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Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 9, 2002 (Volume 67, Number 6)]
[Rules and Regulations]
[Page 1133-1142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja02-15]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 001128334-1312-02; I.D. 091401B]
RIN 0648-AN88
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to amend the regulations that
implement the Atlantic Large Whale Take Reduction Plan (ALWTRP) to
clarify its authority to temporarily restrict the use of lobster trap
and gillnet fishing gear within defined areas to protect North Atlantic
right whales, and to establish criteria and procedures for implementing
a Dynamic Area Management (DAM) program in areas north of 40o N.
latitude, in order to further reduce risk of entanglement of right
whales by such gear.
DATES: This final rule is effective February 8, 2002.
ADDRESSES: Copies of the Environmental Assessment (EA), its Regulatory
Impact Review (RIR), and the
[[Page 1134]]
Final Regulatory Flexibility Analysis (FRFA), are available from the
Protected Resources Division, NMFS, 1 Blackburn Drive, Gloucester, MA
01930-2298. Atlantic Large Whale Take Reduction Team (ALWTRT) meeting
summaries, progress reports on implementation of the ALWTRP, and a
table of the changes to the ALWTRP may be obtained by writing to Diane
Borggaard at the address above or Katherine Wang, NMFS/Southeast
Region, 9721 Executive Center Dr., St. Petersburg, FL 33702-2432.
Copies of the EA, including the RIR and FRFA, can be obtained from the
ALWTRP website listed under the Electronic Access portion of this
document.
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast
Region, 978-281-9145; Katherine Wang, NMFS, Southeast Region, 727-570-
5312; or Patricia Lawson, NMFS, Office of Protected Resources, 301-713-
2322.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several of the background documents for this final rule and the
take reduction planning process can be downloaded from the ALWTRP web
site at http://www.nero.nmfs.gov/whaletrp/. 
Copies of the most recent
marine mammal Stock Assessment Reports may be obtained by writing to
Richard Merrick, NMFS, 166 Water St., Woods Hole, MA 02543 or can be
downloaded from the Internet at http://www.wh.whoi.edu/psb/sar2000.pdf.
In addition, copies of the document entitled ``Defining Triggers for
Temporary Area Closures to Protect Right Whales from Entanglements:
Issues and Options'' are available by writing to Diane Borggaard, (see
ADDRESSES) or can be downloaded from the Internet at http://
www.nero.nmfs.gov/whaletrp/.
Background
The ALWTRP was developed pursuant to section 118 of the Marine
Mammal Protection Act (MMPA) to reduce the level of serious injury and
mortality of four species of large whales (fin, humpback, minke, and
North Atlantic right) in East Coast lobster trap and finfish gillnet
fisheries. The background for the take reduction planning process and
development of the ALWTRP is provided in the preambles to the proposed
(62 FR 16519, April 7, 1997), the interim final (62 FR 39157, July 22,
1997), final (64 FR 7529, February 16, 1999), and interim final (65 FR
80368, December 21, 2000) rules implementing the ALWTRP. Copies of
these documents and supporting Environmental Assessments are available
from the NMFS, Northeast Region (see ADDRESSES).
This final rule implements approved modifications to the ALWTRP
deemed by NMFS necessary to satisfy requirements of the Endangered
Species Act (ESA) and MMPA. Details concerning the justification for
and development of the DAM program and the implementing regulations
were also provided in the preamble to the proposed rule (66 FR 50160,
October 2, 2001) and are not repeated here.
DAM Trigger Mechanism
Areas that will be considered for DAM are limited to areas north of
40o N latitude. A DAM zone will be triggered by a single reliable
report from a qualified individual of 3 or more right whales within an
area (75 nautical miles (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 based upon which a DAM zone would be triggered.
Procedures and Criteria to Establish a DAM Zone
NMFS will use the following procedures and criteria to establish a
DAM zone:
1. A circle with a radius of at least 2.8 nm (5.2 km) would be
drawn around each individual sighting (event). This radius would be
adjusted for the number of right whales seen in the sighting such that
the density of 4 right whales per 100 nm2 (185.3 km2) is maintained.
The length of the radius would be determined by taking the inverse of
the 4 right whales per 100 nm2 (185.3 km2) density, which is 24 nm2
(44.5 km2) per whale. This is equivalent to a radial distance of 2.8 nm
(5.1 km) for a single right whale sighted, 3.9 nm (7.3 km) for two
whales, 4.8 nm (8.9 km) for three whales, etc.
2. If any circle or group of contiguous circles includes 3 or more
right whales, this core area and its surrounding waters would be a
candidate DAM zone.
Criteria to Determine the Extent of the DAM Zone
Once NMFS identifies a core area containing 3 or more right whales,
as described here, it would expand this initial core area to provide a
buffer in which the right whales could move and still be protected.
NMFS will determine the extent of the DAM zone as follows:
1. A larger circular zone will be drawn to extend 15 nm (27.8 km)
from the perimeter of a circle around each core area.
2. The DAM zone will then be defined by a polygon drawn outside,
but tangential to the circular buffer zone(s). The latitudinal and
longitudinal coordinates of the corners of the polygon will then be
identified.
Decision Factors for Implementing Restrictions in a DAM Zone
Once a DAM zone is identified, NMFS will determine whether to
impose, in the zone, restrictions on fishing and/or fishing gear. This
determination would be based on a variety of 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.
Public Notification
If NMFS determines restrictions are necessary in the zone, NMFS may
require removal of all gillnet and lobster trap gear from the zone
within 2 days of the publication of a notice in the Federal Register.
At this time, NMFS does not have criteria developed that would allow
gillnet or lobster trap gear to be fished within a DAM zone. NMFS may
allow fishing within a DAM zone with specified gear if that gear is
determined to sufficiently reduce the risk of entanglement to right
whales. NMFS may identify acceptable fishing practices and gear in a
Federal Register document. Gear not in compliance with the imposed
restriction may not be set in the DAM zone after the effective date of
the restriction. NMFS will publish a document in the Federal Register
and other appropriate media announcing the establishment of the zone
with restrictions imposed. It will also announce them immediately upon
filing the document with the Office of the Federal Register, which is
generally 3 to 5 days before publication of the notice in the Federal
Register.
