Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 67803-67805 [E8-27218]
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Federal Register / Vol. 73, No. 222 / Monday, November 17, 2008 / Rules and Regulations
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 10, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8–27219 Filed 11–12–08; 4:15 pm]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 229
[Docket No. 0811101436–81441–01]
RIN 0648–XL75
hsrobinson on PROD1PC76 with RULES
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:
VerDate Aug<31>2005
17:35 Nov 14, 2008
Jkt 217001
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 1,575
nm2 (5,402.3 km2), east 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
November 19, 2008, through 2400 hours
December 3, 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, 55
Great Republic Drive, Gloucester, MA
01930.
FOR FURTHER INFORMATION CONTACT:
Diane Borggaard, NMFS/Northeast
Region, 978–281–9300 x6503; or Kristy
Long, NMFS, Office of Protected
Resources, 301–713–2322.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several of the background documents
for the ALWTRP and the take reduction
planning process can be downloaded
from the ALWTRP web site at 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).
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67803
On August 26, 2003, NMFS amended
the regulations by publishing a final
rule, which specifically identified gear
modifications that may be allowed in a
DAM zone (68 FR 51195). The DAM
program provides specific authority for
NMFS to restrict temporarily on an
expedited basis the use of lobster trap/
pot and anchored gillnet fishing gear in
areas north of 40° N. lat. to protect right
whales. Under the DAM program,
NMFS may: (1) require the removal of
all lobster trap/pot and anchored gillnet
fishing gear for a 15-day period; (2)
allow lobster trap/pot and anchored
gillnet fishing within a DAM zone with
gear modifications determined by NMFS
to sufficiently reduce the risk of
entanglement; and/or (3) issue an alert
to fishermen requesting the voluntary
removal of all lobster trap/pot and
anchored gillnet gear for a 15-day period
and asking fishermen not to set any
additional gear in the DAM zone during
the 15-day period.
A DAM zone is triggered when NMFS
receives a reliable report from a
qualified individual of three or more
right whales sighted within an area (75
nm2 (139 km2)) such that right whale
density is equal to or greater than 0.04
right whales per nm2 (1.85 km2). A
qualified individual is an individual
ascertained by NMFS to be reasonably
able, through training or experience, to
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 4, 2008, an aerial
survey reported an aggregation of 7 right
whales in the proximity of 43° 37′ N. lat.
and 68° 54′ W. long. The position lies
approximately 95nm east 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
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Federal Register / Vol. 73, No. 222 / Monday, November 17, 2008 / Rules and Regulations
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:
43°42′ N., 68°57′ W. (NW Corner)
43°42′ N., 68°00′ W.
43°04′ N., 68°00′ W.
43°04′ N., 68°57′ W.
43°42′ N., 68°57′ 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.
hsrobinson on PROD1PC76 with RULES
Lobster trap/pot gear
Fishermen utilizing lobster trap/pot
gear within portions of Northern
Nearshore Lobster Waters that overlap
with the DAM zone are required to
utilize all of the following gear
modifications while the DAM zone is in
effect:
1. Groundlines must be made of either
sinking or neutrally buoyant line.
Floating groundlines are prohibited;
2. All buoy lines must be made of
either sinking or neutrally buoyant line,
except the bottom portion of the line,
which may be a section of floating line
not to exceed one–third the overall
length of the buoy line;
3. Fishermen are allowed to use two
buoy lines per trawl; and
4. A weak link with a maximum
breaking strength of 600 lb (272.4 kg)
must be placed at all buoys.
Fishermen utilizing lobster trap/pot
gear within the portion of the Offshore
Lobster Waters Area that overlap with
the DAM zone are required to utilize all
of the following gear modifications
while the DAM zone is in effect:
1. Groundlines must be made of either
sinking or neutrally buoyant line.
Floating groundlines are prohibited;
2. All buoy lines must be made of
either sinking or neutrally buoyant line,
except the bottom portion of the line,
which may be a section of floating line
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17:35 Nov 14, 2008
Jkt 217001
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 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. 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 November 19,
2008, through 2400 hours December 3,
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.
