[Federal Register Volume 69, Number 41 (Tuesday, March 2, 2004)]
[Rules and Regulations]
[Pages 9760-9762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4621]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030221039-4072-06; I.D. 022004A]


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.

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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, 
announces temporary restrictions consistent with the requirements of 
the ALWTRP's implementing regulations. These regulations make changes 
to the area for restrictions that were provided in a temporary rule 
published in the Federal Register on February 25, 2004, and apply to 
lobster trap/pot and anchored gillnet fishermen in an area totaling 
approximately 1,896 square nautical miles (nm2) in February, and 1,580 
nm\2\(5,419 km\2\) in March, east of Portsmouth, NH, for 15 days. 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 March 1, 2004, through 2400 
hours March 12, 2004.

ADDRESSES: Copies of the proposed and final Dynamic Area Management 
rules, Environmental Assessments (EAs), 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 x6503; or Kristy Long, NMFS, Office of Protected 
Resources, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP and the take 
reduction

[[Page 9761]]

planning process can be downloaded from the ALWTRP web site at http://www.nero.noaa.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 three endangered species of whales (right, fin, and 
humpback) as well as to provide conservation benefits to a fourth non-
endangered species (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). On August 
26, 2003, NMFS amended the regulations by publishing a final rule, 
which specifically identified gear modifications that may be allowed in 
a DAM zone (68 FR 51195). 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/pot and anchored 
gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot 
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/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 (75 nm\2\ (139 km\2\)) such that right whale density is equal to 
or greater than 0.04 right whales per nm2 (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 February 12, 2004, NMFS Aerial Survey Team reported a sighting 
of six right whales in the proximity of 42[deg] 41.56' N lat. and 
70[deg] 02.03' W long. This position lies east of Portsmouth, NH. 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.
    NMFS reviewed the factors and management options noted above 
relative to the DAM under consideration. As a result of this review, 
NMFS published a temporary rule on February 25, 2004 (65 FR 8570), to 
prohibit lobster trap/pot and anchored gillnet gear in this area during 
the 15-day restricted period unless it is modified in the manner 
described in this temporary rule. The DAM zone identified in the 
Federal Register on February 25, 2004, was bound by the following 
coordinates:
    43[deg]03'N, 70[deg]32'W (NW Corner)
    43[deg]03'N, 69[deg]32'W
    42[deg]20'N, 69[deg]32'W
    42[deg]20'N, 70[deg]32'W
    The effective dates for this DAM zone coincide with the 
implementation of SAM West on March 1 and, as of that date, the 
southeast corner of the DAM zone will overlap SAM West. Inadvertently, 
however, the area NMFS identified as the DAM Zone did not omit SAM West 
from the designated DAM zone. Therefore, pursuant to NMFS policy 
concerning the relationship of DAM to other regulated waters, such as 
SAM, on March 1, 2004, the boundaries of the DAM zone will change to 
reflect the establishment of SAM West. Accordingly, as of March 1, 
2004, the DAM zone will be bound by the following coordinates:
    43[deg]03'N, 70[deg]32'W (NW Corner)
    43[deg]03'N, 69[deg]32'W
    42[deg]30''N, 69[deg]3'W
    42[deg]30'N, 70[deg]15'W
    42[deg]2'0'N, 70[deg]15'W
    42[deg]20'N, 70[deg]32'W
    In addition to those gear modifications currently implemented under 
the ALWTRP at 50 CFR 229.32, the following gear modifications are 
required in the DAM zone. If the requirements and exceptions for gear 
modification in the DAM zone, as described below, differ from other 
ALWTRP requirements for any overlapping areas and times, then the more 
restrictive requirements will apply in the DAM zone.

Lobster Trap/Pot Gear

    Fishermen utilizing lobster trap/pot gear within the portion of the 
Northern Nearshore Lobster Waters, Northern Inshore State Lobster 
Waters, and Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap 
with the DAM zone are required to utilize all of the following gear 
modifications while the DAM zone is in effect:
    1. Groundlines must be made of either sinking or neutrally buoyant 
line. Floating groundlines are prohibited;
    2. All buoy lines must be made of either sinking or neutrally 
buoyant line, except the bottom portion of the line, which may be a 
section of floating line not to exceed one-third the overall length of 
the buoy line;
    3. Fishermen are allowed to use two buoy lines per trawl; and
    4. A weak link with a maximum breaking strength of 600 lb (272.4 
kg) must be placed at all buoys.
    Fishermen utilizing lobster trap/pot gear within the portion of the 
Offshore Lobster Waters Area that overlap with the DAM zone are 
required to utilize all of the following gear modifications while the 
DAM zone is in effect:
    1. Groundlines must be made of either sinking or neutrally buoyant 
line. Floating groundlines are prohibited;
    2. All buoy lines must be made of either sinking or neutrally 
buoyant line, except the bottom portion of the line, which may be a 
section of floating line not to exceed one-third the overall length of 
the buoy line;
    3. Fishermen are allowed to use two buoy lines per trawl; and
    4. A weak link with a maximum breaking strength of 1,500 lb (680.4 
kg) must be placed at all buoys.

