of known use by the 
whales.
    Response: Although NMFS has not specifically defined or designated 
``high risk'' types of fishing gear, data collected from past 
entanglements indicates that serious injuries and mortalities to right 
whales have occurred from interactions with gear used by the anchored 
gillnet and lobster trap fisheries. As a result, NMFS has implemented 
regulations that restrict the use of these gear types within right 
whale critical habitat during the months that the whales are present in 
these areas. For example, from April 1 to June 30, no lobster trap or 
anchored gillnet gear may be set in the Great South Channel Critical 
Habitat. In addition, from January 1 to May 15, anchored gillnetting is 
prohibited within the Cape Cod Bay Critical Habitat. Lobster trap 
fishing is permitted during this restricted period within Cape Cod Bay 
Critical Habitat, but the gear must be set with weak links and sinking 
lines that reduce the risk of serious injury and mortality from 
entanglements.
    Comment 21: NMFS should develop take reduction plans (TRPs) that 
would mitigate bycatch of all strategic stocks of marine mammals in 
commercial fisheries.
    Response: NMFS has chosen to develop TRPs on particular stocks. 
NMFS manages multiple stocks through some TRPs such as the ALWTRP. 
Decisions on whether a TRP addresses single or multiple stocks is 
dependent on the similarities of the fisheries that impact these 
stocks. No take reduction team can be tasked with suggesting 
recommendations to mitigate bycatch of all strategic marine mammal 
stocks in commercial fisheries, and NMFS does not have the funds to 
develop additional take reduction teams at this time. Presently, NMFS 
is considering the take reduction teams currently formed, and the 
success of each TRP toward reaching the goals of the MMPA, in order to 
determine whether funds could be redirected to support additional take 
reduction teams.
    Comment 22: One commenter noted that NMFS must undertake an 
adequate program of research and development for the purpose of 
devising improved fishing methods and gear so as to reduce the 
incidental taking of right whales in commercial fishing.
    Response: NMFS is committed to gear research and development, and 
will expand this program as funding allows. NMFS has gear laboratories 
and research teams that specifically focus on gear development and 
testing. Additionally, NMFS contracts with researchers, individuals and 
companies to develop gear solutions. Many of the current TRP measures 
are based on the outcome of such gear research (e.g. weak links) 
conducted and/or funded by NMFS. The gear modifications are important 
to reduce interactions between right whales (and other large whales) 
and fishing gear to further reduce serious injury and mortality of 
large whales due to entanglement in fishing gear. In addition, NMFS 
intends to continue to support the contributions made by the ALWTRT's 
Gear Advisory Group. NMFS is collaborating with other organizations to 
host a gear workshop, tentatively scheduled for February 2002, to 
investigate additional options and gear enhancements for gillnet and 
lobster trap gear. The results of this workshop will be distributed to 
the ALWTRT for consideration of future gear recommendations to NMFS. 
Comment 23: Several commenters expressed concerns over the lack of 
notification regarding the publication of the proposed rules.
    Response: Time constraints prevented NMFS from holding public 
hearings on the current regulations; however, NMFS used other ways to 
let the public know that public comments were being sought on a 
proposed rule to address commercial fishery/large whale interactions. 
In addition to publication of the proposed rule in the Federal 
Register, efforts included distributing the information to ALWTRT 
members who represent various stakeholder groups and provide valuable 
links to distribute information to the public, NOAA press release, 
announcement in NOAA's FishNews, and communications with state 
managers. NMFS will consider other means of communicating with the 
public and welcomes recommendations on ways to disseminate such 
information such as through letters to permit holders.
    Comment 24: One commenter suggested that NMFS use emergency 
publication to expedite the process for implementing DAM.
    Response: NMFS is not planning on using emergency publication to 
implement DAM based on the following reasons. Once the agency has 
determined to implement gear restrictions within a DAM zone, NMFS 
intends to forward the signed document to the Office of the Federal 
Register with a request for ``file immediately'' status. As soon as the 
notification is filed, NMFS will begin to notify interested parties. 
NMFS has found that requesting emergency publication does not 
significantly expedite the process for providing notice above what is 
being provided in this final rule. However, NMFS will consider 
requesting emergency publication if the particular facts of a situation 
indicate that doing so would be warranted.