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Classification
In accordance with section 118(f)(9) of
the MMPA, the Assistant Administrator
(AA) for Fisheries has determined that
this action is necessary to implement a
take reduction plan to protect North
Atlantic right whales.
Environmental Assessments for the
DAM program were prepared on
December 28, 2001, and August 6, 2003.
This action falls within the scope of the
analyses of these EAs, which are
available from the agency upon request.
NMFS provided prior notice and an
opportunity for public comment on the
regulations establishing the criteria and
procedures for implementing a DAM
zone. Providing prior notice and
opportunity for comment on this action,
pursuant to those regulations, would be
impracticable because it would prevent
NMFS from executing its functions to
protect and reduce serious injury and
mortality of endangered right whales.
The regulations establishing the DAM
program are designed to enable the
agency to help protect unexpected
concentrations of right whales. In order
to meet the goals of the DAM program,
the agency needs to be able to create a
DAM zone and implement restrictions
on fishing gear as soon as possible once
the criteria are triggered and NMFS
determines that a DAM restricted zone
is appropriate. If NMFS were to provide
prior notice and an opportunity for
public comment upon the creation of a
DAM restricted zone, the aggregated
right whales would be vulnerable to
entanglement which could result in
serious injury and mortality.
Additionally, the right whales would
most likely move on to another location
before NMFS could implement the
restrictions designed to protect them,
thereby rendering the action obsolete.
Therefore, pursuant to 5 U.S.C.
553(b)(B), the AA finds that good cause
exists to waive prior notice and an
opportunity to comment on this action
to implement a DAM restricted zone to
reduce the risk of entanglement of
endangered right whales in commercial
lobster trap/pot and anchored gillnet
gear as such procedures would be
impracticable.
For the same reasons, the AA finds
that, under 5 U.S.C. 553(d)(3), good
cause exists to waive the 30-day delay
in effective date. If NMFS were to delay
for 30 days the effective date of this
action, the aggregated right whales
would be vulnerable to entanglement,
which could cause serious injury and
mortality. Additionally, right whales
would likely move to another location
between the time NMFS approved the
action creating the DAM restricted zone
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hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 222 / Monday, November 17, 2008 / Rules and Regulations
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).
VerDate Aug<31>2005
17:35 Nov 14, 2008
Jkt 217001
Dated: November 10, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8–27218 Filed 11–12–08; 4:15 pm]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 300, 600 and 697
[Docket No. 070717337–81411–03]
RIN 0648–AV78
General Provisions for Domestic
Fisheries; Specifications for Boarding
Ladders
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
SUMMARY: NMFS publishes regulations
to require operators of domestic fishing
vessel with a freeboard of four feet or
over to provide a U.S. Coast Guardapproved pilot ladder as a safe and
enforceable means for authorized
personnel to board fishing vessels in
carrying out their duties under the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act), the Atlantic
Tunas Convention Act, and other
applicable fisheries laws and treaties.
This action is necessary to provide for
the safety of personnel boarding
domestic fishing vessels, as current
standards have proven to be inadequate.
These final regulations establish a safer
and more enforceable national standard
for ladders used by authorized officers
for boarding domestic fishing vessels
subject to Federal regulation.
DATES: Effective January 1, 2009.
ADDRESSES: NMFS prepared a Final
Regulatory Flexibility Analysis (FRFA),
, which incorporates the IRFA and this
final rule, and is contained in the
Classification section of this final rule.
Copies of the Initial Regulatory
Flexibility Analysis/Regulatory Impact
Review (IRFA/RIR) may be obtained
from: Alan Risenhoover, Director, Office
of Sustainable Fisheries, National
Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT:
William D. Chappell, 301–713–2337.
SUPPLEMENTARY INFORMATION: A
proposed rule for this action was
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67805
published on December 11, 2007 (72 FR
70286), with public comment accepted
though January 10, 2008. Several
requests were made to extend the
comment period, and NMFS responded
by re-opening the proposed rule for
public comment from January 25, 2008
to February 25, 2008 (73 FR 4514). A
detailed description of the statutory and
regulatory authority for, and need for
this rule is contained in the preamble of
the proposed rule and is not repeated
here.
