Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 60640-60642 [E8-24272]

Download as PDF 60640 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Rules and Regulations notice and opportunity to comment are impracticable and contrary to the public interest in this instance because providing notice and comment would prevent the agency from providing the affected industry relief from the effects of Hurricane Ike in a timely manner, while continuing to provide effective protection for sea turtles. Many fishermen may be unable to operate under the special environmental conditions created by Hurricane Ike without an alternative to the use of TEDs. Therefore, the AA finds that there is good cause to waive the 30–day delay in effective date pursuant to 5 U.S.C. 553(d)(3) to provide alternatives to comply with the sea turtle regulations in a timely manner. For the reasons above, the AA finds that this temporary rule should not be subject to a 30–day delay in effective date, pursuant to 5 U.S.C. 553(d)(1). Since prior notice and an opportunity for public comment are not required to be provided for this action by 5 U.S.C. 553, or by any other law, the analytical requirements of 5 U.S.C. 601 et seq. are inapplicable. Dated: October 7, 2008. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. E8–24280 Filed 10–8–08; 4:15 am] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 0810071323–81326–01] RIN 0648–XL09 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. ebenthall on PROD1PC60 with RULES 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 1,445 nm2 (4,956 km2), southeast of Portland, Maine for 15 days. The purpose of this VerDate Aug<31>2005 15:35 Oct 10, 2008 Jkt 217001 action is to provide protection to an aggregation of northern right whales (right whales). DATES: Effective beginning at 0001 hours October 16, 2008, through 2400 hours November 1, 2008. ADDRESSES: Copies of the proposed and final Dynamic Area Management (DAM) rules, Environmental Assessments (EAs), Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and progress reports on implementation of the ALWTRP may also be obtained by writing Diane Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 01930. FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast Region, 978–281–9300 x6503; or Kristy Long, NMFS, Office of Protected Resources, 301–713–2322. SUPPLEMENTARY INFORMATION: Electronic Access Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http:// www.nero.noaa.gov/whaletrp/. Background The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result). On January 9, 2002, NMFS published the final rule to implement the ALWTRP’s DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/ pot and anchored gillnet fishing gear in order to protect right whales and is applicable to areas north of 42°30’ N. PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 lat. Under the DAM program, NMFS may: (1) require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15–day period; (2) allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15–day period and asking fishermen not to set any additional gear in the DAM zone during the 15–day period. A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm2 (257 km2)) such that right whale density is equal to or greater than 0.04 right whales per nm2 (3.43 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 October 6, 2008, an aerial survey reported an aggregation of four right whales in the proximity of 43° 00’ N. lat. and 69° 58’ W. long. The position lies approximately 40 nm southeast of Portland, Maine. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS 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 E:\FR\FM\14OCR1.SGM 14OCR1 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Rules and Regulations ebenthall on PROD1PC60 with RULES 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: 43° 19′ N., 70° 25′ W. (NW Corner) 43° 19′ N., 69° 33′ W. 42° 41′ N., 69° 33′ W. 42° 41′ N., 70° 25′ W. 43° 19′ N., 70° 25′ 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 Western Gulf of Maine Closure Area for Northeast Multispecies found at 50 CFR 648.81(e). 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 portions of Northern Inshore State Trap/Pot Waters and Northern Nearshore Trap/Pot Waters, and the Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of sinking line. Floating groundlines are prohibited; 2. All buoy lines must be made of sinking line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys. Fishermen utilizing lobster trap/pot gear within the portions of Offshore Trap/Pot 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 sinking line. Floating groundlines are prohibited; 2. All buoy lines must be made of sinking line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and VerDate Aug<31>2005 15:35 Oct 10, 2008 Jkt 217001 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 Other Northeast Gillnet Waters and the Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of sinking line. Floating groundlines are prohibited; 2. All buoy lines must be made of sinking line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per string; 4. The breaking strength of each net panel weak link must not exceed 1,100 lb (498.8 kg). The weak link requirements apply to all variations in net panel size. One weak link must be placed in the center of the floatline and one weak link must be placed in the center of each of the up and down lines at both ends of the net panel. Additionally, one weak link must be placed as close as possible to each end of the net panels on the floatline; or, one weak link must be placed between floatline tie-loops between net panels and one weak link must be placed where the floatline tie-loops attach to the bridle, buoy line, or groundline at each end of a net string; 5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and 6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string. The restrictions will be in effect beginning at 0001 hours October 16, 2008, through 2400 hours November 1, 2008, 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 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 60641 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 the effective date of this action for 30 days, 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 E:\FR\FM\14OCR1.SGM 14OCR1 60642 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Rules and Regulations 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. ebenthall on PROD1PC60 with RULES Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3) Dated: October 7, 2008. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. E8–24272 Filed 10–8–08; 4:15 pm] BILLING CODE 3510–22–S VerDate Aug<31>2005 15:35 Oct 10, 2008 Jkt 217001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 060824226–6322–02] RIN 0648–AX30 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Biennial Specifications and Management Measures; Inseason Adjustments National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; inseason adjustments to groundfish management measures; request for comments. AGENCY: SUMMARY: This final rule announces inseason changes to management measures in the Pacific Coast groundfish fisheries including: trip limit adjustments; the reopening of the Pacific whiting primary seasons for the shore-based, catcher/processor, and mothership sectors; bycatch limit increases; and modifications to the trawl Rockfish Conservation Areas. These routine actions, are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), and are intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks. DATES: Effective 0001 hours (local time) October 10, 2008. Comments on this action must be received no later than October 29, 2008. ADDRESSES: You may submit comments, identified by RIN 0648–AX30 by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http:// www.regulations.gov. • Fax: 206–526–6736, Attn: Becky Renko. • Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, Attn: Becky Renko, 7600 Sand Point Way NE, Seattle, WA 98115–0070. Instructions: All comments received are a part of the public record and will generally be posted to http:// www.regulations.gov without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information, or otherwise sensitive or PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 protected information. NMFS will accept anonymous comments (enter N/ A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Copies of additional reports referred to in this document may also be obtained from the Pacific Fishery Management Council(Council). Copies of the Record of Decision (ROD), final regulatory flexibility analysis (FRFA), and the Small Entity Compliance Guide are available from D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, NE, Seattle, WA 98115–0070. FOR FURTHER INFORMATION CONTACT: Becky Renko (Northwest Region, NMFS) 206–526–6110. SUPPLEMENTARY INFORMATION: Electronic Access: This final rule is accessible via the Internet at the Office of the Federal Register’s Website at http:// www.gpoaccess.gov/fr/. Background information and documents are available at the Council’s website at http://www.pcouncil.org/. Background The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subpart G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Council and are implemented by NMFS. A proposed rule to implement the 2007 2008 specifications and management measures for the Pacific Coast groundfish fishery and Amendment 16 4 of the FMP was published on September 29, 2006 (71 FR 57764). The final rule to implement the 2007 2008 specifications and management measures for the Pacific Coast Groundfish Fishery was published on December 29, 2006 (71 FR 78638). These specifications and management measures are codified in 50 CFR part 660, subpart G. The final rule was subsequently amended on: March 20, 2007 (72 FR 13043); April 18, 2007 (72 FR 19390); July 5, 2007 (72 FR 36617); August 3, 2007 (72 FR 43193); September 18, 2007 (72 FR 53165); October 4, 2007 (72 FR 56664); December 4, 2007 (72 FR 68097); December 18, 2007 (72 FR 71583); April 18, 2008 (73 FR 21057), and July 24, 2008 (73 FR 43139). Inseason adjustments to the current groundfish management measures were E:\FR\FM\14OCR1.SGM 14OCR1

