[Federal Register Volume 74, Number 19 (Friday, January 30, 2009)]
[Rules and Regulations]
[Pages 5621-5623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2018]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 090115024-9027-01]
RIN 0648-XM80


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.

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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, 
announces temporary restrictions consistent with the requirements of 
the Atlantic Large Whale Take Reduction Plan's (ALWTRP) implementing 
regulations. These regulations apply to lobster trap/pot and anchored 
gillnet fishermen for 15 days in an area totaling approximately 1,725 
nm\2\ (5,917 km\2\) east of Portsmouth, New Hampshire. 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 February 2, 2009, through 2400 
hours February 17, 2009.

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, 55 Great Republic 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 order to protect right whales and is

[[Page 5622]]

applicable to areas north of 42[deg] 30' N. lat. 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 nm2 (139 km2)) such that right whale density is equal to or 
greater than 0.04 right whales per nm2 (1.85 km2). 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 January 10, 2009, a vessel survey reported an aggregation of 7 
right whales in the general proximity of 43[deg] 02 N latitude and 
70[deg] 15' W longitude. The position lies 30nm east of Portsmouth, New 
Hampshire, in the vicinity of Jeffreys Ledge. After conducting an 
investigation, NMFS ascertained that the report came from a qualified 
individual and determined that the report was reliable. 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.
    The DAM zone is bounded by the following coordinates:
    43[deg] 24' N., 70[deg] 20' W. (NW Corner)
    43[deg] 24' N., 69[deg] 44' W.
    42[deg] 40' N., 69[deg] 44' W.
    42[deg] 40' N., 70[deg] 37' W. following the shoreline northward to
    42[deg] 41' N., 70[deg] 46' W.
    42[deg] 58' N., 70[deg] 46' W. following the shoreline northward to
    43[deg] 03' N., 70[deg] 44' W.
    43[deg] 04' N., 70[deg] 36' W.
    43[deg] 24' N., 70[deg] 20' 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 portions of 
Northern Inshore State Trap/Pot Waters, Northern Nearshore Trap/Pot 
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 sinking line. Floating groundlines 
are prohibited;
    2. All buoy lines must be made of sinking 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.

Anchored Gillnet Gear

    Fishermen utilizing anchored gillnet gear within the portions of 
the Other Northeast Gillnet Waters Area and the 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:
    1. Groundlines must be made of sinking line. Floating groundlines 
are prohibited;
    2. All buoy lines must be made of sinking 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. The breaking strength of each net panel weak link must not 
exceed 1,100 lb (498.8 kg). The weak link requirements apply to all 
variations in net panel size. One weak link must be placed in the 
center of the floatline and one weak link must be placed in the center 
of each of the up and down lines at both ends of the net panel. 
Additionally, one weak link must be placed as close as possible to each 
end of the net panels on the floatline; or, one weak link must be 
placed between floatline tie-loops between net panels and one weak link 
must be placed where the floatline tie-loops attach to the bridle, buoy 
line, or groundline at each end of a net string;
    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 February 
2, 2009, through 2400 hours February 17, 2009, 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.
    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

[[Page 5623]]

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: January 15, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-2018 Filed 1-27-09; 4:15 pm]
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