Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP), 2367-2369 [05-750]

Download as PDF Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration 49 CFR Parts 171, 172, 173, and 175 [Docket No. RSPA–04–19886 (HM–224E)] RIN 2137–AE05 Hazardous Materials; Prohibition on the Transportation of Primary Lithium Batteries and Cells Aboard Passenger Aircraft; Notice of Public Meeting Research and Special Programs Administration (RSPA), DOT. ACTION: Notice of public meeting. AGENCY: This notice announces a public meeting to be held on January 27, 2005, to solicit public comments on amendments to the Hazardous Materials Regulations adopted by RSPA in an interim final rule published on December 15, 2004. This interim final rule imposed a limited prohibition on offering for transportation and transportation of primary (nonrechargeable) lithium batteries and cells as cargo aboard passenger-carrying aircraft. DATES: Comments date. Submit comments for presentation at the public meeting by January 20, 2005. We will consider comments received during this public meeting in making our decision on a final rule. Submit comments on the interim final rule by February 14, 2005. Public Meeting Date. The public meeting will be held from 9:30 a.m. to 4 p.m. on Thursday, January 27, 2005. ADDRESSES: Public Meeting. The public meeting will be held in Room 2230 at the U.S. Department of Transportation Headquarters Building, 400 Seventh Street, SW., Washington, DC. For information on facilities or services for persons with disabilities or to request special assistance at the meeting, please contact Mr. Darral Relerford at 202– 366–8553 as soon as possible. Comments. Written comments on the interim final rule may be submitted at the public meeting, or sent by mail to Dockets Management System, U.S. Department of Transportation PL–401, 400 Seventh Street, SW., Washington, DC 20590–0001. Comments should identify Docket Number RSPA–04– 19886 (HM–224E) and be submitted in 2 copies. Comments may also be hand delivered to PL–401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also provide electronic comments via the DOT Web site at: http:// SUMMARY: VerDate jul<14>2003 14:42 Jan 12, 2005 Jkt 205001 dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site. FOR FURTHER INFORMATION CONTACT: Darral Relerford (202) 366–8553, Office of Hazardous Materials Standards, (202) 366–8553, Research and Special Programs Administration: or John A. Gale, (202) 366–8553, Office of Hazardous Materials Standards, (202) 366–8553, Research and Special Programs Administration. Any person wishing to present an oral statement at the public meeting should notify Mr. Relerford before the public meeting. SUPPLEMENTARY INFORMATION: Background On December 15, 2004, the Research and Special Programs Administration (RSPA, we) published an interim final rule (IFR) (69 FR 75207) under Docket RSPA–04–19886 (HM–224E) imposing a limited prohibition on offering for transportation and transportation of primary (non-rechargeable) lithium batteries and cells as cargo aboard passenger-carrying aircraft and equipment containing or packed with large primary lithium batteries. These prohibitions took effect on December 29, 2004. The IFR applies to both foreign and domestic passenger-carrying aircraft entering, leaving, or operating in the United States and to persons offering primary lithium batteries and cells for transportation as cargo on any passenger-carrying aircraft. The IFR allows the carriage of lithium batteries or devices containing lithium batteries that are transported for personal use by a passenger in carry-on or checked luggage, with certain limits. In addition, the IFR allows the shipment of equipment that contains or is packed with small primary lithium batteries with certain limits, and the continued shipment of secondary (rechargeable) lithium batteries (e.g., lithium ion batteries). The IFR also requires packages of primary lithium batteries and cells that are excepted from classification as a Class 9 (miscellaneous) hazardous material, to be marked when offered for transport as cargo in any mode, to indicate that they are forbidden for transport aboard passenger-carrying aircraft. Public Meeting To facilitate public comments on the IFR, we are hosting a public meeting on January 27, 2005. The public meeting will provide an informal forum for interested persons to offer comments on the HM–224E IFR. A transcript of this meeting will be prepared and submitted to the docket. We anticipate significant PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 2367 public interest in this rulemaking; therefore, we ask that you limit your remarks to 10 minutes to assure that all participants have an opportunity to speak. The meeting may conclude earlier than scheduled if all persons wishing to offer comments have been heard. Issued in Washington, DC on January 7, 2005. Frits Wybenga, Deputy Associate Administrator for Hazardous Materials Safety. [FR Doc. 05–736 Filed 1–12–05; 8:45 am] BILLING CODE 4910–60–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 030221039–5006–17; I.D. 010705A] Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP) National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule. AGENCY: 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 1,889 square nautical miles (nm2) (6,479.1 km2), east of Portland, ME, 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 January 15, 2005, through 2400 hours January 29, 2005. 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, 978–281–9328 x6503; or Kristy E:\FR\FM\13JAR1.SGM 13JAR1 2368 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 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 nonendangered 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° 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 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 VerDate jul<14>2003 14:42 Jan 12, 2005 Jkt 205001 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 4, 2005, an aerial-based survey reported a sighting of 24 right whales in the proximity 43° 23.7′ N. latitude and 68° 13′ W. longitude. This position lies east of Portland, ME. 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. Because the January 4 right whale sightings occurred within the area of a previously identified DAM zone triggered by the December 6, 2004, aerial-based sighting of 7 right whales (69 FR 75862, December 20, 2004), the coordinates for this DAM zone will encompass the same area, which is bound by the following coordinates: 43°45′N, 68°32′W (NW Corner) 43°45′N, 67°30′W 43°33′N, 67°30′W following the Hague line south to 43°00′N, 67°42′W 43°00′N, 68°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 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Special note for gillnet fisherman: A portion of this DAM zone overlaps with the Harbor Porpoise Take Reduction Plan’s Offshore Closure Area. This DAM action does not supersede the Harbor Porpoise Take Reduction Plan regulations found at 50 CFR 229.33. Lobster Trap/Pot Gear Fishermen utilizing lobster trap/pot gear within the portion of the 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 portion of the Other Northeast Gillnet Waters 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, E:\FR\FM\13JAR1.SGM 13JAR1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 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. The restrictions will be in effect beginning at 0001 hours January 15, 2005, through 2400 hours January 29, 2005, 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, VerDate jul<14>2003 14:42 Jan 12, 2005 Jkt 205001 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 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 2369 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: January 10, 2005. Rebecca Lent, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 05–750 Filed 1–10–05; 4:36 pm] BILLING CODE 3510–22–S E:\FR\FM\13JAR1.SGM 13JAR1