If NMFS decides not to implement restrictions within a DAM zone, it
will issue an alert to fishermen using
[[Page 1135]]
appropriate media to inform them of the fact that right whale density
in a certain area has triggered a DAM zone. In addition, NMFS will
provide detailed information on the location of the DAM zone and the
number of animals sighted within it.
Duration of DAM Zones
NMFS will maintain a DAM zone for a minimum of 15 days from the
date NMFS issues an alert (in the case of a zone where no restrictions
are imposed), or the 15-day period from the effective date of
restrictions (in the case where restrictions are imposed). At the
conclusion of a 15-day period, the DAM zone would automatically expire,
unless whales are still sighted in the DAM zone, in which case, NMFS
will continue the zone to further protect concentrations of right
whales. Each extension would be for up to 15 days unless NMFS extends
the time frame based on additional sightings.
NMFS may remove restrictions on the DAM zone or rescind an alert
prior to its automatic expiration if there are survey efforts and no
confirmed sightings of right whales by qualified individuals for 1 week
or if other credible evidence indicates that right whales have left the
designated zone. NMFS will notify the public by issuing a notification
in the Federal Register and through other appropriate media.
Comments and Responses
Approximately 58 letters of comment were received during the public
comment period on the proposed rule, which ended on November 1, 2001. A
complete summary of the comments and NMFS' responses is provided here.
Comment 1: Several letters were received from private individuals
in support of NMFS' proposal to implement DAM. Most of those letters
expressed serious concerns about the future survival of North Atlantic
right whales. In addition, these comments encouraged NMFS to work
closely with gillnet and lobster fishermen to protect right whales from
future entanglements in fishing gear.
Response: NMFS will continue to work with the ALWTRT and members of
the fishing industry to minimize interactions between right whales and
fishing gear. NMFS believes that DAM will reduce serious injuries and
mortalities to right whales from entanglements by temporarily
restricting lobster trap and gillnet fishing gear in areas where right
whales congregate to feed. Comment 2: Several comments questioned the
DAM trigger mechanism. Many felt that it was inappropriate to base a
DAM zone on a single sighting by one person. In addition, the Maine
Department of Marine Resources requested that NMFS determine a clearer
definition of ``qualified individual.'' It was suggested that NMFS
establish a tiered process for judging whether or not a report is
credible and further suggested that NMFS request corroborating
information from the individual providing the report while continuing
to verify the initial report during the 5-to 7-day period between
filing notice with the Federal Register and publication. Furthermore,
there were concerns that false sightings would be reported by
disgruntled crew or competitors identifying themselves as ``qualified
individuals'' wishing to cause hardship on fishermen by closing down
their fishing grounds.
Response: NMFS anticipates that it may receive false or exaggerated
reports of right whale sightings from people claiming to be ``qualified
individuals.'' Therefore, NMFS intends to thoroughly investigate all
reports for credibility and reliability. The definitions of ``qualified
individual'' and ``reliable report'' were developed with this intent in
mind. In addition, NMFS will require that the individual providing the
report identify him or herself and the vessel from which the sighting
was made. Anonymous reports will not be considered reliable and,
therefore, cannot trigger a DAM zone. Furthermore, a document prepared
by the Northeast Fisheries Science Center entitled, ``Defining Triggers
for Temporary Area Closures to Protect Right Whales from Entanglements:
Issues and Options,'' concluded that a single sighting is appropriate
because foraging whales are at risk of entanglement whenever they are
feeding, regardless of how quickly a food source is consumed. (Clapham
and Pace, 2001). Therefore, to trigger a DAM zone, NMFS feels that a
single report of right whales is an adequate trigger mechanism. Simply
stated, as long as a single sighting can establish that the whales are
feeding in an area, and not merely transiting through, no additional
sightings would be necessary based on the understanding that feeding
whales are at a greater risk of entanglement.
Comment 3: Many commenters questioned the implementation of a DAM
zone based on the proposed trigger of three right whales. Comments from
lobstermen and state agencies indicated that NMFS should adopt the
trigger of eight whales sighted twice over 2 days, which was discussed
at the ALWTRT meeting. Commenters encouraged NMFS to explore all other
information available to ensure that the three-whale trigger is
appropriate for the implementation of a DAM zone.
Response: The issue of the number of right whales that would
trigger a DAM zone was discussed at the ALWTRT meeting. However, the
ALWTRT did not produce any consensus recommendations on any one set of
whale density criteria and/or triggering levels. NMFS determined that a
trigger based on the sighting of three right whales was appropriate
after considering the analysis of sighting data performed by the
Northeast Fisheries Science Center. Foraging whales are assumed to be
at risk of entanglement and DAM was designed to respond quickly to
situations where feeding whales and fishing gear overlap in order to
reduce the chances that a whale will get entangled. Therefore, the
scientific research conducted on DAM sought to establish the smallest
number of right whales that could be advanced as a reliable indicator
that the animals were engaged in feeding behavior. The scientists
concluded that a sighting of three or more right whales in an area was
a reasonably good indicator that the animals were residing in an area
to feed. (Clapham and Pace, 2001).
Comment 4: Comments were received expressing concern about the size
of the DAM zone. In particular, several lobstermen felt that it would
take months to remove their gear from a DAM area of 1,000 nm or more
and suggested that DAM areas of 10 nm would be more realistic for
compliance by the industry. One lobsterman estimated that it would take
12 trips, each lasting up to 10 days, to remove gear from a 1,000-nm
DAM zone. In addition, many comments from fishermen explained that if
all gear is removed from the DAM zone it will be reset around the
boundary of the area, thus creating a wall around the DAM zone, which
may create a greater risk of entanglement to right whales.
Response: NMFS appreciates the amount of effort that may be
required to remove gillnet and lobster trap gear from a DAM zone. The
analysis of sighting data presented in the document ``Defining Triggers
for Temporary Area Closures to Protect Right Whales from Entanglements:
Issues and Options,'' found that a 15-nm buffer around the initial core
area would enclose all of the whales sighted, irrespective of their
movements during the course of the event. (Clapham and Pace, 2001). The
size of the DAM zone is dependent on the number of whales that would
trigger an event.
