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Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP)
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 13, 2006 (Volume 71, Number 29)]
[Rules and Regulations]
[Page 7441-7443]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe06-10]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 030221039-6029-27; I.D. 020606D]
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule.
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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA,
announces temporary restrictions consistent with the requirements of
the ALWTRP's implementing regulations. These regulations apply to
lobster trap/pot and anchored gillnet fishermen for 15 days in an area
southeast of Portland, ME, totaling approximately 886 nm\2\ to 1,569
nm\2\ (3,039 km\2\ to 5,382 km\2\), depending on the temporal and
spatial overlap with two other DAM zones currently in effect. The two
other overlapping DAM zones are in effect from 0001 hours February 3,
2006 through 2400 hours February 17, 2006,and from 0001 hours February
10, 2006, through 2400 hours February 24, 2006. The purpose of this
action is to provide protection to an aggregation of northern right
whales (right whales).
DATES: Effective beginning at 0001 hours February 15, 2006, through
2400 hours March 1, 2006.
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, One Blackburn Drive, Gloucester, MA
01930.
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast
Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected
Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several of the background documents for the ALWTRP and the take
reduction planning process can be downloaded from the ALWTRP web site
at http://www.nero.noaa.gov/whaletrp/. 
Background
The ALWTRP was developed pursuant to section 118 of the Marine
Mammal Protection Act (MMPA) to reduce the incidental mortality and
serious injury of three endangered species of whales (right, fin, and
humpback) due to incidental interaction with commercial fishing
activities. In addition, the measures identified in the ALWTRP would
provide conservation benefits to a fourth species (minke), which are
neither listed as endangered nor threatened under the Endangered
Species Act (ESA). The ALWTRP, implemented through regulations codified
at 50 CFR 229.32, relies on a combination of fishing gear modifications
and time/area closures to reduce the risk of whales becoming entangled
in commercial fishing gear (and potentially suffering serious injury or
mortality as a result).
On January 9, 2002, NMFS published the final rule to implement the
ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the
regulations by publishing a final rule, which specifically identified
gear modifications that may be allowed in a DAM zone (68 FR 51195). The
DAM program provides specific authority for NMFS to restrict
temporarily on an expedited basis the use of lobster trap/pot and
anchored gillnet fishing gear in areas north of 40[deg] N. lat. to
protect right whales. Under the DAM program, NMFS may: (1) require the
removal of all lobster trap/pot and anchored gillnet fishing gear for a
15-day period; (2) allow lobster trap/pot and anchored gillnet fishing
within a DAM zone with gear modifications determined by NMFS to
sufficiently reduce the risk of entanglement; and/or (3) issue an alert
to fishermen requesting the voluntary removal of all lobster trap/pot
and anchored gillnet gear for a 15-day period and asking fishermen not
to set any additional gear in the DAM zone during the 15-day period.
A DAM zone is triggered when NMFS receives a reliable report from a
qualified individual of three or more right whales sighted within an
area (75 nm\2\ (139 km\2\)) such that right whale density is equal to
or greater than 0.04 right whales per nm\2\ (1.85 km\2\). A qualified
individual is an individual ascertained by NMFS to be reasonably able,
through training or experience, to identify a right whale. Such
individuals include, but are not limited to, NMFS staff, U.S. Coast
Guard and Navy personnel trained in whale identification, scientific
research survey personnel, whale watch operators and naturalists, and
mariners trained in whale species identification through
disentanglement training or some other training program deemed adequate
by NMFS. A reliable report would be a credible right whale sighting.
On February 2, 2006, an aerial survey reported a sighting of seven
right whales in the proximity 42[deg] 59' N. lat. and 69[deg] 26' W.
long. This position lies southeast of Portland, ME. 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 overlaps with two other DAM zones: one in effect from
0001 hours February 3, 2006, through 2400 hours February 17, 2006 (71
FR 5180, February 1, 2006), and the other in effect from 0001 hours
February 10, 2006, through 2400 hours February 24, 2006 (70 FR 6396,
February 8, 2006). Effective from 0001 hours February 15, 2006 through
2400 hours February 17, 2006, the DAM zone is bounded by the following
coordinates when it overlaps these previously established DAM zones:
43[deg] 18' N., 69[deg] 53' W. (NW Corner)
43[deg] 18' N., 69[deg] 15' W.