Agencies

[Federal Register Volume 70, Number 9 (Thursday, January 13, 2005)]
[Rules and Regulations]
[Pages 2367-2369]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-750]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030221039-5006-17; I.D. 010705A]


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 1,889 square nautical miles (nm\2\) (6,479.1 km\2\), east 
of Portland, ME, 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 January 15, 2005, through 2400 
hours January 29, 2005.

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, 978-281-9328 x6503; or Kristy

[[Page 2368]]

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 January 4, 2005, an aerial-based survey reported a sighting of 
24 right whales in the proximity 43[deg] 23.7' N. latitude and 68[deg] 
13' W. longitude. This position lies east of Portland, ME. 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. Because the January 4 right whale 
sightings occurred within the area of a previously identified DAM zone 
triggered by the December 6, 2004, aerial-based sighting of 7 right 
whales (69 FR 75862, December 20, 2004), the coordinates for this DAM 
zone will encompass the same area, which is bound by the following 
coordinates:
    43[deg]45'N, 68[deg]32'W (NW Corner)
    43[deg]45'N, 67[deg]30'W
    43[deg]33'N, 67[deg]30'W following the Hague line south to
    43[deg]00'N, 67[deg]42'W
    43[deg]00'N, 68[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. Special note for 
gillnet fisherman: A portion of this DAM zone overlaps with the Harbor 
Porpoise Take Reduction Plan's Offshore Closure Area. This DAM action 
does not supersede the Harbor Porpoise Take Reduction Plan regulations 
found at 50 CFR 229.33.

Lobster Trap/Pot Gear

    Fishermen utilizing lobster trap/pot gear within the portion of the 
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 portion of the 
Other Northeast Gillnet Waters 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,

[[Page 2369]]

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.
    The restrictions will be in effect beginning at 0001 hours January 
15, 2005, through 2400 hours January 29, 2005, 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: January 10, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 05-750 Filed 1-10-05; 4:36 pm]
BILLING CODE 3510-22-S