[Federal Register Volume 71, Number 242 (Monday, December 18, 2006)]
[Rules and Regulations]
[Pages 75679-75681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9753]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030221039-6332-38; I.D. 110806D]


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; extension of temporary area and gear 
restrictions.

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

SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, 
announces the extension of temporary restrictions consistent with the 
requirements of the Atlantic Large Whale Take Reduction Plan's (ALWTRP) 
implementing regulations. These restrictions will continue to apply to 
lobster trap and anchored gillnet fishermen in an area totaling 
approximately 1,809 nm\2\ (6,204 km\2\), east of Portland, Maine, for 
an additional 15 days. The purpose of this action is to provide 
immediate protection to an aggregation of Northern right whales (right 
whales).

DATES: This notice extends the restricted period from 0001 hours 
December 18, 2006, through 2400 hours January 1, 2007.

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.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast 
Region, 978-281-9300 x6503; or Kristy Long, 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.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) due to incidental interaction with commercial fishing 
activities. In addition, the measures identified in the ALWTRP would 
provide conservation benefits to a fourth species (minke), which are 
neither listed as endangered nor threatened under the Endangered 
Species Act (ESA). 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]00' 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

[[Page 75680]]

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 5, 2006, an aerial survey reported a sighting of 13 
right whales in the proximity 43[deg]29' N. lat. and 68[deg]27' W. 
long. This position lies east of Portland, Maine. After conducting an 
investigation, NMFS ascertained that the report came from a qualified 
individual and determined that the report was reliable. Thus, NMFS 
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, in 
the zone, restrictions on fishing and/or fishing gear. 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 options and factors noted above and on November 
16, 2006, published a temporary rule in the Federal Register (71 FR 
66688) to announce the establishment of a DAM zone with restrictions on 
anchored gillnet and lobster trap gear for a 15-day period. On November 
26, 2006, a subsequent survey conducted over the DAM zone indicated 
that 8 whales were still present in the area and the DAM zone trigger 
of 0.04 right whales per square nautical mile (1.85 km\2\) continued to 
be met. NMFS reviewed the options and factors noted above and on 
December 4, 2006, published a temporary rule in the Federal Register 
(71 FR 70319) to extend the DAM zone with restrictions on anchored 
gillnet and lobster trap gear for a 15-day period. On December 11, 
2006, another survey conducted over the DAM zone indicated that 18 
whales remain within the area, again indicating the DAM zone trigger of 
0.04 right whales per square nautical mile (1.85 km\2\) continues to be 
met. Therefore, in order to further protect the right whales in this 
DAM zone, pursuant to 50 CFR 229.32(g)(3)(v), NMFS is exercising its 
authority to extend the restrictions on lobster trap and anchored 
gillnet gear for an additional 15-day period.
    The DAM zone is bound by the following coordinates:

43[deg]52' N., 68[deg]56' W. (NW Corner)
43[deg]52' N., 67[deg]58' W.
43[deg]09' N., 67[deg]58' W.
43[deg]09' N., 68[deg]56' W.
43[deg]52' N., 68[deg]56' W. (NW Corner)

    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 Inshore State Lobster Waters and Northern Nearshore Lobster 
Waters 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 portions of 
the Other Northeast Gillnet Waters 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 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;
    5. A weak link with a maximum breaking strength of 1,100 lb (498.8 
kg) must be placed at all buoys; and
    6. 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, 
December 20, 2006, through 2400 hours January 1, 2006, 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 
issuance of the rule by the AA.

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.

[[Page 75681]]

    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 document in the Federal Register. NMFS will also endeavor to 
provide notice of this action to fishermen through other means upon 
issuance of the rule by the AA, 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, Department of Commerce, 
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: December 13, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 06-9753 Filed 12-13-06; 3:25 pm]
BILLING CODE 3510-22-P