Comment 5: Several comments were received that expressed concerns
about the amount of time proposed for
[[Page 1136]]
compliance with gear restrictions within DAM zones. For example, a
comment received from a lobsterman stated that it would be impossible
to remove all lobster gear in the time allotted under the proposed rule
and, furthermore, the chaos and confusion created would present a
safety hazard.
Response: NMFS appreciates the time, effort, and risk involved in
hauling fishing gear and removing it from an area that has been
designated for DAM. In order to provide fishermen with time to respond
to the implementation of gear restrictions within a DAM zone, NMFS will
issue a notice at the time the notice is filed with the Office of the
Federal Register, which is usually 3 to 5 days prior to the regulation
being published in the Federal Register. Once the decision has been
made to remove gear from a DAM zone, NMFS will notify the commercial
fisheries affected as quickly and comprehensively as reasonably
possible. In addition, when a right whale sighting meets the DAM
trigger, NMFS will issue an alert via email to all ALWTRT members and
post the alert on the website at www.nero.nmfs.gov/whaletrp/. NMFS
hopes that members of the ALWTRT who receive an alert will circulate
the information to other interested parties to help insure that the
fishermen who may have to eventually remove gear from a DAM zone have
time to respond. Fishermen, industry representatives, environmental
groups, and all others interested in receiving alerts and notices over
the Internet should provide their email address to the Northeast
Regional Office (See ADDRESSES section). NMFS will also mail letters
providing notice to those who request it by contacting the Northeast
Regional Office (See ADDRESSES section). In addition, NMFS will
investigate using a news bulletin service to provide notice through the
local press.
Comment 6: Several comments were received that questioned the
length of the restricted period. In particular, the Massachusetts
Division of Marine Fisheries felt that the rule making process and the
time required for fishermen to remove all of their gear from a DAM area
would exceed the duration of most sighting ``events.''
Response: NMFS intends to respond to reports of right whale
sightings that trigger a DAM as quickly as possible in order to insure
that restrictions are implemented in a timely fashion to maximize
protection for the animals. See NMFS' response to the previous comment.
NMFS believes that an initial restricted period of 15 days with the
ability for extension is an adequate and appropriate management measure
for protecting right whales. Research conducted by the Northeast
Fisheries Science Center concluded that a 15-day restricted period
represented the average mean duration of the 13 documented events that
began with an initial sighting of three or more right whales. (Clapham
and Pace, 2001). Therefore, based on these findings, NMFS established
an initial restricted period of at least 15-days with additional
extensions to the restricted period if whales continue to meet the
trigger for DAM.
Comment 7: A comment from an environmental group expressed concern
with the automatic expiration of the DAM zone after 15 days and felt
that NMFS should be required to lift restrictions, through notification
in the Federal Register, once the whales are no longer sighted in the
area.
Response: NMFS intends to provide protection for concentrations of
right whales that remain present in the area after the conclusion of
the 15-day period, if necessary and appropriate, by extending the
restricted period, through notification in the Federal Register. NMFS
believes that an initial restricted period of 15 days with the ability
for extension is an adequate and appropriate management measure for
protecting right whales. Research conducted by the Northeast Fisheries
Science Center concluded that a 15-day restricted period represented
the average mean duration of the 13 documented events that began with
an initial sighting of three or more right whales. (Clapham and Pace,
2001). Therefore, based on these findings, NMFS established an initial
restricted period of at least 15 days with additional extensions to the
restricted period if whales continue to meet the trigger for DAM.
Comment 8: Several comments were received from fishermen who felt
it is unnecessary to implement DAM because the gear they are currently
utilizing is already considered ``whale safe''. Lobstermen fishing in
Cape Cod Bay with sinking and neutrally buoyant line and weak links
felt that this gear adequately reduces the risk of serious injury or
mortality to right whales from entanglements without NMFS requiring
further alterations or requiring the removal of gear from the area.
Lobstermen also expressed concerns about the economic impact of DAM on
their business and added that changing over to neutrally buoyant and
sinking line has already been very costly, and expressed displeasure at
what was perceived as NMFS' apparent disregard for the efforts of the
ALWTRT towards developing gear that can coexist with whales without
making closures necessary. In addition, the Massachusetts Division of
Marine Fisheries (DMF) encouraged NMFS to adopt more universal ``whale
safe'' gear modifications instead of implementing DAM because improving
devices, such as buoy line breakaways, eliminates the need to
completely remove gear from an area. Conversely, several environmental
groups commenting on this issue recommended that NMFS require the
removal of all lobster trap and gillnet gear from the DAM zone, in
light of the fact that NMFS and the ALWTRT can not agree on gear
modifications that sufficiently reduce the risk of entanglement.
Response: NMFS will continue to work with the ALWTRT to modify and
develop fishing gear that adequately reduces the risk of entanglement
to large whales and when such gear is deemed adequate, NMFS may allow
it to be used for fishing within DAM zones. In addition, NMFS
encourages fishermen to collaborate with the gear research team towards
developing fishing gear that completely reduces the risk of
entanglement to right whales. However, until then, the most reliable
means for reducing the risk of entanglements to right whales within DAM
zones is by requiring the complete removal of all lobster trap and
gillnet fishing gear. See response to comment 18.
Comment 9: A comment from an environmental group questioned how
NMFS planned to enforce voluntary compliance with gear restrictions
within DAM zones.
Response: In the event that right whale sightings trigger a DAM
zone, NMFS will determine whether to impose restrictions on fishing
and/or fishing gear. This determination will be based on a variety of
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 to 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. If NMFS determines restrictions are
necessary in the zone, NMFS may require removal of all gillnet and
lobster trap gear from the zone within two days of the publication of
the notice in the Federal Register. If NMFS decides not to implement
restrictions within the DAM zone, NMFS will follow the protocol
developed cooperatively between NMFS and the ALWTRT for voluntary
compliance. NMFS will issue an alert to fishermen using appropriate
media to inform them of the fact that right whale density in a certain
area has triggered a
[[Page 1137]]
DAM zone. In addition, NMFS will provide detailed information on the
location of the DAM zone and the number of animals sighted within it.
