Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 76269-76272 [E8-29748]
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Federal Register / Vol. 73, No. 242 / Tuesday, December 16, 2008 / Rules and Regulations
v. U.S. Fish and Wildlife Service, No.
04–04324 (N.D. Cal. 2005).
Executive Order because this special
rule will, with limited exceptions,
maintain the status quo regarding
activities currently allowed under the
MMPA. A takings implication
assessment is not required.
Federalism
In accordance with Executive Order
13132, this rule does not have
significant Federalism effects. A
Federalism assessment is not required.
This rule will not have substantial
direct effects on the State, on the
relationship between the Federal
Government and the State, or on the
distribution of power and
responsibilities among the various
levels of government.
Civil Justice Reform
In accordance with Executive Order
12988, the Office of the Solicitor has
determined that this rule does not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the Order.
Paperwork Reduction Act
This special rule does not contain any
new collections of information that
require approval by the Office of
Management and Budget (OMB) under
44 U.S.C. 3501 et seq. The rule does not
impose new record keeping or reporting
requirements on State or local
governments, individuals, and
businesses, or organizations. We may
not conduct or sponsor, and you are not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
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National Environmental Policy Act
(NEPA)
This rule is exempt from NEPA
procedures. In 1983, upon
recommendation of the Council on
Environmental Quality, the Service
determined that NEPA documents need
not be prepared in connection with
regulations adopted pursuant to section
4(a) of the ESA. The Service
subsequently expanded this
determination to section 4(d) rules. A
section 4(d) rule provides the
appropriate and necessary prohibitions
and authorizations for a species that has
been determined to be threatened under
section 4(a) of the ESA. NEPA
procedures would confuse matters by
overlaying its own matrix upon the
section 4 decision-making process. The
opportunity for public comment—one of
the goals of NEPA—is also already
provided through section 4 rulemaking
procedures. This determination was
upheld in Center for Biological Diversity
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■
Government-to-Government
Relationship With Tribes
The Service, in accordance with the
President’s memorandum of April 29,
1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951), Executive
Order 13175 and the Department of the
Interior’s manual at 512 DM 2, and
Secretarial Order 3225, acknowledges
our responsibility to communicate
meaningfully with federally recognized
Tribes on a government-to-government
basis. During the public comment
period following our proposal to list the
polar bear as threatened (72 FR 1064),
Alaska Native tribes and tribally
authorized organizations were among
those that provided comments on the
listing action. In addition, public
hearings were held at Anchorage (March
1, 2007) and Barrow (March 7, 2007),
Alaska. For the Barrow public hearing,
we established teleconferencing
capabilities to provide an opportunity to
receive testimony from outlying
communities. The communities of
Kaktovik, Gambell, Kotzebue,
Shishmaref, and Point Lay, Alaska,
participated in this public hearing via
teleconference.
§ 17.40
76269
Energy Supply, Distribution or Use
(Executive Order 13211)
On May 18, 2001, the President issued
Executive Order 13211 on regulations
that significantly affect energy supply,
distribution, and use. Executive Order
13211 requires agencies to prepare
Statements of Energy Effects when
undertaking certain actions. For reasons
discussed within this rule, we believe
that the rule does not have any effect on
energy supplies, distribution, and use.
Therefore, this action is a not a
significant energy action, and no
Statement of Energy Effects is required.
2. Amend § 17.40 by revising
paragraph (q) to read as follows:
Special rules—mammals.
*
*
*
*
*
(q) Polar bear (Ursus maritimus).
(1) Except as noted in paragraphs
(q)(2) and (q)(4) of this section, all
prohibitions and provisions of §§ 17.31
and 17.32 of this part apply to the polar
bear.
