Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 70321-70323 [06-9499]
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Federal Register / Vol. 71, No. 232 / Monday, December 4, 2006 / Rules and Regulations
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
VerDate Aug<31>2005
12:11 Dec 01, 2006
Jkt 211001
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)
70321
(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
Dated: November 29, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 06–9500 Filed 11–29–06; 2:35 pm]
Several of the background documents
for the ALWTRP and the take reduction
planning process can be downloaded
from the ALWTRP Web site at https://
www.nero.noaa.gov/whaletrp/.
BILLING CODE 3510–22–S
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° 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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 229
[Docket No. 030221039–6317–35; I.D.
110806C]
Taking of Marine Mammals Incidental
to Commercial Fishing Operations;
Atlantic Large Whale Take Reduction
Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; extension of
temporary area and gear restrictions.
AGENCY:
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 1,549 nm2 (5,312
km2), south of Portland, ME, 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 3,
2006, through 2400 hours December 17,
2006.
ADDRESSES: Copies of the proposed and
final Dynamic Area Management (DAM)
rules, Environmental Assessments
PO 00000
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Background
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70322
Federal Register / Vol. 71, No. 232 / Monday, December 4, 2006 / Rules and Regulations
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 November 5, 2006, an aerial
survey reported a sighting of 4 right
whales in the proximity 43° 07′ N. lat.
and 70° 10′ W. long. This position lies
south of the 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
will determine 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 66690) to
announce the establishment of a DAM
zone with restrictions on anchored
gillnet and lobster trap gear for a 15-day
period. On November 27, 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 km2)
continues to be met. Therefore, in order
to further protect the right whales in
this DAM zone, pursuant to 50 CFR
VerDate Aug<31>2005
12:11 Dec 01, 2006
Jkt 211001
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° 52′ N., 68° 56′ W. (NW Corner)
43° 52′ N., 67° 58′ W.
43° 09′ N., 67° 58′ W.
43° 09′ N., 68° 56′ W.
43° 52′ N., 68° 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, Northern
Nearshore Lobster Waters and
Stellwagen Bank/Jeffreys Ledge 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.
PO 00000
Frm 00048
Fmt 4700
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Anchored Gillnet Gear
Fishermen utilizing anchored gillnet
gear within the portions of the Other
Northeast Gillnet Waters Area 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:
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 3,
2006, through 2400 hours December 17,
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
Web site, 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 (EAs) for
the DAM program were prepared on
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Federal Register / Vol. 71, No. 232 / Monday, December 4, 2006 / Rules and Regulations
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 document
VerDate Aug<31>2005
12:11 Dec 01, 2006
Jkt 211001
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: November 29, 2006.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
RegulatoryPrograms, National Marine
Fisheries Service.
[FR Doc. 06–9499 Filed 11–29–06; 2:35 pm]
BILLING CODE 3510–22–S
PO 00000
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Fmt 4700
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70323
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 060216045–6045–01; I.D.
112806A]
Fisheries of the Exclusive Economic
Zone Off Alaska; Greenland Turbot in
the Bering Sea and Aleutian Islands
Management Area
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Modification of a closure.
AGENCY:
SUMMARY: NMFS is reopening directed
fishing for Greenland turbot for vessels
using hook-and-line gear in the Bering
Sea subarea in the Bering Sea and
Aleutian Islands management area
(BSAI). This action is necessary to fully
use the 2006 total allowable catch (TAC)
of Greenland turbot for vessels using
hook-and-line gear in the Bering Sea
subarea in the Bering Sea and Aleutian
Islands (BSAI).
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), November 29, 2006,
through 2400 hrs, A.l.t., December 31,
2006. Comments must be received no
later than 4:30 p.m., A.l.t., December 14,
2006.
ADDRESSES: Send comments to Sue
Salveson, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Walsh. Comments may be
submitted by:
• Mail to: P.O. Box 21668, Juneau, AK
99802;
• Hand delivery to the Federal
Building, 709 West 9th Street, Room
420A, Juneau, Alaska;
• Fax to 907–586–7557;
• E-mail to turbot@noaa.gov and
include in the subject line of the e-mail
comment the document identifier:
‘‘bsturbotro.fo.wpd’’ (E-mail comments,
with or without attachments, are limited
to 5 megabytes); or
• Webform at the Federal
eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions at that site for submitting
comments.
FOR FURTHER INFORMATION CONTACT:
Jennifer Hogan, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI according to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) prepared by
E:\FR\FM\04DER1.SGM
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]]>Agencies
[Federal Register Volume 71, Number 232 (Monday, December 4, 2006)]
[Rules and Regulations]
[Pages 70321-70323]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9499]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 030221039-6317-35; I.D. 110806C]
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 1,549 nm\2\ (5,312 km\2\), south of Portland, ME, 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 3, 2006, through 2400 hours December 17, 2006.
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 https://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
[[Page 70322]]
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 November 5, 2006, an aerial survey reported a sighting of 4
right whales in the proximity 43[deg] 07' N. lat. and 70[deg] 10' W.
long. This position lies south of the 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 will determine 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
66690) to announce the establishment of a DAM zone with restrictions on
anchored gillnet and lobster trap gear for a 15-day period. On November
27, 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\) 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, Northern Nearshore Lobster
Waters and Stellwagen Bank/Jeffreys Ledge 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 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:
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 3, 2006, through 2400 hours December 17, 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 Web site, 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 (EAs) for the DAM program were prepared
on
[[Page 70323]]
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 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: November 29, 2006.
Samuel D. Rauch, III,
Deputy Assistant Administrator for RegulatoryPrograms, National Marine
Fisheries Service.
[FR Doc. 06-9499 Filed 11-29-06; 2:35 pm]
BILLING CODE 3510-22-S