Agencies

[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Rules and Regulations]
[Pages 60640-60642]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24272]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 0810071323-81326-01]
RIN 0648-XL09


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 1,445 nm\2\ (4,956 
km\2\), southeast of Portland, Maine 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 October 16, 2008, through 2400 
hours November 1, 2008.

ADDRESSES: Copies of the proposed and final Dynamic Area Management 
(DAM) rules, Environmental Assessments (EAs), Atlantic Large Whale Take 
Reduction Team (ALWTRT) meeting summaries, and progress reports on 
implementation of the ALWTRP may also be obtained by writing Diane 
Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 
01930.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast 
Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected 
Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP and the take 
reduction planning process can be downloaded from the ALWTRP web site 
at http://www.nero.noaa.gov/whaletrp/.

Background

    The ALWTRP was developed pursuant to section 118 of the Marine 
Mammal Protection Act (MMPA) to reduce the incidental mortality and 
serious injury of three endangered species of whales (right, fin, and 
humpback) due to incidental interaction with commercial fishing 
activities. In addition, the measures identified in the ALWTRP would 
provide conservation benefits to a fourth species (minke), which are 
neither listed as endangered nor threatened under the Endangered 
Species Act (ESA). The ALWTRP, implemented through regulations codified 
at 50 CFR 229.32, relies on a combination of fishing gear modifications 
and time/area closures to reduce the risk of whales becoming entangled 
in commercial fishing gear (and potentially suffering serious injury or 
mortality as a result).
    On January 9, 2002, NMFS published the final rule to implement the 
ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the 
regulations by publishing a final rule, which specifically identified 
gear modifications that may be allowed in a DAM zone (68 FR 51195). The 
DAM program provides specific authority for NMFS to restrict 
temporarily on an expedited basis the use of lobster trap/pot and 
anchored gillnet fishing gear in order to protect right whales and is 
applicable to areas north of 42[deg]30' N. lat. Under the DAM program, 
NMFS may: (1) require the removal of all lobster trap/pot and anchored 
gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot 
and anchored gillnet fishing within a DAM zone with gear modifications 
determined by NMFS to sufficiently reduce the risk of entanglement; 
and/or (3) issue an alert to fishermen requesting the voluntary removal 
of all lobster trap/pot and anchored gillnet gear for a 15-day period 
and asking fishermen not to set any additional gear in the DAM zone 
during the 15-day period.
    A DAM zone is triggered when NMFS receives a reliable report from a 
qualified individual of three or more right whales sighted within an 
area (75 nm\2\ (257 km\2\)) such that right whale density is equal to 
or greater than 0.04 right whales per nm\2\ (3.43 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 October 6, 2008, an aerial survey reported an aggregation of 
four right whales in the proximity of 43[deg] 00' N. lat. and 69[deg] 
58' W. long. The position lies approximately 40 nm southeast of 
Portland, Maine. After conducting an investigation, NMFS ascertained 
that the report came from a qualified individual and determined that 
the report was reliable. Thus, NMFS 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