Furthermore, NMFS will request that fishermen voluntarily remove
lobster trap and gillnet gear from the DAM zone and no additional gear
be set inside it. NMFS believes providing this information to
interested parties and requesting compliance with gear restrictions,
which is in every fisherman's interest, is an appropriate means for
maintaining communication with industry while providing protection for
right whales.
Comment 10: Several comments suggested that the regulation of state
waters would be better served if left to state agencies. Specifically,
lobstermen fishing in Cape Cod Bay felt that NMFS should follow the
Massachusetts DMF approach to developing rules to reduce entanglements.
Other commenters from the lobster fishing industry expressed opposition
to Federal regulations that would supersede rules already imposed
within state waters because of the feeling that DMF knows the state
waters better than NMFS. In addition, a comment received from a member
of the lobster industry encouraged NMFS to allow the State of Maine to
assess and provide the appropriate regulations in consideration of the
unique variability and spacial distribution between right whales and
fishing gear off the Maine coast. The Maine Department of Marine
Resources echoed these concerns and also believed that the state whale
protection plans offer the greatest chance of success.
Response: Although the MMPA provides NMFS with authority to
regulate in State waters, states can develop equally protective or more
protective restrictions if they choose, and NMFS encourages such
action. Further, NMFS has cooperative agreements in place with a number
of Atlantic states, which enable states to enforce requirements of the
MMPA and its implementing regulations.
NMFS tries to coordinate with states on other issues as well. For
example, with regard to gear markings that yield individual vessel
information, many of the state and Federal fishery management plans
currently require marking of buoys and/or traps with individual vessel
identification. NMFS plans to continue to work with state fisheries
agencies to investigate gear marking coast-wide and identify gaps in
marking of surface gear, gillnets, and traps. This information will be
presented to the ALWTRT for future consideration
Comment 11: Comments were received that expressed concerns about
the procedure for providing notice to fishermen in the event of a DAM
closure. For example, the Massachusetts DMF felt that the May 2001, DAM
closure was a failure because NMFS did not contact all of the fishermen
affected and questioned whether NMFS could dedicate the staff time to
informing fishermen of future DAM closures. Another commenter
questioned how NMFS would provide notification to fishermen prior to
the publication in the Federal Register.
Response: Once the decision has been made to remove gear from a DAM
zone, based on the criteria outlined in the preamble, NMFS will notify
the commercial fisheries affected as quickly and comprehensively as
possible. In order to provide fishermen with time to respond to the
implementation of gear restrictions within a DAM zone, NMFS will issue
a notice at the time the notice is filed with the Office of the Federal
Register, which is usually 3 to 5 days prior to publication in the
Federal Register. In addition, when a right whale sighting meets the
DAM trigger, NMFS will issue an alert via email to all ALWTRT members
and post the alert on the website at www.nero.nmfs.gov/whaletrp/. NMFS
hopes that members of the ALWTRT who receive an alert will circulate
the information to other interested parties to help insure that the
fishermen who may have to eventually remove gear from a DAM zone have
time to respond. Fishermen, industry representatives, environmental
groups, and all others interested in receiving alerts and notices over
the internet should provide their e-mail address to the Northeast
Regional Office. (See the ADDRESSES section). NMFS will also mail
letters providing notice to those who request it by contacting the
Northeast Regional Office in addition to posting such notification on
the Northeast Regional Office web site at www.nero.nmfs.gov. In
addition, NMFS will investigate using a news bulletin service to
provide notice through the local press.
Comment 12: Several commenters pointed out that the procedure for
creating a DAM zone in the proposed rule differed from how the process
is described in the document ``Defining Triggers for Temporary Area
Closures to Protect Right Whales from Entanglements: Issues and
Options.''
Response: NMFS agrees and this inconsistency has been corrected in
this final rule. The justification and rationale for the correction can
be found in the preamble of this final rule under ``Changes in the
Final Rule from the Proposed Rule.''
Comment 13: Many comments received questioned the decision factors
NMFS proposed when considering whether to impose restrictions on
fishing and/or fishing gear within a DAM zone. In particular, several
environmental groups felt that, except for the consideration of weather
conditions as they relate to the safety of life at sea, the factors
listed in the proposed rule should not influence the decision to impose
restrictions on fishing because such restrictions should be automatic
once a concentration of right whales triggers a DAM zone. It was also
noted that NMFS should require the complete removal of all gear
automatically once a DAM zone has been triggered. A letter from the
Marine Mammal Commission also expressed concerns over the discretion
reserved by NMFS with respect to whether to impose restrictions within
a DAM zone and felt that the factors should only be considered for
setting a deadline when gear should be removed.
Response: NMFS believes that the agency should be provided with
some level of discretion when deciding whether to impose gear
restrictions within a DAM zone. Therefore, NMFS will base its decision
on the enumerated factors that are relevant based on the circumstances
surrounding the implementation of a DAM zone.
Comment 14: Several comments from environmental groups expressed
concerns over the proposed regulatory language which provides NMFS with
the option of deciding whether or not to require the complete removal
of lobster trap and gillnet gear from a DAM zone. For example, one
commenter felt that this discretion merely maintains the status quo
and, therefore, would not sufficiently reduce jeopardy. Another
commenter felt that, because NMFS and the ALWTRT cannot agree on gear
modifications that would sufficiently reduce the risk of entanglement
to right whales, NMFS should require the complete removal of all
lobster trap and gillnet gear from the DAM zone.
Response: NMFS believes that reserving the discretion to decide
whether to implement gear restrictions within DAM zones gives the
agency a reasonable amount of flexibility to respond to the vast
multitude of scenarios under which a DAM zone may be triggered. NMFS
feels that DAM, in combination with the proposed rules for Seasonal
Area Management (SAM) and additional gear modifications, are
collectively sufficient to remove the likelihood of jeopardy to the
continued existence of North Atlantic right whales.
