Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 43186-43188 [07-3810]
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43186
Federal Register / Vol. 72, No. 149 / Friday, August 3, 2007 / Rules and Regulations
not constitute a conclusion by NMFS
that those participating in the fishery
are illegally taking sea turtles.
I
4. In § 223.206, the second sentence of
paragraph (d)(4)(iv) is revised to read as
follows:
Borggaard, NMFS/Northeast Region,
One Blackburn Drive, Gloucester, MA
01930.
§ 222.403
date.
§ 223.206 Exceptions to prohibitions
relating to sea turtles.
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:
Duration of selection; effective
(a) Fisheries included in the final
annual determination in a given year
will remain eligible for observer
coverage under this rule for five years,
without need for NMFS to include the
fishery in the intervening proposed
annual determinations, to enable the
design of an appropriate sampling
program and to ensure collection of
scientific data. If NMFS wishes to
continue observations beyond the fifth
year, NMFS must include the fishery in
the proposed annual determination and
seek comment, prior to the expiration of
the fifth year.
(b) A 30–day delay in effective date
for implementing observer coverage will
follow the annual notification, except
for those fisheries that were included in
a previous determination within the
preceding five years or where the AA
has determined that there is good cause
pursuant to the Administrative
Procedure Act to make the rule effective
without a 30–day delay.
§ 222.404
(a) During the program design, NMFS
would be guided by the following
standards in the distribution and
placement of observers among fisheries
and vessels in a particular fishery:
(1) The requirements to obtain the
best available scientific information;
(2) The requirement that assignment
of observers is fair and equitable among
fisheries and among vessels in a fishery;
(3) The requirement that no
individual person or vessel, or group of
persons or vessels, be subject to
inappropriate, excessive observer
coverage; and
(4) The need to minimize costs and
avoid duplication, where practicable.
(b) Consistent with 16 U.S.C. 1881(b),
vessels where the facilities for
accommodating an observer or carrying
out observer functions are so inadequate
or unsafe (due to size or quality of
equipment, for example) that the health
or safety of the observer or the safe
operation of the vessel would be
jeopardized, would not be required to
take observers under this rule.
rmajette on PROD1PC64 with RULES
PART 223—THREATENED MARINE
AND ANADROMOUS SPECIES
3. The authority citation for part 223
continues to read as follows:
I
Authority: 16 U.S.C. 1531–1543; subpart B,
§ 223.201–202 also issued under 16 U.S.C.
1361 et seq.; 16 U.S.C. 5503(d) for
§ 223.206(d)(9).
15:45 Aug 02, 2007
Jkt 211001
*
*
*
*
(d) * * *
(4) * * *
(iv) Procedures. * * * An emergency
notification will be effective for a period
of up to 30 days and may be renewed
for additional periods of up to 30 days
each, except that emergency placement
of observers will be effective for a
period of up to 180 days and may be
renewed for an additional period of 60
days. * * *
*
*
*
*
*
[FR Doc. E7–15145 Filed 8–2–07; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 229
[Docket No. 070726420–7421–01]
RIN 0648–XB74
Observer program sampling.
VerDate Aug<31>2005
*
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.
AGENCY:
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 in
an area totaling approximately 3,530
nm2 (12,108 km2), southeast of
Chatham, Massachusetts, for 15 days.
The purpose of this action is to provide
protection to an aggregation of northern
right whales (right whales).
DATES: Effective beginning at 0001 hours
August 5, 2007, through 2400 hours
August 19, 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
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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° 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.
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Federal Register / Vol. 72, No. 149 / Friday, August 3, 2007 / Rules and Regulations
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 July 24, 2007, an aerial survey
reported three aggregations of right
whales, totaling thirty individuals in the
proximity of 41° 23′ N latitude and 68°
50′ W longitude. The positions lie
approximately 54nm southeast of
Chatham, MA. 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 bound by the
following coordinates:
42° 00′ N., 69° 24′ W (NW Corner)
42° 00′ N., 68° 08′ W
40° 58′ N., 68° 08′ W
40° 58′ N., 69° 24′ W
42° 00′ N., 69° 24′ W (NW Corner)
In addition to those gear
modifications currently implemented
under the ALWTRP at 50 CFR 229.32,
VerDate Aug<31>2005
15:45 Aug 02, 2007
Jkt 211001
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 the year-round
Closure Area I for Northeast
Multispecies found at 50 CFR 648.81(a).
Due to this closure, sink gillnet gear is
prohibited from this portion of the DAM
zone.
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 and Great South
Channel Restricted Lobster Area that
overlap with the DAM zone are required
to utilize all of the following gear
modifications while the DAM zone is in
effect:
1. Groundlines must be made of either
sinking or neutrally buoyant line.
