[Federal Register Volume 67, Number 237 (Tuesday, December 10, 2002)]
[Rules and Regulations]
[Pages 75817-75818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31160]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001128334-2292-10; I.D. 112702B]


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: Rule.

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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, is 
withdrawing the temporary restrictions announced in a temporary rule 
published on December 3, 2002 (67 FR 71900). The purpose of this rule 
is to withdraw the restrictions and request fishermen to voluntarily 
remove lobster trap/pot and anchored gillnet gear in an area totaling 
approximately 1,600 square nautical miles (nm\2\) (2,965 km\2\), east 
of Portsmouth, NH, called Jeffreys Ledge, from December 5 through 
December 20, 2002.

DATES: Effective December 5, 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, 978-281-9145; 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 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/pot 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

[[Page 75818]]

sufficiently reduce the risk of entanglement; 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 (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 November 20, 2002, NMFS Aerial Survey Team reported a sighting 
of 8 right whales in the proximity of 43[deg] 00' N lat. and 70[deg]08' 
W long. This position lies east of Portsmouth, NH, in an area called 
Jeffreys Ledge.
    In a temporary rule published on December 3, 2002 (67 FR 71900), 
NMFS restricted lobster trap/pot and gillnet gear set in the waters 
bounded by:
    43[deg]19'N, 70[deg]35'W (NW Corner)
    43[deg]19'N, 69[deg]40'W
    42[deg]39'N, 69[deg]40'W
    42[deg]39'N, 70[deg]35'W (SW Corner)
    Please note that the western DAM boundary (70[deg]35'W) from 
43[deg]11'N due north to 43[deg]19'N will follow the coastline.
    Due to rough weather conditions in the Gulf of Maine, effected 
fishers are unable to remove active gear as required by the temporary 
rule. Therefore, the AA has determined that the temporary restrictions 
should be withdrawn. However, the AA requests that fishermen 
voluntarily remove their lobster trap/pot and anchored gillnet gear in 
the area described above if weather conditions allow removal of the 
gear through December 20, 2002. Additionally, fishermen are encouraged 
not to set gear in the DAM area during this time period.
    This rule 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

    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.
    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 
withdraw the temporary restrictions, because providing notice and an 
opportunity to comment on this action would be contrary to the public 
interest. If NMFS were to provide notice and an opportunity to comment 
on this action, the temporary gear restrictions would remain effective, 
and fishermen would risk bodily harm in trying to remove their gear due 
to the severe weather conditions in the Northeast region. In addition, 
it would be unfair to subject fishermen to changes in gear requirements 
when, due to weather, the affected fishermen have been unable to 
implement these changes.
    The AA is also waiving the 30-day delay in effective date under 5 
U.S.C. 553(d)(1), because this action relieves a restriction. Thus, 
NMFS makes this action effective beginning December 5, 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: December 5, 2002.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-31160 Filed 12-5-02; 3:09 pm]
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