[[Page 1138]]
DAM was specifically included as one of the multiple management
components to the Reasonable and Prudent Alternative (RPA) discussed in
the four BOs on the Fishery Management Plans for spiny dogfish,
monkfish, multispecies, and Federal regulations for the American
lobster fishery. According to the RPA, DAM, SAM, and expanded gear
modifications were developed to cumulatively eliminate serious
mortality and serious injuries of right whales in gillnet and lobster
trap gear, eliminate serious and prolonged entanglements, and
significantly reduce the total number of right whale entanglements in
gillnet and lobster trap gear. NMFS does not feel that reserving the
discretion on deciding whether to implement gear restrictions within
DAM zones implies that the agency will fail to respond when sightings
of right whales trigger DAM. In addition, while NMFS feels that, at the
current time, requiring the complete removal of gillnet and lobster
trap gear from within a DAM zone is the appropriate means for reducing
the risk of entanglement to right whales, the agency continues to
encourage fishermen and gear researchers to work on innovating and
developing ways to improve fishing gear to avoid serious injury and
mortality from entanglements. In recognition of the fact that gear
research and development is ongoing, NMFS felt it was important to
maintain the option of allowing fishing with ``risk averse'' gear
inside a DAM zone in the event that such gear is perfected and
approved.
Comment 15: One commenter suggested that NMFS clarify the
circumstances under which a DAM would continue and how it would be
limited. The commenter expressed concern regarding a hypothetical
situation where, during the 15-day restricted period for a DAM zone, a
second grouping of whales triggered another separate DAM zone outside
but adjacent to the initial zone specified in the notice. Based on this
scenario, the commenter was concerned that the initial DAM zone would
be enlarged to create a single, very large closure.
Response: In the event that right whales are sighted and a DAM zone
is triggered, NMFS would maintain the area for at least 15 days. If a
DAM zone is triggered, but no restrictions are implemented, the 15-day
period would begin from the time NMFS issues the alert. If, on the
other hand, NMFS implements gear restrictions within the DAM zone, the
15-day period would begin on the date the restrictions become effective
(i.e., 2 days after publication in the Federal Register). In response
to the hypothetical situation described, while it is possible that
there may be some days that the successive DAM zones overlap, the first
DAM zone will automatically expire after 15 days, unless NMFS decided
to extend the restricted period to further protect concentrations of
right whales. However, NMFS also has the option of removing
restrictions prior to the 15-day automatic expiration if subsequent
survey efforts confirm that right whales have left the designated area.
The second DAM zone would be maintained separately with its own 15-day
restricted period.
Comment 16: The U.S. Coast Guard commented on aerial patrols to
assist in confirming sightings and enforcing restrictions within the
DAM zone. Due to a re-prioritization of law enforcement missions, the
Coast Guard will only be able to devote minimal aircraft hours to
assist NMFS in the implementation and enforcement of DAM. In addition,
surface patrols will be more limited than in the past. Finally, the
U.S. Coast Guard stated that, if fishing gear is modified and approved
for use within a DAM zone, the U.S. Coast Guard will not be able to
assist in enforcement of those restrictions because they are not
equipped or trained to haul fixed gear.
Response: NMFS greatly appreciates the support the U.S. Coast Guard
has provided in the past for implementing and enforcing management
programs designed to protect and conserve marine mammals. These two
agencies have a strong commitment to cooperating in the development,
implementation, and enforcement of programs for marine protected
resources, including North Atlantic right whales and other marine
mammals. NMFS acknowledges the fact that the duties of the U.S. Coast
Guard have been re-prioritized in light of recent national events. NMFS
notes, however, that other means of enforcing the DAM restrictions
exist aside from pulling gear and that other law enforcement resources
can be used to enforce DAM restrictions.
Comment 17: Several comments were received expressing concerns over
the burden placed on American fishing to protect whales while only a
token effort is directed towards ship strikes and Canadian fixed gear.
Response: NMFS acknowledges that ship strikes and entanglements
with fishing gear of foreign flag vessels also cause serious injury and
mortality to right whales. NMFS is currently addressing these threats
through other means and policy discussions. NMFS is issuing this final
rule specifically to address commercial fishery impacts from four
fisheries. This final rule stems from a component of the RPA resulting
from consultations required under the ESA on the continued operation of
the monkfish, spiny dogfish, multispecies, and lobster fisheries.
However, the ALWTRP is designed to respond to the threats posed by
domestic fishing gear. NMFS appreciates the continued involvement of
the gillnet and lobster trap fisheries in the ALWTRT and their efforts
to reduce serious injury and mortality to marine mammals, especially
right whales. NMFS understands that right whales are injured and killed
by other sources and will continue to work toward reduction of those
impacts. For example, NMFS is currently taking into consideration
recommendations from the Northeast Implementation Team for the Recovery
of the Northern Right whale and the Humpback whale and the Southeast
U.S. Right Whale Recovery Plan Implementation Team on ways to reduce
the impacts of ship strikes from the recreational and commercial
shipping sectors. In addition, NMFS is working on a proposed rule to
regulate whale watching. Finally, NMFS is working with representatives
from the Canadian Department of Fisheries and Oceans to develop and
implement protective measures for right whales in Canadian waters.
Comment 18: A comment received from an environmental groups
requested that, if NMFS is planning on allowing gear to be fished
within a DAM zone that is determined to sufficiently reduce the risk of
entanglement to right whales, then NMFS should clarify what constitutes
a ``sufficient'' reduction.
Response: Although NMFS is considering gillnet and lobster trap
gear modifications as part of the proposed rule for the SAM program, at
present, NMFS does not have criteria developed that would allow gillnet
or lobster trap gear to be fished within a DAM zone. NMFS may allow
fishing within a DAM zone with specified gear if that gear is
determined to sufficiently reduce the risk of entanglement to right
whales. The DAM program is designed for a rapid response to the
presence of right whales in areas at times that are generally
unpredictable. The regulatory text and preamble of the proposed rule
notes that any gear modifications determined by NMFS to sufficiently
reduce the risk of entanglement to right whales would be identified in
the Federal Register notice implementing the DAM zone. To the extent
practicable, NMFS will provide a separate notification in the Federal
Registerregarding any determination that gear modifications
sufficiently reduce the risk of entanglement to right
[[Page 1139]]
whales in DAM zones in advance of imposition of any DAM zones with
those gear modifications.
