[Federal Register Volume 67, Number 126 (Monday, July 1, 2002)]
[Rules and Regulations]
[Pages 44092-44093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16537]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001128334-2158-09 ; I.D. 062502B]


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: Temporary rule.

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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, 
announces temporary restrictions, which include both mandatory and 
voluntary measures, 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 fishermen 
in an area totaling approximately 3,500 square nautical miles (nm\2\) 
(6,486 km\2\) in the Great South Channel area, east of Cape Cod, 
Massachusetts, for 15 days. The purpose of this action is to provide 
immediate protection to an unexpectedly high aggregation of North 
Atlantic right whales (right whales).

DATES: Effective beginning at 0001 hours July 1, 2002, through 2400 
hours July 15, 2002.

ADDRESSES: Copies of the proposed and final Dynamic Area Management 
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, One Blackburn Drive, Gloucester, MA 
01930.
    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, 978-28-9145; 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 whales, 
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 
ALWTRP's Dynamic Area Management (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 right whales. 
Under the DAM program, NMFS may: (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 three or more right whales sighted within an 
area (75nm\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 June 18, 2002, NMFS Aerial Survey Team reported a sighting of 75 
right whales, 45 in the proximity of 41 deg. 21' N lat. and 69 deg. 17' 
W long. and 30 in the proximity of 41 deg. 21' N latitude and 69 deg. 
01' W longitude. These positions lie east of Cape Cod, Massachusetts, 
in an area called the Great South Channel.
    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 has reviewed the factors and management options noted above 
and additional data regarding current and historic right whale 
sightings. Through this action, NMFS restricts lobster trap and gillnet 
gear set in the waters bounded by:
    41 deg.48' N, 69 deg.44'W (NW Corner)
    41 deg.48' N, 68 deg.25' W
    40 deg.54' N, 68 deg.25'W
    40 deg.54' N, 69 deg.06' W (SW Corner)
    The mandatory restrictions for the portion of the DAM zone east of 
the western boundary of the Outbound Boston Harbor shipping lanes are 
as follows: All anchored gillnet and lobster trap gear must be removed 
from these waters.
    In addition, NMFS requests the voluntary removal of all lobster 
trap and anchored gillnet gear in the waters bounded by:
    41 deg.48' N, 69 deg.51' W (NW Corner)
    41 deg.48' N, 69 deg.44' W
    40 deg.54' N, 69 deg.06' W
    40 deg.54' N, 69 deg.51' W (SW Corner)
    The voluntary restrictions for this portion of the DAM zone west of 
the western boundary of the Outbound Boston Harbor shipping lanes are 
as follows: voluntary removal of all lobster trap and gillnet gear from 
these waters. Furthermore, NMFS asks lobster trap and gillnet fishermen 
not to set any new gear in this entire area during the 15-day alert 
period. The restrictions will be in effect beginning at 0001 hours July 
1, 2002, through 2400 hours July 15, 2002, unless terminated sooner or 
extended by

[[Page 44093]]

NMFS, through another notification in the Federal Register. The 
restrictions, both mandatory and voluntary, 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 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 the National Environmental Policy Act (NEPA) is not 
required.
    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 the criteria are triggered and NMFS determines that a DAM 
restricted zone is appropriate. The criteria were triggered with 
respect to this rule on June 18, 2002. If NMFS were to provide notice 
and an opportunity for public comment prior to the creation of a DAM 
restricted zone, the aggregated right whales would be vulnerable to 
entanglement which could result in serious injury and mortality. 
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.
    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 
result in serious injury and mortality. 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 
beginning at 0001 hours July 1, 2002, through 2400 hours July 15, 2002. 
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, DOC, 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 Executive 
Order 12866.

    Authority: 16 U.S.C. 1361 et seq.and 50 CFR 229.32(g)(3)

    Dated: June 26, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-16537 Filed 6-27-02; 10:47 am]
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