[[Page 60641]]

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:
    43[deg] 19' N., 70[deg] 25' W. (NW Corner)
    43[deg] 19' N., 69[deg] 33' W.
    42[deg] 41' N., 69[deg] 33' W.
    42[deg] 41' N., 70[deg] 25' W.
    43[deg] 19' N., 70[deg] 25' 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 
Western Gulf of Maine Closure Area for Northeast Multispecies found at 
50 CFR 648.81(e). 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 portions of 
Northern Inshore State Trap/Pot Waters and Northern Nearshore Trap/Pot 
Waters, and the Stellwagen Bank/Jeffreys Ledge Restricted Area that 
overlap with the DAM zone are required to utilize all of the following 
gear modifications while the DAM zone is in effect:
    1. Groundlines must be made of sinking line. Floating groundlines 
are prohibited;
    2. All buoy lines must be made of sinking line, except the bottom 
portion of the line, which may be a section of floating line not to 
exceed one-third the overall length of the buoy line;
    3. Fishermen are allowed to use two buoy lines per trawl; and
    4. A weak link with a maximum breaking strength of 600 lb (272.4 
kg) must be placed at all buoys.
    Fishermen utilizing lobster trap/pot gear within the portions of 
Offshore Trap/Pot 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 sinking line. Floating groundlines 
are prohibited;
    2. All buoy lines must be made of sinking line, except the bottom 
portion of the line, which may be a section of floating line not to 
exceed one-third the overall length of the buoy line;
    3. Fishermen are allowed to use two buoy lines per trawl; and
    4. A weak link with a maximum breaking strength of 1,500 lb (680.4 
kg) must be placed at all buoys.

Anchored Gillnet Gear

    Fishermen utilizing anchored gillnet gear within the portions of 
Other Northeast Gillnet Waters and the Stellwagen Bank/Jeffreys Ledge 
Restricted Area that overlap with the DAM zone are required to utilize 
all the following gear modifications while the DAM zone is in effect:
    1. Groundlines must be made of sinking line. Floating groundlines 
are prohibited;
    2. All buoy lines must be made of sinking line, except the bottom 
portion of the line, which may be a section of floating line not to 
exceed one-third the overall length of the buoy line;
    3. Fishermen are allowed to use two buoy lines per string;
    4. The breaking strength of each net panel weak link must not 
exceed 1,100 lb (498.8 kg). The weak link requirements apply to all 
variations in net panel size. One weak link must be placed in the 
center of the floatline and one weak link must be placed in the center 
of each of the up and down lines at both ends of the net panel. 
Additionally, one weak link must be placed as close as possible to each 
end of the net panels on the floatline; or, one weak link must be 
placed between floatline tie-loops between net panels and one weak link 
must be placed where the floatline tie-loops attach to the bridle, buoy 
line, or groundline at each end of a net string;
    5. A weak link with a maximum breaking strength of 1,100 lb (498.8 
kg) must be placed at all buoys; and
    6. All anchored gillnets, regardless of the number of net panels, 
must be securely anchored with the holding power of at least a 22 lb 
(10.0 kg) Danforth-style anchor at each end of the net string.
    The restrictions will be in effect beginning at 0001 hours October 
16, 2008, through 2400 hours November 1, 2008, unless terminated sooner 
or extended by NMFS through another notification in the Federal 
Register.
    The restrictions will be announced to state officials, fishermen, 
ALWTRT members, and other interested parties through e-mail, phone 
contact, NOAA website, and other appropriate media immediately upon 
issuance of the rule by the AA.

Classification

    In accordance with section 118(f)(9) of the MMPA, the Assistant 
Administrator (AA) for Fisheries has determined that this action is 
necessary to implement a take reduction plan to protect North Atlantic 
right whales.
    Environmental Assessments for the DAM program were prepared on 
December 28, 2001, and August 6, 2003. This action falls within the 
scope of the analyses of these EAs, which are available from the agency 
upon request.
    NMFS provided prior notice and an opportunity for public comment on 
the regulations establishing the criteria and procedures for 
implementing a DAM zone. Providing prior notice and opportunity for 
comment on this action, pursuant to those regulations, would be 
impracticable because it would prevent NMFS from executing its 
functions to protect and reduce serious injury and 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 the effective date of this action for 30 days, 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

[[Page 60642]]

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: October 7, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E8-24272 Filed 10-8-08; 4:15 pm]
BILLING CODE 3510-22-S