[Federal Register Volume 68, Number 72 (Tuesday, April 15, 2003)]
[Rules and Regulations]
[Pages 18143-18145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9222]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030407078-3078-01; I.D. 040103A]


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

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

ACTION: Temporary rule.

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

SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, 
announces that lobster trap/pot and anchored gillnet fishermen are 
requested to remove on a voluntary basis their gear from an area 
totaling approximately 1,810 square nautical miles (nm\2\) (3,354 
km\2\), east and southeast of Cape Cod, MA for 15 days and anchored 
gillnet fishermen are asked to remove their gear voluntarily from the 
Sliver Area of the Great South Channel Critical Habitat. These 
fishermen are also asked not to set additional gear during this period. 
The purpose of this action is to provide protection to an aggregation 
of North Atlantic right whales (right whales).

DATES: Effective beginning at 0001 hours April 10, 2003, through 2400 
hours April 25, 2003.

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.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast 
Region, 978-281-9328; or Kristy Long,

[[Page 18144]]

NMFS, Office of Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP and the take 
reduction planning process can be downloaded from the ALWTRP Web site 
at http://www.nero.nmfs.gov/whaletrp/.

Background

    The ALWTRP was developed pursuant to section 118 of the Marine 
Mammal Protection Act (MMPA) to reduce the incidental mortality and 
serious injury of 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 
ALWTRP's Dynamic Area Management (DAM) program (67 FR 1133). The DAM 
program provides specific authority for NMFS to restrict temporarily on 
an expedited basis the use of lobster trap/pot and anchored gillnet 
fishing gear in areas north of 40[deg] N. lat. to protect right whales. 
Under the DAM program, NMFS may: (1) require the removal of all lobster 
trap 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; and/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 (75 nm\2\ (139 km\2\)) such that right whale density within that 
area 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 March 23, 2003, NMFS Aerial Survey Team reported a sighting of 
42 right whales in the proximity of 41[deg] 41' N lat. and 69[deg] 48' 
W long. This position lies east of Cape Cod, MA. Thus, NMFS has 
received a reliable report from a qualified individual of the requisite 
right whale density to trigger the DAM provisions of the ALWTRP.
    Once a DAM zone is triggered, NMFS determines whether to impose 
restrictions on fishing and/or fishing gear in the zone. This 
determination is based on the following factors, including but not 
limited to: the location of the DAM zone with respect to other fishery 
closure areas, weather conditions as they relate to the safety of human 
life at sea, the type and amount of gear already present in the area, 
and a review of recent right whale entanglement and mortality data.
    Because the Seasonal Area Management (SAM) West zone, Cape Cod Bay 
Critical Habitat, and Great South Channel Critical Habitat overlap the 
DAM zone, these areas are excluded from the DAM zone. Thus, the DAM 
zone triggered on March 23, 2003, is divided into two sections: the 
Northeastern DAM and the Southern DAM.
    NMFS has reviewed the factors and management options noted above 
relative to the DAM zone under consideration. NMFS requests the 
voluntary removal of lobster trap/pot and anchored gillnet gear and 
asks lobster trap/pot and anchored gillnet fishermen not to set any new 
gear in this area during the 15-day restricted period. NMFS requests 
voluntary restrictions within the DAM zone and Sliver Area because of 
the minimal amount of fishing gear in these waters during this time of 
year, and based on what we know about right whale migration, the 
animals should be moving into other protected areas such as the SAM 
zone and the Great South Channel Critical Habitat.
The DAM zone is bound by the following coordinates:
Northeastern DAM zone
    41[deg]14'N, 69[deg]24'W (NW Corner)
    41[deg]48.5'N, 69[deg]24'W
    41[deg]56.5'N, 69[deg]04'W
    41[deg]14'N, 69[deg]04'W
Southern DAM zone
    41[deg]33'N, 70[deg]32'W (NW Corner)
    41[deg]24.5'N, 70[deg]32'W and east along the coast to
    41[deg]21.5'N, 70[deg]32'W
    41[deg]08'N, 70[deg]32'W
    41[deg]08'N, 69[deg]13'W
    41[deg]40'N, 69[deg]45'W
    41[deg]45'N, 69[deg]33'W
    41[deg]45'N, 69[deg]56'W and returning to
    41[deg]33'N, 70[deg]32'W along the coast
    In addition, NMFS is requesting the voluntary removal of all 
gillnet gear from the Sliver Area of the Great South Channel Critical 
Habitat during the 15-day restricted period and asks anchored gillnet 
fishermen not to set any new gear in this area during the 15-day 
restricted period. The Sliver Area is bound by the following 
coordinates:
    41[deg]02.2'N, 69[deg]02'W
    41[deg]43.5'N, 69[deg]36.3'W
    41[deg]40'N, 69[deg]45'W
    41[deg]00'N, 69[deg]05'W
    The voluntary restrictions 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 (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.
    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

[[Page 18145]]

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 
(ADDRESSES).

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

    Dated: April 9, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 03-9222 Filed 4-10-03; 3:34 pm]
BILLING CODE 3510-22-S