Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan, 7824-7826 [E9-3669]
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Federal Register / Vol. 74, No. 33 / Friday, February 20, 2009 / Rules and Regulations
Executive Order 12866, Regulatory
Review
This rule has been reviewed by the
Office of Management and Budget in
accordance with Executive Order 12866.
Lists of Subjects in 48 CFR Part 1652
Government employees, Government
procurement, Health insurance,
Reporting and recordkeeping
requirements.
U.S. Office of Personnel Management.
Kathie Ann Whipple,
Acting Director.
Accordingly, OPM is amending
chapter 16 of title 48, Code of Federal
Regulations, as follows:
■
CHAPTER 16—OFFICE OF PERSONNEL
MANAGEMENT FEDERAL EMPLOYEES
HEALTH BENEFITS ACQUISITION
REGULATION
Subchapter H—Clauses and Forms
PART 1652—CONTRACT CLAUSES
1. The authority citation for part 1652
continues to read as follows:
■
Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c);
48 CFR 1.301.
Subpart 1652.2—Texts of FEHBP
Clauses
2. In § 1652.216–70, revise paragraphs
(b)(2), (b)(3), (b)(4), and (b)(6), and add
paragraphs (b)(7) and (b)(8) to read as
follows:
■
§ 1652.216–70
adjustment.
Accounting and price
found to be higher than the equivalent
rates for the lower of the two SSSGs, the
carrier shall reimburse the Fund, for
example, by reducing the FEHB rates for
the next contract term to reflect the
difference between the estimated rates
and the rates which are derived using
the methodology of the lower rated
SSSG, except as noted in paragraph
(b)(7) of this clause.
*
*
*
*
*
(6) For contract years beginning on or
after January 1, 2009, in the event this
contract is not renewed, the final rate
reconciliation will be performed. The
carrier must promptly pay any amount
owed to OPM. Any amount recoverable
by the carrier is limited to the amount
in the contingency reserve for the
terminating plan as of December 31 of
the terminating year.
(7) Carriers may provide additional
guaranteed discounts to the FEHBP that
are not given to SSSGs. Any such
guaranteed discounts must be clearly
identified as guaranteed discounts. After
the beginning of the contract year for
which the rates are set, these guaranteed
FEHBP discounts may not be adjusted.
(8) Carriers may not impose
surcharges (loadings not defined based
on an established rating method) on the
FEHBP subscription rates or use
surcharges in the rate reconciliation
process irrespective of whether
surcharges are applied to the SSSGs.
*
*
*
*
*
[FR Doc. E9–3675 Filed 2–19–09; 8:45 am]
BILLING CODE 6325–39–P
*
*
*
*
*
(b) * * *
(2) The subscription rates agreed to in
this contract shall be equivalent to the
subscription rates given to the carrier’s
similarly sized subscriber groups
(SSSGs) as defined in FEHBAR
1602.170–13. The subscription rates
shall be determined according to the
carrier’s established policy, which must
be applied consistently to the FEHBP
and to the carrier’s SSSGs. If an SSSG
receives a rate lower than that
determined according to the carrier’s
established policy, it is considered a
discount. The FEHBP must receive a
discount equal to or greater than the
carrier’s largest SSSG discount.
(3) If, at the time of the rate
reconciliation, the subscription rates are
found to be lower than the equivalent
rates for the lower of the two SSSGs, the
carrier may include an adjustment to the
Federal group’s rates for the next
contract period, except as noted in
paragraph (b)(7) of this clause.
(4) If, at the time of the rate
reconciliation, the subscription rates are
VerDate Nov<24>2008
16:40 Feb 19, 2009
Jkt 217001
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 229
[Docket No. 090213177–9179–01]
RIN 0648–XN40
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/
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pot and anchored gillnet fishermen for
15 days in an area totaling
approximately 1,920 nm2 (6,586 km2)
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 22, 2009], through 2400 hours
[March 8, 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
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Federal Register / Vol. 74, No. 33 / Friday, February 20, 2009 / Rules and Regulations
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 February 10, 2009, a vessel survey
reported an aggregation of 10 right
whales in the general proximity of 43°
00’ N latitude and 70° 11’ W longitude.
The position lies 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.
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16:40 Feb 19, 2009
Jkt 217001
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° 18’ N., 70° 25.4’ W. (NW Corner)
43° 18’ N., 69° 45’ W.
42° 56’ N., 69° 45’ W.
42° 56’ N., 69° 32’ W.
42° 30’ N., 69° 32’ W.
42° 30’ N., 70° 24’ W.
42° 40’ N., 70° 24’ W.
42° 40’ N., 70° 37’ W.
43° 04’ N., 70° 37’ W.
43° 04.1’ N., 70° 36.7’ W.
43° 18’ N., 70° 25.4’ W. (NW Corner)
In addition to those gear
modifications currently implemented
under the ALWTRP at 50 CFR 229.32,
the following gear modifications are
required in the DAM zone. If the
requirements and exceptions for gear
modification in the DAM zone, as
described below, differ from other
ALWTRP requirements for any
overlapping areas and times, then the
more restrictive requirements will apply
in the DAM zone. Special note for
gillnet fishermen: a portion of this DAM
zone overlaps the year-round Western
Gulf of Maine Closure Area for
Northeast Multispecies found at 50 CFR
648.81(e).Due to this closure, sink
gillnet is prohibited from this portion of
the DAM zone.