Comment 19: One commenter suggested that NMFS initiate inter-agency
and international cooperation to assist in the development of programs
to protect right whales.
Response: NMFS notes that under section 7 of the Endangered Species
Act, Federal agencies must consult with NMFS to insure that any action
authorized, funded, or carried out by such agency (referred to as the
``action agency'') is not likely to jeopardize the continued existence
of any endangered or threatened species. After discussions with the
action agency, if NMFS concludes in a biological opinion that an
activity is likely to jeopardize the continued existence of any
endangered or threatened species, NMFS must include in its opinion any
RPAs to avoid the likelihood of jeopardy to the listed species from the
Federal activity. Furthermore, NMFS has established Memoranda of
Agreement between several Federal agencies, such as the U.S. Navy, U.S.
Coast Guard, and U.S. Army Corps of Engineers, to help better protect
and recover listed species. With respect to international cooperation,
NMFS is continuing to work with the Canadian government to develop and
implement protective measures for right whales in Canadian waters. In
addition, NMFS is working with Canadian whale biologists and support
teams to improve and expand disentanglement efforts in Canadian waters.
Comment 20: One commenter suggested that NMFS issue regulations to
close portions of the Right Whale Critical Habitat Areas to gillnet and
lobster fishing and completely prohibit the use of ``high risk'' types
of fishing gear in critical habitat during periods of known use by the
whales.
Response: Although NMFS has not specifically defined or designated
``high risk'' types of fishing gear, data collected from past
entanglements indicates that serious injuries and mortalities to right
whales have occurred from interactions with gear used by the anchored
gillnet and lobster trap fisheries. As a result, NMFS has implemented
regulations that restrict the use of these gear types within right
whale critical habitat during the months that the whales are present in
these areas. For example, from April 1 to June 30, no lobster trap or
anchored gillnet gear may be set in the Great South Channel Critical
Habitat. In addition, from January 1 to May 15, anchored gillnetting is
prohibited within the Cape Cod Bay Critical Habitat. Lobster trap
fishing is permitted during this restricted period within Cape Cod Bay
Critical Habitat, but the gear must be set with weak links and sinking
lines that reduce the risk of serious injury and mortality from
entanglements.
Comment 21: NMFS should develop take reduction plans (TRPs) that
would mitigate bycatch of all strategic stocks of marine mammals in
commercial fisheries.
Response: NMFS has chosen to develop TRPs on particular stocks.
NMFS manages multiple stocks through some TRPs such as the ALWTRP.
Decisions on whether a TRP addresses single or multiple stocks is
dependent on the similarities of the fisheries that impact these
stocks. No take reduction team can be tasked with suggesting
recommendations to mitigate bycatch of all strategic marine mammal
stocks in commercial fisheries, and NMFS does not have the funds to
develop additional take reduction teams at this time. Presently, NMFS
is considering the take reduction teams currently formed, and the
success of each TRP toward reaching the goals of the MMPA, in order to
determine whether funds could be redirected to support additional take
reduction teams.
Comment 22: One commenter noted that NMFS must undertake an
adequate program of research and development for the purpose of
devising improved fishing methods and gear so as to reduce the
incidental taking of right whales in commercial fishing.
Response: NMFS is committed to gear research and development, and
will expand this program as funding allows. NMFS has gear laboratories
and research teams that specifically focus on gear development and
testing. Additionally, NMFS contracts with researchers, individuals and
companies to develop gear solutions. Many of the current TRP measures
are based on the outcome of such gear research (e.g. weak links)
conducted and/or funded by NMFS. The gear modifications are important
to reduce interactions between right whales (and other large whales)
and fishing gear to further reduce serious injury and mortality of
large whales due to entanglement in fishing gear. In addition, NMFS
intends to continue to support the contributions made by the ALWTRT's
Gear Advisory Group. NMFS is collaborating with other organizations to
host a gear workshop, tentatively scheduled for February 2002, to
investigate additional options and gear enhancements for gillnet and
lobster trap gear. The results of this workshop will be distributed to
the ALWTRT for consideration of future gear recommendations to NMFS.
Comment 23: Several commenters expressed concerns over the lack of
notification regarding the publication of the proposed rules.
Response: Time constraints prevented NMFS from holding public
hearings on the current regulations; however, NMFS used other ways to
let the public know that public comments were being sought on a
proposed rule to address commercial fishery/large whale interactions.
In addition to publication of the proposed rule in the Federal
Register, efforts included distributing the information to ALWTRT
members who represent various stakeholder groups and provide valuable
links to distribute information to the public, NOAA press release,
announcement in NOAA's FishNews, and communications with state
managers. NMFS will consider other means of communicating with the
public and welcomes recommendations on ways to disseminate such
information such as through letters to permit holders.
Comment 24: One commenter suggested that NMFS use emergency
publication to expedite the process for implementing DAM.
Response: NMFS is not planning on using emergency publication to
implement DAM based on the following reasons. Once the agency has
determined to implement gear restrictions within a DAM zone, NMFS
intends to forward the signed document to the Office of the Federal
Register with a request for ``file immediately'' status. As soon as the
notification is filed, NMFS will begin to notify interested parties.
NMFS has found that requesting emergency publication does not
significantly expedite the process for providing notice above what is
being provided in this final rule. However, NMFS will consider
requesting emergency publication if the particular facts of a situation
indicate that doing so would be warranted.
Changes in the Final Rule from the Proposed Rule
This final rule will correct and clarify one of the criteria used
to determine the extent of a DAM zone. The description of the criterion
presented in the proposed rule did not accurately reflect NMFS' intent
in establishing the size of a DAM zone. At issue is the location of the
15 nm (27.8 km) radius that is used to determine the size of a DAM
zone.
As published in the preamble of the proposed rule, a 15-nm (27.8
km) radius from the ``event epicenter'' would be used to draw a larger
circular zone around each core area encompassing a concentration of
right whales. The event epicenter was defined in the proposed rule as
the geographic center of all
[[Page 1140]]
sightings on the first day of an event. However, the criterion
described in the proposed rule does not clearly describe the intent
contained in the reference document. The reference document used to
establish this criterion, ``Defining Triggers for Temporary Area
Closures to Protect Right Whales from Entanglements: Issues and
Options'' (see ADDRESSES for copies), describes the DAM zone buffer as
the boundary of a circle that extends 15 nm (27.8 km) from the
perimeter of a circle around the initial whale sightings or core area.