Current regulations at § 600.730(c)(3)
require the operator of a fishing vessel
to ‘‘provide a safe ladder’’ to be used for
boarding purposes. This requirement
has been in existence at least since
general provisions for domestic fisheries
were consolidated (53 FR 24644, June
29, 1988). While some commenters
expressed surprise at the existence of
this requirement, they generally agreed
that some sort of ladder is needed for
boarding larger vessels. Comments
focused on the definition of a safe
ladder, when the ladder is needed, and
who provides (and pays for) the ladder.
Twenty years of experience have
shown that the current generic
definition is inadequate for both safety
and enforcement purposes. Because
standards to define a ‘‘safe ladder’’ did
not exist, some fishing vessel operators
provided inadequate ladders, which put
boarding personnel at risk. Where the
ladder is clearly inadequate, the
boarding party must either provide a
boarding ladder or abort the boarding.
This lack of a quick and safe means of
boarding slows down boardings and
creates additional interruptions of
fishing operations. These final
regulations provide a common
definition for a ladder proven to be safer
than other types.
The final rule requires the use of a
pilot ladder on all fishing vessels with
a freeboard of 4 ft (1.25 m) and defines
the term ‘‘freeboard’’ for this rule.
Because the definition of freeboard is
now defined as the distance between the
top rail of the gunwale and the water’s
surface, some vessels that did not need
to provide a ladder before will have to
provide a ladder under this rule.
Comments on the Proposed Rule
NMFS received one letter of comment
from Washington Department of Fish
and Wildlife (WDFW) and three letters
of comment from the United States
Coast Guard (USCG), plus 56 comments
from members of the public with thirtytwo unique comments.
Comment 1: NMFS received twentysix comments that the USCG or NMFS
provide a boarding ladder when
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]]>Agencies
[Federal Register Volume 73, Number 222 (Monday, November 17, 2008)]
[Rules and Regulations]
[Pages 67803-67805]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27218]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 0811101436-81441-01]
RIN 0648-XL75
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 1,575 nm\2\
(5,402.3 km\2\), east 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 November 19, 2008, through
2400 hours December 3, 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, 55 Great Republic Drive, Gloucester,
MA 01930.
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast
Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected
Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several of the background documents for the ALWTRP and the take
reduction planning process can be downloaded from the ALWTRP web site
at 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.
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 4, 2008, an aerial survey reported an aggregation of 7
right whales in the proximity of 43[deg] 37' N. lat. and 68[deg] 54' W.
long. The position lies approximately 95nm east 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
[[Page 67804]]
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:
43[deg]42' N., 68[deg]57' W. (NW Corner)
43[deg]42' N., 68[deg]00' W.
43[deg]04' N., 68[deg]00' W.
43[deg]04' N., 68[deg]57' W.
43[deg]42' N., 68[deg]57' W. (NW Corner)
In addition to those gear modifications currently implemented under
the ALWTRP at 50 CFR 229.32, the following gear modifications are
required in the DAM zone. If the requirements and exceptions for gear
modification in the DAM zone, as described below, differ from other
ALWTRP requirements for any overlapping areas and times, then the more
restrictive requirements will apply in the DAM zone.
Lobster trap/pot gear
Fishermen utilizing lobster trap/pot gear within portions of
Northern Nearshore Lobster Waters that overlap with the DAM zone are
required to utilize all of the following gear modifications while the
DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 600 lb (272.4
kg) must be placed at all buoys.
Fishermen utilizing lobster trap/pot gear within the portion of the
Offshore Lobster Waters Area that overlap with the DAM zone are
required to utilize all of the following gear modifications while the
DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 1,500 lb (680.4
kg) must be placed at all buoys.
Anchored Gillnet Gear
Fishermen utilizing anchored gillnet gear within the portions of
the Other Northeast Gillnet Waters 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. 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 November
19, 2008, through 2400 hours December 3, 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 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
[[Page 67805]]
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 10, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8-27218 Filed 11-12-08; 4:15 pm]
BILLING CODE 3510-22-S
