Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 5621-5623 [E9-2018]

Download as PDF Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Rules and Regulations Victor M. Fortuno, Vice President for Legal Affairs, General Counsel & Corporate Secretary. [FR Doc. E9–1851 Filed 1–29–09; 8:45 am] This document extends to May 21, 2009, the applicability date of the E-Verify rule, in order to permit the new Administration an adequate opportunity to review the rule. SUPPLEMENTARY INFORMATION: BILLING CODE 7050–01–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 2, 22, and 52 [FAC 2005–29, Amendment–2; FAR Case 2007–013; Docket 2008–0001; Sequence 3] RIN 9000–AK91 Federal Acquisition Regulation; FAR Case 2007–013, Employment Eligibility Verification erowe on PROD1PC63 with RULES AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Amendment to final rule; delay of applicability date. SUMMARY: The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have agreed to delay the applicability date of FAR Case 2007– 013, Employment Eligibility Verification, to May 21, 2009. DATES: Applicability Date: The applicability date of FAC 2005–29, Amendment–1, published January 14, 2009, 74 FR 1937, is delayed until May 21, 2009. Contracting officers shall not include the new clause at 52.222–54, Employment Eligibility Verification, in any solicitation or contract prior to the applicability date of May 21, 2009. On or after May 21, 2009, contracting officers— • Shall include the clause in solicitations, in accordance with the clause prescription at 22.1803 and FAR 1.108(d)(1); and • Should modify, on a bilateral basis, existing indefinite-delivery/indefinitequantity contracts in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends beyond November 21, 2009, and the amount of work or number of orders expected under the remaining performance period is substantial. FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501–4755 for further information pertaining to status or publication schedule. Please cite FAC 2005–29 (delay of applicability date). VerDate Nov<24>2008 14:40 Jan 29, 2009 Jkt 217001 Federal Acquisition Circular Federal Acquisition Circular (FAC) 2005–29, Amendment-2, is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. The Federal Acquisition Regulation (FAR) contained in FAC 2005–29 is effective January 19, 2009, and applicable May 21, 2009. Dated: January 27, 2009. Linda W. Neilson, Deputy Director, Defense Procurement (Defense Acquisition Regulations System). Dated: January 26, 2009 Rodney P. Lantier, Acting Senior Procurement Executive & Acting Deputy Chief Acquisition Officer, Office of the Chief Acquisition Officer, U.S. General Services Administration. Dated: January 26, 2009. William P. McNally, Assistant Administrator for Procurement, National Aeronautics and Space Administration. [FR Doc. E9–2060 Filed 1–27–09; 4:15 pm] BILLING CODE 6820–EP–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 090115024–9027–01] RIN 0648–XM80 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 for 15 days in an area totaling approximately 1,725 nm2 (5,917 km2) PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 5621 east of Portsmouth, New Hampshire. The purpose of this action is to provide protection to an aggregation of North Atlantic right whales (right whales). DATES: Effective beginning at 0001 hours February 2, 2009, through 2400 hours February 17, 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 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 E:\FR\FM\30JAR1.SGM 30JAR1 erowe on PROD1PC63 with RULES 5622 Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Rules and Regulations 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 January 10, 2009, a vessel survey reported an aggregation of 7 right whales in the general proximity of 43° 02 N latitude and 70° 15’ W longitude. The position lies 30nm east of Portsmouth, New Hampshire, in the vicinity of Jeffreys 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 VerDate Nov<24>2008 14:40 Jan 29, 2009 Jkt 217001 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 bounded by the following coordinates: 43° 24′ N., 70° 20′ W. (NW Corner) 43° 24′ N., 69° 44′ W. 42° 40′ N., 69° 44′ W. 42° 40′ N., 70° 37′ W. following the shoreline northward to 42° 41′ N., 70° 46′ W. 42° 58′ N., 70° 46′ W. following the shoreline northward to 43° 03′ N., 70° 44′ W. 43° 04′ N., 70° 36′ W. 43° 24′ N., 70° 20′ 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 Inshore State Trap/Pot Waters, Northern Nearshore Trap/Pot Waters, and 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. Anchored Gillnet Gear Fishermen utilizing anchored gillnet gear within the portions of the Other Northeast Gillnet Waters Area 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 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 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 February 2, 2009, through 2400 hours February 17, 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 E:\FR\FM\30JAR1.SGM 30JAR1 erowe on PROD1PC63 with RULES Federal Register / Vol. 74, No. 19 / Friday, January 30, 2009 / Rules and Regulations 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 VerDate Nov<24>2008 14:40 Jan 29, 2009 Jkt 217001 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: January 15, 2009. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. E9–2018 Filed 1–27–09; 4:15 pm] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 001005281–0369–02] RIN 0648–XM85 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Closure AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 5623 SUMMARY: NMFS closes the commercial run-around gillnet fishery for king mackerel in the exclusive economic zone (EEZ) in the southern Florida west coast subzone. This closure is necessary to protect the Gulf king mackerel resource. DATES: The closure is effective 6 a.m., local time, January 30, 2009, through 6 a.m., January 19, 2010. FOR FURTHER INFORMATION CONTACT: Susan Gerhart, telephone: 727–824– 5305, fax: 727–824–5308, e-mail: Susan.Gerhart@noaa.gov. SUPPLEMENTARY INFORMATION: The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Based on the Councils’ recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001), NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the eastern zone into northern and southern subzones, and established their separate quotas. The quota implemented for the southern Florida west coast subzone is 1,040,625 lb (472,020 kg). That quota is further divided into two equal quotas of 520,312 lb (236,010 kg) for vessels in each of two groups fishing with runaround gillnets and hook-and-line gear (50 CFR 622.42(c)(1)(i)(A)(2)(i)). The southern subzone is that part of the Florida west coast subzone, which from November 1 through March 31, extends south and west from 26°19.8′ N. lat. (a line directly west from the Lee/ Collier County, FL, boundary) to 25°20.4′ N. lat. (a line directly east from the Monroe/Miami-Dade County, FL, boundary), i.e., the area off Collier and Monroe Counties. From April 1 through October 31, the southern subzone is that part of the Florida west coast subzone E:\FR\FM\30JAR1.SGM 30JAR1