Changes in the Final Rule from the Proposed Rule

    This final rule will correct and clarify one of the criteria used 
to determine the extent of a DAM zone. The description of the criterion 
presented in the proposed rule did not accurately reflect NMFS' intent 
in establishing the size of a DAM zone. At issue is the location of the 
15 nm (27.8 km) radius that is used to determine the size of a DAM 
zone.
    As published in the preamble of the proposed rule, a 15-nm (27.8 
km) radius from the ``event epicenter'' would be used to draw a larger 
circular zone around each core area encompassing a concentration of 
right whales. The event epicenter was defined in the proposed rule as 
the geographic center of all

[[Page 1140]]

sightings on the first day of an event. However, the criterion 
described in the proposed rule does not clearly describe the intent 
contained in the reference document. The reference document used to 
establish this criterion, ``Defining Triggers for Temporary Area 
Closures to Protect Right Whales from Entanglements: Issues and 
Options'' (see ADDRESSES for copies), describes the DAM zone buffer as 
the boundary of a circle that extends 15 nm (27.8 km) from the 
perimeter of a circle around the initial whale sightings or core area. 
The DAM zone will then be defined by a polygon drawn outside but 
tangential to the circular buffer zone(s). The latitudinal and 
longitudinal coordinates of the corners of the polygon will then be 
identified.
    Therefore, Sec.  229.32(g)(3)(ii) is revised to identify the DAM 
zone as a larger circular zone drawn to extend 15 nm (27.8 km) from the 
perimeter of a circle around each core area.

Classification

    NMFS prepared a FRFA for this rule. A copy of this analysis is 
available from NMFS (see ADDRESSES). Five alternatives were evaluated, 
including a status quo or no action alternative, the preferred 
alternative (PA), and three other alternatives. A summary of that 
analysis follows:
    (1) The ``No Action'' alternative would leave in place the existing 
regulations promulgated under the ALWTRP, but specific criteria and 
procedures for DAM would not be included in the regulations. The no 
action alternative would result in no additional economic burden on the 
fishing industry, at least in the short-term. However, if the status 
quo is maintained now, more restrictive and economically burdensome 
measures than those in this final rule may be necessary in the future 
to protect endangered right whales. The No Action alternative was 
rejected because it would not enable NMFS to meet the RPA measures of 
the BOs required under the ESA.
    (2) NMFS considered but rejected an alternative that would require 
different triggers within each respective state jurisdiction as 
discussed by the ALWTRT. None of the proposals offered by the states 
were supported by data. No information has been presented to 
demonstrate the potential for these triggers to result in DAM zones 
that would reduce the risk of entanglement to right whales. The ALWTRT 
discussed having different triggers within each respective state 
jurisdiction. This could only be considered if the state trigger was 
found to be more restrictive than the Federal trigger, which is not the 
case with the triggers suggested by Maine, Massachusetts and/or Rhode 
Island. The state triggers were evaluated as if they would apply 
consistently to all waters - federal and state.
    (3) NMFS considered but rejected an alternative that would trigger 
a DAM zone using the observation of one right whale on a single day. In 
addition, a buffer of 15 nm would be drawn around each individual 
animal observed. The observation of one or two right whales does not 
appear to be a good indicator of residency. The trigger in this 
alternative is not effective at predicting residency, and thus may 
trigger DAM zones more often than necessary.
    (4) NMFS considered but rejected an alternative in which the 
trigger and buffer would generally be the same as in the preferred 
alternative (PA)(i.e., the observation of four right whales in a 100-
nm2 area and the buffer would be 15 nm), however, instead of imposing a 
restriction requiring removal of all lobster gear, a 50-percent 
reduction in vertical lines would be required for lobster gear. The 
restrictions for gillnet gear would be the same as in the PA which 
requires complete removal. Based on right whale sightings data in 2000, 
six areas could potentially be closed. Because this alternative would 
require the removal of only 50 percent of vertical lines for lobster 
gear rather than all vertical lines (i.e. all gear), NMFS is concerned 
that this alternative may not be consistent with statutory objectives.
    (5) The PA will temporarily restrict lobster trap and gillnet 
fisheries when NMFS receives a single reliable report from a qualified 
individual of three or more right whales within an area (75 nm2) such 
that right whale density is equal to or greater than 0.04 right whale 
per nm2. Based on right whale sightings data from 1999 and 2000, a DAM 
zone would have been triggered four times in 1999 and six times in 
2000. NMFS accepted this alternative as these DAM zones are appropriate 
to avoid jeopardizing the continued existence of North Atlantic right 
whales and enable NMFS to meet a portion of the RPA in the BO's.
    The action is part of the RPA that resulted from the BOs issued by 
NMFS, in accordance with section 7 of the ESA, to remove the likelihood 
of jeopardy of North Atlantic right whales posed by the continued 
operation of the multispecies, spiny dogfish, monkfish and lobster 
fisheries. The objective of this action is to reduce the level of 
serious injury to and mortality of North Atlantic right whales in East 
Coast lobster trap and finfish gillnet fisheries.
    NMFS has taken steps to minimize the significant economic impact on 
small entities through this PA by reserving discretion to issue an 
alert or impose gear restrictions, rather than closing DAM areas, if 
these measures would be sufficient to protect concentrations of right 
whales. The small entities affected by this final rule are gillnet and 
lobster trap fishermen. The geographic areas for consideration for DAM 
are limited to areas north of 40 deg. N latitude. Since DAM will be 
used to respond to unusual and unexpected sightings of right whales, it 
is difficult for NMFS to predict exactly where DAM zones may be 
implemented in the future. It is difficult to quantify the economic 
impacts of NMFS using its discretion in implementing 50 CFR 
229.32(g)(2) as the restrictions that will be are unknown at this time 
in addition to the unknowns of the particular event such as the time 
and location of the restrictions and the level of fishing effort at 
that time and location. Therefore, providing an accurate estimate of 
the number of small entities that will be affected is problematic. 
Based on the available data, a maximum of 7,539 state and federally 
permitted lobster vessels and 310 gillnet vessels, which includes 
federally permitted vessels and may include state permitted vessels, 
could be affected by this action. However, NMFS does not expect that 
number of vessels to be affected by any one DAM closure because of the 
limited size of a DAM zone. For example, the retrospective analysis of 
the April-May 2000 DAM Area 1 estimated that 210 lobster vessels and 42 
gillnet vessels would have been affected by the hypothetical closure.
    NMFS received two public comments relating to the economic impacts 
of this final rule. These comments were considered by NMFS before it 
approved this final rule and are characterized and responded to by NMFS 
in the ``Comments and Responses'' section of the preamble to this final 
rule, as comment/response numbers four and eight. No changes to the 
rule were made as a result of these comments.
    This action contains no new reporting or record keeping 
requirements. There are no relevant Federal rule actions that 
duplicate, overlap, or conflict with this action.
    NMFS determined that this action is consistent to the maximum 
extent practicable with 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. No state disagreed