42[deg] 49' N., 69[deg] 15' W.
42[deg] 49' N., 68[deg] 58' W.
42[deg] 39' N., 68[deg] 58' W.
42[deg] 39' N., 69[deg] 32' W.
43[deg] 00' N., 69[deg] 32' W.
43[deg] 00' N., 69[deg] 53' W.
[[Page 7442]]
Effective from 0001 hours February 18, 2006, through 2400 hours
February 24, 2006, after the February 1, 2006, DAM zone (71 FR 5180)
expires, the DAM zone is bounded by the following coordinates:
43[deg] 18' N., 69[deg] 53' W. (NW Corner)
43[deg] 18' N., 68[deg] 58' W.
42[deg] 39' N., 68[deg] 58' W.
42[deg] 39' N., 69[deg] 32' W.
43[deg] 00' N., 69[deg] 32' W.
43[deg] 00' N., 69[deg] 53' W.
Effective from 0001 hours February 25, 2006, through 2400 hours
March 1, 2006, after the February 8, 2006, DAM zone (70 FR 6396)
expires, the DAM zone is bounded by the following coordinates:
43[deg] 18' N., 69[deg] 53' W. (NW Corner)
43[deg] 18' N., 68[deg] 58' W.
42[deg] 39' N., 68[deg] 58' W.
42[deg] 39' N., 69[deg] 53' W.
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 fisherman: a portion of this DAM zone overlaps the year-round
Cashes Ledge Closure Area found at 50 CFR 648.81(d) and the February
Cashes Ledge Closure Area for harbor porpoise found at 50 CFR
229.33(a)(6). Due to these closures, sink gillnet gear is prohibited
from these portions of the DAM zone.
Lobster Trap/Pot Gear
Fishermen utilizing lobster trap/pot gear within the portion of the
Northern Nearshore Lobster Waters Area that overlap with the DAM zone
are required to utilize all of the following gear modifications while
the DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 600 lb (272.4
kg) must be placed at all buoys.
Fishermen utilizing lobster trap/pot gear within the portion of the
Offshore Lobster Waters Area that overlap with the DAM zone are
required to utilize all of the following gear modifications while the
DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 1,500 lb (680.4
kg) must be placed at all buoys.
Anchored Gillnet Gear
Fishermen utilizing anchored gillnet gear within the portion of the
Other Northeast Gillnet Waters Area that overlap with the DAM zone are
required to utilize all the following gear modifications while the DAM
zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant
line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally
buoyant line, except the bottom portion of the line, which may be a
section of floating line not to exceed one-third the overall length of
the buoy line;
3. Fishermen are allowed to use two buoy lines per string;
4. Each net panel must have a total of five weak links with a
maximum breaking strength of 1,100 lb (498.8 kg). Net panels are
typically 50 fathoms (91.4 m) in length, but the weak link requirements
would apply to all variations in panel size. These weak links must
include three floatline weak links. The placement of the weak links on
the floatline must be: one at the center of the net panel and one each
as close as possible to each of the bridle ends of the net panel. The
remaining two weak links must be placed in the center of each of the up
and down lines at the panel ends;
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
15, 2006, through 2400 hours March 1, 2006, unless terminated sooner or
extended by NMFS through another notification in the Federal Register.
The restrictions will be announced to state officials, fishermen,
ALWTRT members, and other interested parties through e-mail, phone
contact, NOAA website, and other appropriate media immediately upon
filing with the Federal Register.
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
[[Page 7443]]
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 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 8, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
[FR Doc. 06-1306 Filed 2-8-06; 2:02 pm]
BILLING CODE 3510-22-S