[Federal Register: December 10, 2002 (Volume 67, Number 237)]
[Rules and Regulations]
[Page 75817-75818]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de02-5]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 001128334-2292-10; I.D. 112702B]
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: Rule.
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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, is
withdrawing the temporary restrictions announced in a temporary rule
published on December 3, 2002 (67 FR 71900). The purpose of this rule
is to withdraw the restrictions and request fishermen to voluntarily
remove lobster trap/pot and anchored gillnet gear in an area totaling
approximately 1,600 square nautical miles (nm\2\) (2,965 km\2\), east
of Portsmouth, NH, called Jeffreys Ledge, from December 5 through
December 20, 2002.
DATES: Effective December 5, 2002.
ADDRESSES: Copies of the proposed and final Dynamic Area Management
rules, Environmental Assessment (EA), 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.
Several of the background documents for the ALWTRP and the take
reduction planning process can be downloaded from the ALWTRP web site
at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nero.nmfs.gov/whaletrp/.
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast
Region, 978-281-9145; or Patricia Lawson, NMFS, Office of Protected
Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION: The ALWTRP was developed pursuant to section
118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental
mortality and serious injury of four species of whales (right whales,
fin, humpback, and minke) due to incidental interaction with commercial
fishing activities. 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 Dynamic Area Management (DAM) program (67 FR 1133). The DAM
program provides specific authority for NMFS to temporarily restrict
the use of lobster trap and anchored gillnet fishing gear in areas
north of 40[deg] N. lat. on an expedited basis 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 and anchored gillnet fishing within a DAM zone with
gear modifications determined by NMFS to
[[Page 75818]]
sufficiently reduce the risk of entanglement; 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 (75nm\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 November 20, 2002, NMFS Aerial Survey Team reported a sighting
of 8 right whales in the proximity of 43[deg] 00' N lat. and 70[deg]08'
W long. This position lies east of Portsmouth, NH, in an area called
Jeffreys Ledge.
In a temporary rule published on December 3, 2002 (67 FR 71900),
NMFS restricted lobster trap/pot and gillnet gear set in the waters
bounded by:
43[deg]19'N, 70[deg]35'W (NW Corner)
43[deg]19'N, 69[deg]40'W
42[deg]39'N, 69[deg]40'W
42[deg]39'N, 70[deg]35'W (SW Corner)
Please note that the western DAM boundary (70[deg]35'W) from
43[deg]11'N due north to 43[deg]19'N will follow the coastline.
Due to rough weather conditions in the Gulf of Maine, effected
fishers are unable to remove active gear as required by the temporary
rule. Therefore, the AA has determined that the temporary restrictions
should be withdrawn. However, the AA requests that fishermen
voluntarily remove their lobster trap/pot and anchored gillnet gear in
the area described above if weather conditions allow removal of the
gear through December 20, 2002. Additionally, fishermen are encouraged
not to set gear in the DAM area during this time period.
This rule will be announced to state officials, fishermen, Atlantic
Large Whale Take Reduction Team (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
This action falls within the scope of alternatives and impacts
analyzed in the Final EA prepared for the ALWTRP's DAM program. Further
analysis under the National Environmental Policy Act (NEPA) is not
required.
Pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists
to waive notice and an opportunity to comment on this action to
withdraw the temporary restrictions, because providing notice and an
opportunity to comment on this action would be contrary to the public
interest. If NMFS were to provide notice and an opportunity to comment
on this action, the temporary gear restrictions would remain effective,
and fishermen would risk bodily harm in trying to remove their gear due
to the severe weather conditions in the Northeast region. In addition,
it would be unfair to subject fishermen to changes in gear requirements
when, due to weather, the affected fishermen have been unable to
implement these changes.
The AA is also waiving the 30-day delay in effective date under 5
U.S.C. 553(d)(1), because this action relieves a restriction. Thus,
NMFS makes this action effective beginning December 5, 2002. NMFS will
also endeavor to provide notice of this action to fishermen through
other means as soon as possible. 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, the Assistant Secretary for Intergovernmental and
Legislative Affairs, DOC, provided notice of the DAM program 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 rule implementing the DAM
program. A copy of the federalism Summary Impact Statement for that
final rule is available upon request (see ADDRESSES).
This rule has been determined to be not significant under Executive
Order 12866.
Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3)
Dated: December 5, 2002.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 02-31160 Filed 12-5-02; 3:09 pm]
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