[[Page 1141]]

with our conclusion that the rule is consistent with the enforceable 
policies of the approved coastal management program for that state.
    This final rule contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism assessment under 
Executive Order 13132. Accordingly, the Assistant Secretary for 
Legislative and Intergovernmental Affairs provided notice of the 
proposed action to the appropriate official(s) of affected state, local 
and/or tribal government in October 2001. No comments on the federalism 
implications of the proposed action were received in response to this 
notification. However, one affected state did respond on the federalism 
implications during the comment period for the proposed rule. The 
comment is characterized and responded to by NMFS in the ``Comments and 
Responses'' section of the preamble to this final rule, as comment/
response number 10. No changes to the rule were made as a result of the 
comment received.
    This final rule implements a portion of the RPA, which resulted 
from ESA section 7 consultations on three FMPs for the monkfish, spiny 
dogfish, and Northeast multispecies fisheries, and the Federal 
regulations for the American lobster fishery. This final rule 
implements a component of the RPA contained in the BOs issued by NMFS 
on June 14, 2001. Therefore, no further section 7 consultation is 
required.
    This rule has been determined to be not significant for the 
purposes of Executive Order 12866.

References

    ALWTRT. 2001. Draft Atlantic Large Whale Take Reduction Team 
Meeting Summary. Summary prepared by RESOLVE, Inc. and submitted to the 
National Marine Fisheries Service July 16, 2001.
    Bisack, K. 2001. Economic analysis of Wilkinson Basin closure. 
Northeast Fisheries Science Center, 166 Water Street, Woods Hole, MA. 
02543.
    Bisack, K. 2001. (Draft) Economic analysis of dynamic area 
management (DAM). Northeast Fisheries Science Center, 166 Water Street, 
Woods Hole, MA. 02543.
    Clapham, P.J. and R.M. Pace, III. 2001. Defining Triggers for 
Temporary Area Closures to Protect Right Whales from Entanglements: 
Issues and Options. Northeast Fisheries Science Center Reference 
Document 01-06. April 2001.
    National Marine Fisheries Service. 2000. Environmental Assessment 
of the Atlantic Large Whale Take Reduction Plan and Implementing 
Regulations. NMFS. Northeast Region. December 2000.
    National Marine Fisheries Service. 2001. Preliminary estimates of 
the revenue losses to the gillnet and lobster fleet in 1999 due to 
potential dynamic area closures to protect right whales. NMFS. 
Northeast Region. March 2001.
    National Marine Fisheries Service. 2001. Endangered Species Act 
section 7 consultation. Biological opinion regarding Fishery Management 
Plans for monkfish, spiny dogfish, and multispecies and Federal 
regulations for American lobster. June 14, 2001.