Floating groundlines are prohibited;
2. All buoy lines must be made of
either sinking or neutrally buoyant line,
except the bottom portion of the line,
which may be a section of floating line
not to exceed one-third the overall
length of the buoy line;
3. Fishermen are allowed to use two
buoy lines per trawl; and
4. A weak link with a maximum
breaking strength of 1,500 lb (680.4 kg)
must be placed at all buoys.
Anchored Gillnet Gear
Fishermen utilizing anchored gillnet
gear within the portions of the Other
Northeast Gillnet Waters Area, Great
South Channel Restricted Gillnet Area,
and Great South Channel Sliver
Restricted Area that overlap with the
DAM zone are required to utilize all the
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43187
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 August 5, 2007,
through 2400 hours August 19, 2007,
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
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Federal Register / Vol. 72, No. 149 / Friday, August 3, 2007 / Rules and Regulations
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
VerDate Aug<31>2005
15:45 Aug 02, 2007
Jkt 211001
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: July 30, 2007.
John Oliver,
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
[FR Doc. 07–3810 Filed 7–31–07; 3:13 pm]
BILLING CODE 3510–22–S
PO 00000
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 0612243158–7219–02 ; I.D.
031307C]
RIN 0648–AU51
Magnuson-Stevens Act Provisions;
Fisheries of the Northeastern United
States; Northeast Fisheries;
Regulatory Amendment to Reconcile
State and Federal Commercial Fishing
Vessel Permit Programs
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
SUMMARY: NMFS is implementing
regulations to modify the permitting and
vessel replacement provisions for
Federal limited access permit programs
of the Northeastern United States,
excluding American lobster. This action
is intended to prevent fishing effort
beyond what is accounted for in the
fishery management plans (FMPs) for
each fishery and to reinforce efforts
undertaken by state fishery management
agencies at targeting regulations
specifically for vessels that participate
wholly in state water fisheries. These
measures are necessary to meet the
conservation and management
requirements of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act).
DATES: Effective September 4, 2007,
except for 648.4(a)(1)(i)(E) and
648.14(a)(179), which will be effective
January 1, 2008.
ADDRESSES: Copies of this regulatory
amendment, its Regulatory Impact
Review (RIR), the Final Regulatory
Flexibility Analysis (FRFA), and the
Environmental Assessment (EA) are
available from Patricia A. Kurkul,
Regional Administrator, National
Marine Fisheries Service, 1 Blackburn
Drive, Gloucester, MA 01930. A copy of
the RIR/FRFA and the small entity
compliance guide is also accessible via
the Internet at
https://www.nero.noaa.gov/.
FOR FURTHER INFORMATION CONTACT:
Brian Hooker, Fishery Policy Analyst,
phone: (978) 281–9220, fax: (978) 281–
9135.
SUPPLEMENTARY INFORMATION:
Background
State and Federal FMPs governing
fisheries for the same species may differ
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]]>Agencies
[Federal Register Volume 72, Number 149 (Friday, August 3, 2007)]
[Rules and Regulations]
[Pages 43186-43188]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3810]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 070726420-7421-01]
RIN 0648-XB74
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.
-----------------------------------------------------------------------
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 in an area totaling approximately 3,530 nm\2\ (12,108
km\2\), southeast of Chatham, Massachusetts, for 15 days. The purpose
of this action is to provide protection to an aggregation of northern
right whales (right whales).
DATES: Effective beginning at 0001 hours August 5, 2007, through 2400
hours August 19, 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 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] 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.
[[Page 43187]]
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 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 July 24, 2007, an aerial survey reported three aggregations of
right whales, totaling thirty individuals in the proximity of 41[deg]
23' N latitude and 68[deg] 50' W longitude. The positions lie
approximately 54nm southeast of Chatham, MA. 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 bound by the following coordinates:
42[deg] 00' N., 69[deg] 24' W (NW Corner)
42[deg] 00' N., 68[deg] 08' W
40[deg] 58' N., 68[deg] 08' W
40[deg] 58' N., 69[deg] 24' W
42[deg] 00' N., 69[deg] 24' 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. Special note for
gillnet fisherman: A portion of this DAM zone overlaps the year-round
Closure Area I for Northeast Multispecies found at 50 CFR 648.81(a).
Due to this closure, sink gillnet gear is prohibited from this portion
of the DAM zone.
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 and Great South Channel Restricted Lobster
Area that overlap with the DAM zone are required to utilize all of the
following gear modifications while the DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 1,500 lb (680.4
kg) must be placed at all buoys.
Anchored Gillnet Gear
Fishermen utilizing anchored gillnet gear within the portions of
the Other Northeast Gillnet Waters Area, Great South Channel Restricted
Gillnet Area, and Great South Channel Sliver 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 August
5, 2007, through 2400 hours August 19, 2007, 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
[[Page 43188]]
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: July 30, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 07-3810 Filed 7-31-07; 3:13 pm]
BILLING CODE 3510-22-S