(2) None of the prohibitions in § 17.31
of this part apply to any activity that is
authorized or exempted under the
Marine Mammal Protection Act
(MMPA), 16 U.S.C. 1361 et seq., the
Convention on International Trade in
Endangered Species of Wild Fauna and
Flora (CITES), or both, provided that the
person carrying out the activity has
complied with all terms and conditions
that apply to that activity under the
provisions of the MMPA and CITES and
their implementing regulations.
(3) All applicable provisions of 50
CFR parts 14, 18, and 23 must be met.
(4) None of the prohibitions in § 17.31
of this part apply to any taking of polar
bears that is incidental to, but not the
purpose of, carrying out an otherwise
lawful activity within the United States,
except for any incidental taking caused
by activities in areas subject to the
jurisdiction or sovereign rights of the
United States within the current range
of the polar bear.
Dated: December 10, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. E8–29675 Filed 12–15–08; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
50 CFR Part 229
Regulation Promulgation
Taking of Marine Mammals Incidental
to Commercial Fishing Operations;
Atlantic Large Whale Take Reduction
Plan
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
■
[Docket No. 0812101578–81580–01]
RIN 0648–XM23
1. The authority citation for part 17
continues to read as follows:
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule.
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
SUMMARY: The Assistant Administrator
for Fisheries (AA), NOAA, announces
PART 17—[AMENDED]
■
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Federal Register / Vol. 73, No. 242 / Tuesday, December 16, 2008 / Rules and Regulations
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 for
15 days in an area east of Portsmouth,
New Hampshire ranging from 1,284 nm2
to 1,354 nm2 (4,404 km2 to 4,644.1 km2),
depending on the temporal and spatial
overlap with another previously
established DAM zone. The purpose of
this action is to provide protection to an
aggregation of northern right whales
(right whales).
DATES: Effective beginning at 0001 hours
December 18, 2008, through 2400 hours
January 2, 2009.
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:
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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
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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.
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 (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 December 6, 2008, an aerial survey
reported an aggregation of 3 right
whales in the general proximity of 42°
56 N. latitude and 69° 13’ W. longitude.
The position lies approximately 70nm
east of Portsmouth, New Hampshire, in
proximity to Cashes Ledge. 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,
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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.
This DAM zone overlaps with one
other DAM zone that published in the
Federal Register on December 12, 2008,
and is in effect from 0001 hours
December 14, 2008 through 2400 hours
December 28, 2008. Effective from 0001
hours December 18, 2008, through 2400
hours December 28, 2008, the DAM
zone is bounded by the following
coordinates when it overlaps the
previously established DAM zone:
43° 16’ N., 69° 39’ W. (NW Corner)
43° 16’ N., 68° 57’ W.
43° 04’ N., 68° 57’ W.
43° 04’ N., 68° 49’ W.
42° 39’ N., 68° 49’ W.
42° 39’ N., 69° 39’ W.
43° 16’ N., 69° 39’ W. (NW Corner)
Effective from 0001 hours December
29, 2008, through 2400 hours January 2,
2009, the DAM zone is bounded by the
following coordinates:
43° 16’ N., 69° 39’ W. (NW Corner)
43° 16’ N., 68° 57’ W.
43° 04’ N., 68° 57’ W.
43° 04’ N., 68° 49’ W.
42° 39’ N., 68° 49’ W.
42° 39’ N., 69° 39’ W.
43° 16’ N., 69° 39’ 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;
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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;
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5. A weak link with a maximum
breaking strength of 1,100 lb (498.8 kg)
must be placed at all buoys; and
6. All anchored gillnets, regardless of
the number of net panels, must be
securely anchored with the holding
power of at least a 22 lb (10.0 kg)
Danforth-style anchor at each end of the
net string.
The restrictions will be in effect
beginning at 0001 hours December 18,
2008, through 2400 hours January 2,
2009, 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.
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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
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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: December 10, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8–29748 Filed 12–11–08; 4:15 pm]
BILLING CODE 3510–22–S
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[1018–AT50]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[0648–AX15]
50 CFR Part 402
Interagency Cooperation Under the
Endangered Species Act
AGENCIES: U.S. Fish and Wildlife
Service, Interior; National Marine
Fisheries Service; National Oceanic and
Atmospheric Administration;
Commerce.