Lobster Trap/pot Gear
Fishermen utilizing lobster trap/pot
gear within portions of Northern Inshore
State Trap/Pot Waters, 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.
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:
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7825
1. Groundlines must be made of
sinking line. Floating groundlines are
prohibited;
2. All buoy lines must be made of
sinking line, except the bottom portion
of the line, which may be a section of
floating line not to exceed one-third the
overall length of the buoy line;
3. Fishermen are allowed to use two
buoy lines per trawl; and
4. A weak link with a maximum
breaking strength of 1,500 lb (680.4 kg)
must be placed at all buoys.
Anchored Gillnet Gear
Fishermen utilizing anchored gillnet
gear within the portions of 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 22,
2009], through 2400 hours [March 8,
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
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Federal Register / Vol. 74, No. 33 / Friday, February 20, 2009 / Rules and Regulations
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
VerDate Nov<24>2008
16:40 Feb 19, 2009
Jkt 217001
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)
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Dated: February 17, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E9–3669 Filed 2–17–09; 4:15 pm]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No.0812171612–9134–02]
RIN 0648–XM21
Fisheries Off West Coast States;
Coastal Pelagic Species Fisheries;
Annual Specifications
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; closure of directed
fishing for Pacific sardine.
SUMMARY: NMFS issues this final rule to
implement the annual harvest guideline
(HG) and management measures for
Pacific sardine in the U.S. exclusive
economic zone (EEZ) off the Pacific
coast for the fishing season of January 1,
2009, through December 31, 2009. This
HG has been determined according to
the regulations implementing the
Coastal Pelagic Species (CPS) Fishery
Management Plan (FMP) and establishes
allowable harvest levels for Pacific
sardine off the Pacific coast. This rule
also announces that the directed fishing
harvest total for the first allocation
period (January 1 - June 30) has been
reached and therefore directed fishing
for Pacific sardine is now closed until
July 1, 2009.
DATES: Effective February 20, 2009
through December 31, 2009, except for
the directed harvest closure that is
effective through June 30, 2009.
ADDRESSES: Copies of the report
‘‘Assessment of Pacific Sardine Stock
for U.S. Management in 2008’’ or the
Final Regulatory Flexibility Analysis
(FRFA) prepared for this final rule may
be obtained from the Southwest
Regional Office, Rodney R. McInnis,
Regional Administrator, Southwest
Region, NMFS, 501 West Ocean Blvd.,
Suite 4200, Long Beach, CA 90802.
FOR FURTHER INFORMATION CONTACT:
Joshua Lindsay, Southwest Region,
NMFS, (562) 980–4034.
SUPPLEMENTARY INFORMATION: The CPS
FMP, which is implemented by
regulation at 50 CFR part 660, subpart
E:\FR\FM\20FER1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Rules and Regulations]
[Pages 7824-7826]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3669]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 090213177-9179-01]
RIN 0648-XN40
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 1,920
nm\2\ (6,586 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 22, 2009], through
2400 hours [March 8, 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
[[Page 7825]]
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 February 10, 2009, a vessel survey reported an aggregation of 10
right whales in the general proximity of 43[deg] 00' N latitude and
70[deg] 11' W longitude. The position lies 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] 18' N., 70[deg] 25.4' W. (NW Corner)
43[deg] 18' N., 69[deg] 45' W.
42[deg] 56' N., 69[deg] 45' W.
42[deg] 56' N., 69[deg] 32' W.
42[deg] 30' N., 69[deg] 32' W.
42[deg] 30' N., 70[deg] 24' W.
42[deg] 40' N., 70[deg] 24' W.
42[deg] 40' N., 70[deg] 37' W.
43[deg] 04' N., 70[deg] 37' W.
43[deg] 04.1' N., 70[deg] 36.7' W.
43[deg] 18' N., 70[deg] 25.4' W. (NW Corner)
In addition to those gear modifications currently implemented under
the ALWTRP at 50 CFR 229.32, the following gear modifications are
required in the DAM zone. If the requirements and exceptions for gear
modification in the DAM zone, as described below, differ from other
ALWTRP requirements for any overlapping areas and times, then the more
restrictive requirements will apply in the DAM zone. Special note for
gillnet fishermen: a portion of this DAM zone overlaps the year-round
Western Gulf of Maine Closure Area for Northeast Multispecies found at
50 CFR 648.81(e).Due to this closure, sink gillnet is prohibited from
this portion of the DAM zone.
Lobster Trap/pot Gear
Fishermen utilizing lobster trap/pot gear within portions of
Northern Inshore State Trap/Pot Waters, 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.
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 sinking line. Floating groundlines
are prohibited;
2. All buoy lines must be made of sinking line, except the bottom
portion of the line, which may be a section of floating line not to
exceed one-third the overall length of the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 1,500 lb (680.4
kg) must be placed at all buoys.
Anchored Gillnet Gear
Fishermen utilizing anchored gillnet gear within the portions of
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 22, 2009], through 2400 hours [March 8, 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
[[Page 7826]]
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 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: February 17, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E9-3669 Filed 2-17-09; 4:15 pm]
BILLING CODE 3510-22-S