Agencies

[Federal Register Volume 74, Number 19 (Friday, January 30, 2009)]
[Rules and Regulations]
[Pages 5621-5623]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2018]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 090115024-9027-01]
RIN 0648-XM80


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 for 15 days in an area totaling approximately 1,725 
nm\2\ (5,917 km\2\) east of Portsmouth, New Hampshire. The purpose of 
this action is to provide protection to an aggregation of North 
Atlantic right whales (right whales).

DATES: Effective beginning at 0001 hours February 2, 2009, through 2400 
hours February 17, 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 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

[[Page 5622]]

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 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 January 10, 2009, a vessel survey reported an aggregation of 7 
right whales in the general proximity of 43[deg] 02 N latitude and 
70[deg] 15' W longitude. The position lies 30nm east of Portsmouth, New 
Hampshire, in the vicinity of Jeffreys 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.
    The DAM zone is bounded by the following coordinates:
    43[deg] 24' N., 70[deg] 20' W. (NW Corner)
    43[deg] 24' N., 69[deg] 44' W.
    42[deg] 40' N., 69[deg] 44' W.
    42[deg] 40' N., 70[deg] 37' W. following the shoreline northward to
    42[deg] 41' N., 70[deg] 46' W.
    42[deg] 58' N., 70[deg] 46' W. following the shoreline northward to
    43[deg] 03' N., 70[deg] 44' W.
    43[deg] 04' N., 70[deg] 36' W.
    43[deg] 24' N., 70[deg] 20' 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 Inshore State Trap/Pot Waters, Northern Nearshore Trap/Pot 
Waters, and 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.

Anchored Gillnet Gear

    Fishermen utilizing anchored gillnet gear within the portions of 
the Other Northeast Gillnet Waters Area 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 February 
2, 2009, through 2400 hours February 17, 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

[[Page 5623]]

mortality of endangered right whales. The regulations establishing the 
DAM program are designed to enable the agency to help protect 
unexpected concentrations of right whales. In order to meet the goals 
of the DAM program, the agency needs to be able to create a DAM zone 
and implement restrictions on fishing gear as soon as possible once the 
criteria are triggered and NMFS determines that a DAM restricted zone 
is appropriate. If NMFS were to provide prior notice and an opportunity 
for public comment upon the creation of a DAM restricted zone, the 
aggregated right whales would be vulnerable to entanglement which could 
result in serious injury and mortality. Additionally, the right whales 
would most likely move on to another location before NMFS could 
implement the restrictions designed to protect them, thereby rendering 
the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA 
finds that good cause exists to waive prior notice and an opportunity 
to comment on this action to implement a DAM restricted zone to reduce 
the risk of entanglement of endangered right whales in commercial 
lobster trap/pot and anchored gillnet gear as such procedures would be 
impracticable.
    For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), 
good cause exists to waive the 30-day delay in effective date. If NMFS 
were to delay for 30 days the effective date of this action, the 
aggregated right whales would be vulnerable to entanglement, which 
could cause serious injury and mortality. Additionally, right whales 
would likely move to another location between the time NMFS approved 
the action creating the DAM restricted zone and the time it went into 
effect, thereby rendering the action obsolete and ineffective. 
Nevertheless, NMFS recognizes the need for fishermen to have time to 
either modify or remove (if not in compliance with the required 
restrictions) their gear from a DAM zone once one is approved. Thus, 
NMFS makes this action effective 2 days after the date of publication 
of this document in the Federal Register. NMFS will also endeavor to 
provide notice of this action to fishermen through other means upon 
issuance of the rule by the AA, thereby providing approximately 3 
additional days of notice while the Office of the Federal Register 
processes the document for publication.
    NMFS determined that the regulations establishing the DAM program 
and actions such as this one taken pursuant to those regulations are 
consistent to the maximum extent practicable with the enforceable 
policies of the approved coastal management program of the U.S. 
Atlantic coastal states. This determination was submitted for review by 
the responsible state agencies under section 307 of the Coastal Zone 
Management Act. Following state review of the regulations creating the 
DAM program, no state disagreed with NMFS' conclusion that the DAM 
program is consistent to the maximum extent practicable with the 
enforceable policies of the approved coastal management program for 
that state.
    The DAM program under which NMFS is taking this action contains 
policies with federalism implications warranting preparation of a 
federalism assessment under Executive Order 13132. Accordingly, in 
October 2001 and March 2003, the Assistant Secretary for 
Intergovernmental and Legislative Affairs, Department of Commerce, 
provided notice of the DAM program and its amendments to the 
appropriate elected officials in states to be affected by actions taken 
pursuant to the DAM program. Federalism issues raised by state 
officials were addressed in the final rules implementing the DAM 
program. A copy of the federalism Summary Impact Statement for the 
final rules is available upon request (ADDRESSES).
    The rule implementing the DAM program has been determined to be not 
significant under Executive Order 12866.

    Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3).

    Dated: January 15, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-2018 Filed 1-27-09; 4:15 pm]
BILLING CODE 3510-22-S