Anchored Gillnet Gear

    Fishermen utilizing anchored gillnet gear within the portion of the 
Other Northeast Gillnet Waters and Stellwagen Bank/Jeffreys Ledge 
Restricted Area that overlap with the DAM zone are required to utilize 
all the following gear modifications while the DAM zone is in effect:

[[Page 9762]]

    1. Groundlines must be made of either sinking or neutrally buoyant 
line. Floating groundlines are prohibited;
    2. All buoy lines must be made of either sinking or neutrally 
buoyant line, except the bottom portion of the line, which may be a 
section of floating line not to exceed one-third the overall length of 
the buoy line;
    3. Fishermen are allowed to use two buoy lines per string;
    4. Each net panel must have a total of five weak links with a 
maximum breaking strength of 1,100 lb (498.8 kg). Net panels are 
typically 50 fathoms (91.4 m) in length, but the weak link requirements 
would apply to all variations in panel size. These weak links must 
include three floatline weak links. The placement of the weak links on 
the floatline must be: one at the center of the net panel and one each 
as close as possible to each of the bridle ends of the net panel. The 
remaining two weak links must be placed in the center of each of the up 
and down lines at the panel ends; and
    5. All anchored gillnets, regardless of the number of net panels, 
must be securely anchored with the holding power of at least a 22 lb 
(10.0 kg) Danforth-style anchor at each end of the net string.
    These restrictions will remain in effect as provided in the 
temporary rule published February 25, 2004 until 0001 hour March 1, 
2004 at which time these restrictions will become effective in the DAM 
zone with the coordinates provided by this temporary rule through 2400 
hours March 12, 2004, unless terminated sooner or extended by NMFS 
through another notification in the Federal Register.
    The 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 (AA) for Fisheries 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 EAs prepared for the ALWTRP's DAM program. 
Further analysis under the National Environmental Policy Act (NEPA) is 
not required.
    NMFS provided prior notice and an opportunity for public comment on 
the regulations establishing the criteria and procedures for 
implementing a DAM zone. Providing prior notice and opportunity for 
comment on this action, pursuant to those regulations, would be 
impracticable because it would prevent NMFS from executing its 
functions to protect and reduce serious injury and mortality of 
endangered right whales. The regulations establishing the DAM program 
are designed to enable the agency to help protect unexpected 
concentrations of right whales. In order 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. If NMFS were to provide prior notice and an opportunity 
for public comment upon the creation of a DAM restricted zone, the 
aggregated right whales would be vulnerable to entanglement which could 
result in serious injury and mortality. Additionally, 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 prior 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/pot 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 cause serious injury and mortality. Additionally, right whales 
would likely move to another location between the time NMFS approved 
the action creating the DAM restricted zone and the time it went into 
effect, thereby rendering the action obsolete and ineffective. 
Nevertheless, NMFS recognizes the need for fishermen to have time to 
either modify or remove (if not in compliance with the required 
restrictions) their gear from a DAM zone once one is approved. Thus, 
NMFS made the restrictions in the DAM zone that were provided in the 
Federal Register on February 25, 2004, effective 2 days after the date 
of publication of notice in the Federal Register. NMFS also provided 
notice of that action to fishermen through other means as soon as the 
AA approved it, thereby providing approximately 3 additional days of 
notice while the Office of the Federal Register processed the document 
for publication. The action in this Federal Register notice lifts 
restrictions from the February 25, 2004, Federal Register notice that 
would have overlapped with SAM West. Therefore, no further delay in 
effective date is necessary or appropriate.
    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 and March 2003, the Assistant Secretary for 
Intergovernmental and Legislative Affairs, DOC, provided notice of the 
DAM program and its amendments 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 
rules implementing the DAM program. A copy of the federalism Summary 
Impact Statement for the final rules is available upon request 
(ADDRESSES).
    The rule implementing the DAM program 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: February 26, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-4621 Filed 3-1-04; 8:45 am]
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