ACTION: Final rule.
With this final rule, the
United States Fish and Wildlife Service
and the National Marine Fisheries
Service (collectively, ‘‘Services’’ or
‘‘we’’) amend regulations governing
interagency cooperation under the
Endangered Species Act of 1973, as
amended (ESA). This rule clarifies
several definitions, provides assistance
as to when consultation under section 7
is necessary, and establishes time
frames for the informal consultation
process.
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SUMMARY:
DATES: Effective Date: This rule is
effective January 15, 2009.
FOR FURTHER INFORMATION CONTACT:
Office of the Assistant Secretary for Fish
and Wildlife and Parks, 1849 C Street,
NW., Washington, DC 20240; telephone:
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15:59 Dec 15, 2008
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202–208–4416; or James H. Lecky,
Director, Office of Protected Resources,
National Marine Fisheries Service, 1315
East-West Highway, Silver Spring, MD
20910; telephone: 301–713–2332.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act of 1973,
as amended (‘‘ESA’’; 16 U.S.C. 1531 et
seq.) provides that the Secretaries of the
Interior and Commerce (the
‘‘Secretaries’’) share responsibilities for
implementing most of the provisions of
the ESA. Generally, marine species are
under the jurisdiction of the Secretary of
Commerce and all other species are
under the jurisdiction of the Secretary of
the Interior. Authority to administer the
Act has been delegated by the Secretary
of the Interior to the Director of the Fish
and Wildlife Service and by the
Secretary of Commerce through the
Administrator of the National Oceanic
and Atmospheric Administration to the
Assistant Administrator for National
Marine Fisheries Service.
In this rule, we refer to the Fish and
Wildlife Service as FWS and the
National Marine Fisheries Service as
NMFS. The word ‘‘Services’’ refers to
both FWS and NMFS. We use the word
‘‘Service’’ when we describe a situation
that could apply to either agency. We
use the term ‘‘1986 regulations’’ to
reference the 1986 section 7 regulations
found at 50 CFR Part 402.
Procedural Background
On August 15, 2008, the Services
published the Proposed Rule. The
public was given 30 days to comment.
On September 15, 2008, that comment
period was extended by 30 days.
Approximately 235,000 comments were
received; of these, approximately
215,000 were largely similar ‘‘form’’
letters.
Changes From Proposed Rule in
Responses to Comments
After reviewing the public comments
and further interagency discussion, the
Services made certain clarifications and
modifications in the final rule. The parts
of the rule that were changed are set out
immediately below. Those changes are
discussed in more detail in a section-bysection analysis of comments set out
later in this preamble.
Definitions (§ 402.02)
The proposed rule set out a new
definition for ‘‘Biological Assessment’’.
In the final rule, a sentence was added
to the end of the definition. The
additional sentence requires that the
Federal agency provide the Services a
specific guide or statement as to the
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location of the relevant consultation
information, as described in 402.14, in
any alternative document submitted in
lieu of a biological assessment.
The proposed rule set out a new
definition of ‘‘cumulative effects.’’ No
changes were made to the definition of
cumulative effects in the final rule.
The proposed rule set out a new
definition of ‘‘Effects of the Action’’. In
the final rule, a definition of ‘‘direct
effects’’ was added and the fourth
sentence of the proposed rule was
changed.
