[Federal Register Volume 69, Number 140 (Thursday, July 22, 2004)]
[Rules and Regulations]
[Pages 43772-43774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16738]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030221039-4208-11; I.D. 071504D]


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 apply to 
lobster trap/pot and anchored gillnet fishermen in an area totaling 
approximately 1,638 square nautical miles (nm\2\) (5,618 km\2\) in July 
and approximately 1,688 square nautical miles (nm\2\) (5,790 km\2\) in 
August, east of Cape Cod, MA 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 July 24, 2004, through 2400 
hours August 7, 2004.

ADDRESSES: Copies of the proposed and final Dynamic Area Management 
(DAM) 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.

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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 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 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 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 July 11, 2004, NMFS Aerial Survey Team reported a sighting of 
four right whales in the proximity of 41[deg] 33' N lat. and 68[deg] 
38' 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.
    NMFS has reviewed the factors and management options noted above 
relative to the DAM under consideration. As a result of this review, 
NMFS prohibits 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. Through July 31, 2004, the DAM zone 
and restrictions include waters bounded by the following coordinates:
    41[deg]53'N, 69[deg]06'W (NW Corner)
    41[deg]53'N, 68[deg]21.5'W
    41[deg]45'N, 68[deg]17'W
    41[deg]45'N, 68[deg]11'W
    41[deg]12'N, 68[deg]11'W
    41[deg]12'N, 69[deg]06'W
    In July, the DAM zone excludes areas of overlap within the Seasonal 
Area Management (SAM) East area. On August 1, 2004, due to the 
termination of the gear restrictions within the SAM East area, the DAM 
zone and restrictions will be expanded to include the waters bounded by 
the following coordinates:
    41[deg] 53'N , 69[deg] 06'W (NW Corner)
    41[deg] 53'N, 68[deg] 11'W
    41[deg] 12'N, 68[deg] 11'W
    41[deg] 12'N, 69[deg] 06'W
    41[deg] 53'N, 69[deg] 06'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. Special note for 
gillnet fisherman: The southwest corner of this DAM zone overlaps the 
year round Northeast Multispecies' Closed Area I. This DAM action does 
not supersede Northeast multispecies closures found at 50 CFR 648.81.

Lobster Trap/Pot Gear

    Fishermen utilizing lobster trap/pot gear within the portion of the 
Offshore Lobster Waters Area and the Great South Channel Restricted 
Lobster 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 the Great South Channel Restricted 
Gillnet Area that overlap with the DAM zone are required to utilize all 
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 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

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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.
    The restrictions will be in effect beginning at 0001 hours July 24, 
2004, through 2400 hours August 7, 2004, unless terminated sooner or 
extended by NMFS through another notification in the Federal Register.
    The restrictions will be announced to state officials, fishermen, 
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.
    Environmental Assessments for the DAM program were prepared on 
December 28, 2001, and August 6, 2003. This action falls within the 
scope of the analyses of these EAs, which are available from the agency 
upon request.
    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 makes this action effective 2 days after the date of publication 
of this notice in the Federal Register. NMFS will also endeavor to 
provide notice of this action to fishermen through other means as soon 
as the AA approves it, thereby providing approximately 3 additional 
days of notice while the Office of the Federal Register processes the 
document for publication.
    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: July 19, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-16738 Filed 7-19-04; 3:12 pm]
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