E8-23880. 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:

Notice.

SUMMARY:

Pursuant to a preliminary injunction issued in the case, The Humane Society of the Unites States, et al. v. Gutierrez, et al., in U.S. District Court for the District of Columbia (Civil Action No. 08-cv-1593 (ESH)), NMFS is reinstating the Dynamic Area Management (DAM) program that was terminated by the October 5, 2007, final rule amending the Atlantic Large Whale Take Reduction Plan (ALWTRP). The DAM program will be implemented consistent with the previous regulations for this program, except that it will only be reinstated north of the pre-existing Seasonal Area Management boundaries (i.e., north of 42°30′ N. latitude). DAM zones will be established through future notice in the Federal Register. The restrictions 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 issuance of a rule by the AA.

DATES:

Effective beginning at 0001 hours October 5, 2008, until the broad-based sinking groundline requirements for trap/pot and lobster trap/pot fisheries established by the October 5, 2007, final rule go into effect.

ADDRESSES:

Copies of the previous rulemaking documents associated with the ALWTRP, 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/​. The complete text of the regulations implementing the ALWTRP can be found either in the Code of Federal Regulations (CFR) at 50 CFR 229.32 or downloaded from the website, along with a guide to the regulations.

Background

In response to the continued serious injury and mortality of large whales (e.g., right, humpback, and fin whales) from entanglement in commercial fishing gear, NMFS determined that additional modifications to the ALWTRP were warranted. Subsequently, in October 2007, NMFS finalized an amendment to the ALWTRP, which implemented a broad-based gear modification strategy that included additional regulated fisheries; expanded weak link and sinking groundline requirements; additional gear marking requirements; changes in boundaries; seasonal restrictions for gear modifications; expanded exempted areas; and regulatory language changes for the purposes of clarification and consistency (72 FR 57104, October 5, 2007; 73 FR 19171, April 9, 2008). The October 2007 rule eliminated the Dynamic Area Management (DAM) Program on April 5, 2008, when most of the broad-based gear modifications became effective. Additionally, gillnet and trap/pot fishermen were given one year (through October 5, 2008) to convert floating groundline to sinking groundline as part of the broad-based gear modification requirements.

On September 2, 2008, NMFS published a final rule that provided an additional six months (through April 5, 2009) for trap/pot fishermen along the Atlantic coast to comply with the AWLTRP's broad-based sinking groundline requirement (73 FR 51228, September 2, 2008). Pursuant to a preliminary injunction issued in the case, The Humane Society of the United States, et al. v. Gutierrez, et al., in U.S. District Court for the District of Columbia (Civil Action No. 08-cv-1593 (ESH)), NMFS is reinstating the DAM program, which was terminated by the October 5, 2007, final rule (72 FR 57104). The DAM program will be implemented consistent with the previous regulations for this program (67 FR 1133, January 9, 2002; 67 FR 65722, October 28, 2002; 68 FR 51195, August 26, 2003; 72 FR 57104, October 5, 2007), except that it will only be reinstated north of the pre-existing Seasonal Area Management boundaries (i.e., north of 42°30′ N. latitude). DAM zones will be established through future notice in the Federal Register. Future DAM zone restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of a temporary rule by the Assistant Administrator for Fisheries (AA). The DAM program will be reinstated until the Court's resolution on the merits of the case or the broad-based sinking groundline requirements for trap/pot and lobster trap/pot fisheries established by the October 5, 2007, final rule go into effect, whichever occurs earlier.

In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications may be required in a DAM zone. In such a case, the ALWTRP management areas impacted would be dependent on the area of overlap with the DAM zone. If the requirements and exceptions for gear modification in a DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements would apply in the DAM zone.

Lobster Trap/Pot Gear

Fishermen utilizing lobster trap/pot gear within portions of Northern Inshore Lobster Waters, Northern Nearshore Lobster Waters, and Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap with a DAM zone may be required to utilize all of the following gear modifications when a 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 may be required to utilize all of the following gear modifications when a 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 and Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap with the DAM zone may be required to utilize all the following gear modifications when a 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.

Dated: October 2, 2008.

John Oliver

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.