    Dated: December 31, 2001.
Rebecca Lent,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

List of Subjects in CFR Part 229

    Administrative practice and procedure, Fisheries, Marine mammals, 
Reporting and record keeping requiremnts.

    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.

    2. In Sec.  229.2, a definition of ``Qualified individual'' and 
``Reliable report'' are added in alphabetical order to read as follows:


Sec.  229.2  Definitions.

* * * * *
    Qualified individual means an individual ascertained by NMFS to be 
reasonably able, though 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.
* * * * *
    Reliable report means a credible right whale sighting report based 
upon which a DAM zone would be triggered.
* * * * *

    3. In Sec.  229.32, paragraph (g)(3) is added to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (g)***
    (3) For the purpose of reducing the risk of fishery interactions 
with right whales, NMFS may establish a temporary Dynamic Area 
Management (DAM) zone in the following manner:
    (i) Trigger. Upon receipt of a single reliable report from a 
qualified individual of three or more right whales within an area NMFS 
will plot each individual sighting (event) and draw a circle with a 2.8 
nm (5.2 km) radius around it, which will be adjusted for the number of 
right whales sighted such that a density of at least 0.04 right whales 
per nm2 (1.85 km2) is maintained within the circle. If any circle or 
group of contiguous circles includes 3 or more right whales, NMFS would 
consider this core area and its surrounding waters a candidate DAM 
zone.
    (ii) DAM zone. Areas for consideration for DAM zones are limited to 
areas north of 40o N latitude. Having identified any circle or group of 
contiguous circles including 3 or more right whales as candidates for 
protection, as identified in paragraph (g)(3)(i) of this section, NMFS 
will determine the extent of the DAM zone as follows:
    (A) A larger circular zone will be drawn to extend 15 nm (27.8 km) 
from the perimeter of a circle around each core area.
    (B) The DAM zone will then be defined by a polygon drawn outside 
but tangential to the circular buffer zone(s). The latitudinal and 
longitudinal coordinates of the corners of the polygon will then be 
identified.
    (iii) Requirements and prohibitions within DAM zones. Notice of 
specific area restrictions will be published in the Federal Register 
and will become effective 2 days after publication. Gear not in 
compliance with the imposed restrictions may not be set in the DAM zone 
after the effective date. NMFS may either:
    (A) require owners of gillnet and lobster gear set within the DAM 
zone to remove all such gear within 2 days after notice is published in 
the Federal Register, or
    (B) allow fishing within a DAM zone with gear modifications 
determined by NMFS to sufficiently reduce the risk of entanglement to 
right whales. Acceptable fishing practices and gear modifications would 
be identified in the Federal Register notification implementing the DAM 
zone.
    (C) The determination of whether restrictions will be imposed 
within a DAM zone would be based on NMFS' review of a variety of 
factors, including but not limited to: the location of the

[[Page 1142]]

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.
    (iv) Restricted period. Any DAM zone will remain in effect for a 
minimum period of 15 days. At the conclusion of the 15-day period, the 
DAM zone will expire automatically unless it is extended by subsequent 
publication in the Federal Register.
    (v) Extensions of the restricted period. Any 15-day period may be 
extended if NMFS determines that the trigger established in paragraph 
(g)(3)(i) of this section continues to be met.
    (vi) Reopening of restricted zone. NMFS may remove any gear 
restriction or prohibition and reopen the DAM zone prior to its 
automatic expiration if there are no confirmed sightings of right 
whales for at least 1 week, or other credible evidence indicates that 
right whales have left the DAM zone. NMFS will notify the public of the 
reopening of a DAM zone prior to the expiration of the 15-day period by 
issuing a document in the Federal Register and through other 
appropriate media.
[FR Doc. 02-272 Filed 1-8-02; 8:45 am]
BILLING CODE 3510-22-S