The DAM zone will then be defined by a polygon drawn outside but
tangential to the circular buffer zone(s). The latitudinal and
longitudinal coordinates of the corners of the polygon will then be
identified.
Therefore, Sec. 229.32(g)(3)(ii) is revised to identify the DAM
zone as a larger circular zone drawn to extend 15 nm (27.8 km) from the
perimeter of a circle around each core area.
Classification
NMFS prepared a FRFA for this rule. A copy of this analysis is
available from NMFS (see ADDRESSES). Five alternatives were evaluated,
including a status quo or no action alternative, the preferred
alternative (PA), and three other alternatives. A summary of that
analysis follows:
(1) The ``No Action'' alternative would leave in place the existing
regulations promulgated under the ALWTRP, but specific criteria and
procedures for DAM would not be included in the regulations. The no
action alternative would result in no additional economic burden on the
fishing industry, at least in the short-term. However, if the status
quo is maintained now, more restrictive and economically burdensome
measures than those in this final rule may be necessary in the future
to protect endangered right whales. The No Action alternative was
rejected because it would not enable NMFS to meet the RPA measures of
the BOs required under the ESA.
(2) NMFS considered but rejected an alternative that would require
different triggers within each respective state jurisdiction as
discussed by the ALWTRT. None of the proposals offered by the states
were supported by data. No information has been presented to
demonstrate the potential for these triggers to result in DAM zones
that would reduce the risk of entanglement to right whales. The ALWTRT
discussed having different triggers within each respective state
jurisdiction. This could only be considered if the state trigger was
found to be more restrictive than the Federal trigger, which is not the
case with the triggers suggested by Maine, Massachusetts and/or Rhode
Island. The state triggers were evaluated as if they would apply
consistently to all waters - federal and state.
(3) NMFS considered but rejected an alternative that would trigger
a DAM zone using the observation of one right whale on a single day. In
addition, a buffer of 15 nm would be drawn around each individual
animal observed. The observation of one or two right whales does not
appear to be a good indicator of residency. The trigger in this
alternative is not effective at predicting residency, and thus may
trigger DAM zones more often than necessary.
(4) NMFS considered but rejected an alternative in which the
trigger and buffer would generally be the same as in the preferred
alternative (PA)(i.e., the observation of four right whales in a 100-
nm2 area and the buffer would be 15 nm), however, instead of imposing a
restriction requiring removal of all lobster gear, a 50-percent
reduction in vertical lines would be required for lobster gear. The
restrictions for gillnet gear would be the same as in the PA which
requires complete removal. Based on right whale sightings data in 2000,
six areas could potentially be closed. Because this alternative would
require the removal of only 50 percent of vertical lines for lobster
gear rather than all vertical lines (i.e. all gear), NMFS is concerned
that this alternative may not be consistent with statutory objectives.
(5) The PA will temporarily restrict lobster trap and gillnet
fisheries when NMFS receives a single reliable report from a qualified
individual of three or more right whales within an area (75 nm2) such
that right whale density is equal to or greater than 0.04 right whale
per nm2. Based on right whale sightings data from 1999 and 2000, a DAM
zone would have been triggered four times in 1999 and six times in
2000. NMFS accepted this alternative as these DAM zones are appropriate
to avoid jeopardizing the continued existence of North Atlantic right
whales and enable NMFS to meet a portion of the RPA in the BO's.
The action is part of the RPA that resulted from the BOs issued by
NMFS, in accordance with section 7 of the ESA, to remove the likelihood
of jeopardy of North Atlantic right whales posed by the continued
operation of the multispecies, spiny dogfish, monkfish and lobster
fisheries. The objective of this action is to reduce the level of
serious injury to and mortality of North Atlantic right whales in East
Coast lobster trap and finfish gillnet fisheries.
NMFS has taken steps to minimize the significant economic impact on
small entities through this PA by reserving discretion to issue an
alert or impose gear restrictions, rather than closing DAM areas, if
these measures would be sufficient to protect concentrations of right
whales. The small entities affected by this final rule are gillnet and
lobster trap fishermen. The geographic areas for consideration for DAM
are limited to areas north of 40 deg. N latitude. Since DAM will be
used to respond to unusual and unexpected sightings of right whales, it
is difficult for NMFS to predict exactly where DAM zones may be
implemented in the future. It is difficult to quantify the economic
impacts of NMFS using its discretion in implementing 50 CFR
229.32(g)(2) as the restrictions that will be are unknown at this time
in addition to the unknowns of the particular event such as the time
and location of the restrictions and the level of fishing effort at
that time and location. Therefore, providing an accurate estimate of
the number of small entities that will be affected is problematic.
Based on the available data, a maximum of 7,539 state and federally
permitted lobster vessels and 310 gillnet vessels, which includes
federally permitted vessels and may include state permitted vessels,
could be affected by this action. However, NMFS does not expect that
number of vessels to be affected by any one DAM closure because of the
limited size of a DAM zone. For example, the retrospective analysis of
the April-May 2000 DAM Area 1 estimated that 210 lobster vessels and 42
gillnet vessels would have been affected by the hypothetical closure.
NMFS received two public comments relating to the economic impacts
of this final rule. These comments were considered by NMFS before it
approved this final rule and are characterized and responded to by NMFS
in the ``Comments and Responses'' section of the preamble to this final
rule, as comment/response numbers four and eight. No changes to the
rule were made as a result of these comments.
This action contains no new reporting or record keeping
requirements. There are no relevant Federal rule actions that
duplicate, overlap, or conflict with this action.
NMFS determined that this action is consistent to the maximum
extent practicable with 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. No state disagreed
[[Page 1141]]
with our conclusion that the rule is consistent with the enforceable
policies of the approved coastal management program for that state.
