[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