Applicability—(§ 402.03)
The proposed rule set out a new
applicability section. In the final rule,
paragraph (b)(2) and paragraph (b)(3)(i)
were changed and paragraph (b)(3)(iii)
was deleted. Specifically, paragraph
(b)(2) deleted language that ‘‘such action
is an insignificant contributor to any
effects on a listed species or critical
habitat’’ and replaced it with language
that the effects of such action are
manifested through global processes and
cannot be reliably predicted or
measured at the scale of a listed species’
current range; or, would result at most
in an extremely small, insignificant
impact on a listed species or critical
habitat; or, are such that the potential
risk of harm to a listed species or critical
habitat is remote. Paragraph (b)(3)(i) was
changed by moving the word
‘‘meaningful’’ to directly before the
word ‘‘evaluation.’’ Finally, paragraph
(b)(3) was deleted in its entirety.
Informal Consultation (§ 402.13)
The proposed rule amended the
informal consultation procedures. In the
final rule, a sentence was added to the
end of paragraph (b) and a paragraph (c)
was added. Specifically, a sentence was
added to the end of paragraph (b) to set
out that if the Federal agency terminates
consultation at the end of the 60-day
period, or if the Service’s extension
period expires without a written
statement whether it concurs with a
Federal agency’s determination
provided for in paragraph (a) of this
section, the consultation provision in
section 7(a)(2) is satisfied. Paragraph (c)
was added to the final rule to provide
that notwithstanding the provisions of
paragraph (b) the Service, the Federal
agency, and the applicant, if one is
involved, may agree to extend informal
consultation for a specific time period.
Formal Consultation (§ 402.14)
The proposed rule made a change to
the formal consultation procedures. In
the final rule, we changed the
‘‘exception’’ language in § 402.14 to note
that informal consultation may be
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16DER1
Agencies
[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Rules and Regulations]
[Pages 76269-76272]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29748]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 0812101578-81580-01]
RIN 0648-XM23
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.
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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA,
announces
[[Page 76270]]
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 for 15 days in an area east of Portsmouth, New Hampshire
ranging from 1,284 nm\2\ to 1,354 nm\2\ (4,404 km\2\ to 4,644.1 km\2\),
depending on the temporal and spatial overlap with another previously
established DAM zone. The purpose of this action is to provide
protection to an aggregation of northern right whales (right whales).
DATES: Effective beginning at 0001 hours December 18, 2008, through
2400 hours January 2, 2009.
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 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\ (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 December 6, 2008, an aerial survey reported an aggregation of 3
right whales in the general proximity of 42[deg] 56 N. latitude and
69[deg] 13' W. longitude. The position lies approximately 70nm east of
Portsmouth, New Hampshire, in proximity to Cashes Ledge. 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.
This DAM zone overlaps with one other DAM zone that published in
the Federal Register on December 12, 2008, and is in effect from 0001
hours December 14, 2008 through 2400 hours December 28, 2008. Effective
from 0001 hours December 18, 2008, through 2400 hours December 28,
2008, the DAM zone is bounded by the following coordinates when it
overlaps the previously established DAM zone:
43[deg] 16' N., 69[deg] 39' W. (NW Corner)
43[deg] 16' N., 68[deg] 57' W.
43[deg] 04' N., 68[deg] 57' W.
43[deg] 04' N., 68[deg] 49' W.
42[deg] 39' N., 68[deg] 49' W.
42[deg] 39' N., 69[deg] 39' W.
43[deg] 16' N., 69[deg] 39' W. (NW Corner)
Effective from 0001 hours December 29, 2008, through 2400 hours
January 2, 2009, the DAM zone is bounded by the following coordinates:
43[deg] 16' N., 69[deg] 39' W. (NW Corner)
43[deg] 16' N., 68[deg] 57' W.
43[deg] 04' N., 68[deg] 57' W.
43[deg] 04' N., 68[deg] 49' W.
42[deg] 39' N., 68[deg] 49' W.
42[deg] 39' N., 69[deg] 39' W.
43[deg] 16' N., 69[deg] 39' 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;
[[Page 76271]]
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 December
18, 2008, through 2400 hours January 2, 2009, 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 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
[[Page 76272]]
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: December 10, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8-29748 Filed 12-11-08; 4:15 pm]
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