This final rule contains policies with federalism implications that
were sufficient to warrant preparation of a federalism assessment under
Executive Order 13132. Accordingly, the Assistant Secretary for
Legislative and Intergovernmental Affairs provided notice of the
proposed action to the appropriate official(s) of affected state, local
and/or tribal government in October 2001. No comments on the federalism
implications of the proposed action were received in response to this
notification. However, one affected state did respond on the federalism
implications during the comment period for the proposed rule. The
comment is characterized and responded to by NMFS in the ``Comments and
Responses'' section of the preamble to this final rule, as comment/
response number 10. No changes to the rule were made as a result of the
comment received.
This final rule implements a portion of the RPA, which resulted
from ESA section 7 consultations on three FMPs for the monkfish, spiny
dogfish, and Northeast multispecies fisheries, and the Federal
regulations for the American lobster fishery. This final rule
implements a component of the RPA contained in the BOs issued by NMFS
on June 14, 2001. Therefore, no further section 7 consultation is
required.
This rule has been determined to be not significant for the
purposes of Executive Order 12866.
References
ALWTRT. 2001. Draft Atlantic Large Whale Take Reduction Team
Meeting Summary. Summary prepared by RESOLVE, Inc. and submitted to the
National Marine Fisheries Service July 16, 2001.
Bisack, K. 2001. Economic analysis of Wilkinson Basin closure.
Northeast Fisheries Science Center, 166 Water Street, Woods Hole, MA.
02543.
Bisack, K. 2001. (Draft) Economic analysis of dynamic area
management (DAM). Northeast Fisheries Science Center, 166 Water Street,
Woods Hole, MA. 02543.
Clapham, P.J. and R.M. Pace, III. 2001. Defining Triggers for
Temporary Area Closures to Protect Right Whales from Entanglements:
Issues and Options. Northeast Fisheries Science Center Reference
Document 01-06. April 2001.
National Marine Fisheries Service. 2000. Environmental Assessment
of the Atlantic Large Whale Take Reduction Plan and Implementing
Regulations. NMFS. Northeast Region. December 2000.
National Marine Fisheries Service. 2001. Preliminary estimates of
the revenue losses to the gillnet and lobster fleet in 1999 due to
potential dynamic area closures to protect right whales. NMFS.
Northeast Region. March 2001.
National Marine Fisheries Service. 2001. Endangered Species Act
section 7 consultation. Biological opinion regarding Fishery Management
Plans for monkfish, spiny dogfish, and multispecies and Federal
regulations for American lobster. June 14, 2001.
Dated: December 31, 2001.
Rebecca Lent,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
List of Subjects in CFR Part 229
Administrative practice and procedure, Fisheries, Marine mammals,
Reporting and record keeping requiremnts.
For the reasons set out in the preamble, 50 CFR part 229 is
proposed to be amended as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. In Sec. 229.2, a definition of ``Qualified individual'' and
``Reliable report'' are added in alphabetical order to read as follows:
Sec. 229.2 Definitions.
* * * * *
Qualified individual means an individual ascertained by NMFS to be
reasonably able, though 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.
* * * * *
Reliable report means a credible right whale sighting report based
upon which a DAM zone would be triggered.
* * * * *
3. In Sec. 229.32, paragraph (g)(3) is added to read as follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
* * * * *
(g)***
(3) For the purpose of reducing the risk of fishery interactions
with right whales, NMFS may establish a temporary Dynamic Area
Management (DAM) zone in the following manner:
(i) Trigger. Upon receipt of a single reliable report from a
qualified individual of three or more right whales within an area NMFS
will plot each individual sighting (event) and draw a circle with a 2.8
nm (5.2 km) radius around it, which will be adjusted for the number of
right whales sighted such that a density of at least 0.04 right whales
per nm2 (1.85 km2) is maintained within the circle. If any circle or
group of contiguous circles includes 3 or more right whales, NMFS would
consider this core area and its surrounding waters a candidate DAM
zone.
(ii) DAM zone. Areas for consideration for DAM zones are limited to
areas north of 40o N latitude. Having identified any circle or group of
contiguous circles including 3 or more right whales as candidates for
protection, as identified in paragraph (g)(3)(i) of this section, NMFS
will determine the extent of the DAM zone as follows:
(A) A larger circular zone will be drawn to extend 15 nm (27.8 km)
from the perimeter of a circle around each core area.
(B) The DAM zone will then be defined by a polygon drawn outside
but tangential to the circular buffer zone(s). The latitudinal and
longitudinal coordinates of the corners of the polygon will then be
identified.
(iii) Requirements and prohibitions within DAM zones. Notice of
specific area restrictions will be published in the Federal Register
and will become effective 2 days after publication. Gear not in
compliance with the imposed restrictions may not be set in the DAM zone
after the effective date. NMFS may either:
(A) require owners of gillnet and lobster gear set within the DAM
zone to remove all such gear within 2 days after notice is published in
the Federal Register, or
(B) allow fishing within a DAM zone with gear modifications
determined by NMFS to sufficiently reduce the risk of entanglement to
right whales. Acceptable fishing practices and gear modifications would
be identified in the Federal Register notification implementing the DAM
zone.
(C) The determination of whether restrictions will be imposed
within a DAM zone would be based on NMFS' review of a variety of
factors, including but not limited to: the location of the
[[Page 1142]]
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.
(iv) Restricted period. Any DAM zone will remain in effect for a
minimum period of 15 days. At the conclusion of the 15-day period, the
DAM zone will expire automatically unless it is extended by subsequent
publication in the Federal Register.
(v) Extensions of the restricted period. Any 15-day period may be
extended if NMFS determines that the trigger established in paragraph
(g)(3)(i) of this section continues to be met.
(vi) Reopening of restricted zone. NMFS may remove any gear
restriction or prohibition and reopen the DAM zone prior to its
automatic expiration if there are no confirmed sightings of right
whales for at least 1 week, or other credible evidence indicates that
right whales have left the DAM zone. NMFS will notify the public of the
reopening of a DAM zone prior to the expiration of the 15-day period by
issuing a document in the Federal Register and through other
appropriate media.
[FR Doc. 02-272 Filed 1-8-02; 8:45 am]
BILLING CODE 3510-22-S