75862 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

December 3, 2004. The full text of this 

Commission decision is available for 

inspection and copying during regular 

business hours at the FCC’s Reference 

Information Center, Portals II, 445 

Twelfth Street, SW., Room CY–A257, 

Washington, DC 20554. The complete 

text of this decision may also be 

purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc., 445 12th Street, SW., 

Room CY–B402, Washington, DC 20054, 

telephone 1–800–378–3160 or http://

www.BCPIWEB.com. The Commission 

will send a copy of this Report and 

Order in a report to be sent to Congress 

and the General Accounting Office 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting.

PART 73—RADIO BROADCAST 

SERVICES

■ 1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended]

■ 2. Section 73.202(b), the Table of FM 

Allotments under New Mexico, is 

amended by adding Channel 248C1 at 

Clayton and by removing Channel 248C1 

at Raton.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–27798 Filed 12–17–04; 8:45 am] 

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 229

[Docket No. 030221039–4351–16; I.D. 

121304B]

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.

SUMMARY: The Assistant Administrator 

for Fisheries (AA), NOAA, announces 

temporary restrictions consistent with 

the requirements of the Atlantic Large 

Whale Take Reduction Plan’s 

(ALWTRP’s) implementing regulations. 

These regulations apply to lobster trap/

pot and anchored gillnet fishermen in 

an area totaling approximately 1,889 

square nautical miles (nm2) (6,479.1 

km2), east of Portland, ME for 15 days. 

The purpose of this action is to provide 

protection to an aggregation of North 

Atlantic right whales (right whales).

DATES: Effective beginning at 0001 hours 

December 22, 2004, through 2400 hours 

January 5, 2005.

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, 978–281–9328 x6503; or Kristy 

Long, NMFS, Office of Protected 

Resources, 301–713–1401.

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) as well as to provide 

conservation benefits to a fourth nonendangered species (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 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° 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 

nm2 (139 km2)) such that right whale 

density is equal to or greater than 0.04 

right whales per nm2 (1.85 km2). A 

qualified individual is an individual 

ascertained by NMFS to be reasonably 

able, through training or experience, to 

identify a right whale. Such individuals 

include, but are not limited to, NMFS 

staff, U.S. Coast Guard and Navy 

personnel trained in whale 

identification, scientific research survey 

personnel, whale watch operators and 

naturalists, and mariners trained in 

whale species identification through 

disentanglement training or some other 

training program deemed adequate by 

NMFS. A reliable report would be a 

credible right whale sighting.

On December 6, 2004, an aerial survey 

reported a sighting of 7 right whales in 

the proximity 43°22.3′ N lat. and 

68°01.1′ W long. This position lies east 

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

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 75863

consideration. As a result of this review, 

NMFS prohibits lobster trap/pot and 

anchored gillnet gear in this area during 

the 15–day restricted period unless it is 

modified in the manner described in 

this temporary rule. The DAM zone is 

bounded by the following coordinates:

43°45′N, 68°32′W (NW Corner)

43°45′N, 67°30′W

43°33′N, 67°30′W following the Hague 

line south to

43°00′N, 67°42′W

43°00′N, 68°32′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 with the Harbor 

Porpoise Take Reduction Plan’s 

Offshore Closure Area. This DAM action 

does not supersede the Harbor Porpoise 

Take Reduction Plan regulations found 

at 50 CFR 229.33.

Lobster Trap/Pot Gear

Fishermen utilizing lobster trap/pot 

gear within the portion of the Northern 

Nearshore Lobster Waters 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 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; and

5. 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 December 22, 

2004, through 2400 hours January 5, 

2005, 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 

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 

75864 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

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 notice in 

the Federal Register. NMFS will also 

endeavor to provide notice of this action 

to fishermen through other means as 

soon as the AA approves it, thereby 

providing approximately 3 additional 

days of notice while the Office of the 

Federal Register processes the document 

for publication.

NMFS determined that the regulations 

establishing the DAM program and 

actions such as this one taken pursuant 

to those regulations are consistent to the 

maximum extent practicable with the 

enforceable policies of the approved 

coastal management program of the U.S. 

Atlantic coastal states. This 

determination was submitted for review 

by the responsible state agencies under 

section 307 of the Coastal Zone 

Management Act. Following state 

review of the regulations creating the 

DAM program, no state disagreed with 

NMFS’ conclusion that the DAM 

program is consistent to the maximum 

extent practicable with the enforceable 

policies of the approved coastal 

management program for that state.

The DAM program under which 

NMFS is taking this action contains 

policies with federalism implications 

warranting preparation of a federalism 

assessment under Executive Order 

13132. Accordingly, in October 2001 

and March 2003, the Assistant Secretary 

for Intergovernmental and Legislative 

Affairs, DOC, 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: December 14, 2004.

Rebecca Lent,

Deputy Assistant Administrator for 

Regulatory programs, National Marine 

Fisheries Service.

[FR Doc. 04–27695 Filed 12–14–04; 4:47 pm]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 648

[Docket No. 031119283–4001–02; I.D. 

121404B]

Fisheries of the Northeastern United 

States; Summer Flounder Fishery; 

Commercial Quota Harvested for New 

York

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Closure of commercial fishery.

SUMMARY: NMFS announces that the 

summer flounder commercial quota 

available to New York has been 

harvested. Vessels issued a commercial 

Federal fisheries permit for the summer 

flounder fishery may not land summer 

flounder in New York for the remainder 

of calendar year 2004, unless additional 

quota becomes available through a 

transfer. Regulations governing the 

summer flounder fishery require 

publication of this notification to advise 

New York that the quota has been 

harvested and to advise vessel permit 

holders and dealer permit holders that 

no commercial quota is available for 

landing summer flounder in New York.

DATES: Effective 0001 hours, December 

19, 2004, through 2400 hours, December 

31, 2004.

FOR FURTHER INFORMATION CONTACT:

Jason Blackburn, Fishery Management 

Specialist, (978) 281–9326.

SUPPLEMENTARY INFORMATION:

Regulations governing the summer 

flounder fishery are found at 50 CFR 

part 648. The regulations require annual 

specification of a commercial quota that 

is apportioned on a percentage basis 

among the coastal states from North 

Carolina through Maine. The process to 

set the annual commercial quota and the 

percent allocated to each state is 

described in § 648.100.

The initial total commercial quota for 

summer flounder for the 2004 calendar 

year was set equal to 16,920,000 lb 

(7,674,862 kg)(69 FR 2074, January 14, 

2004). The percent allocated to vessels 

landing summer flounder in New York 

is 7.64699 percent, resulting in a 

commercial quota of 1,293,871 lb 

(586,896 kg). The 2004 allocation was 

reduced to 1,285,853 lb (583,259 kg) due 

to research set-aside.

Section 648.101(b) requires the 

Administrator, Northeast Region, NMFS 

(Regional Administrator) to monitor 

state commercial quotas and to 

determine when a state’s commercial 

quota has been harvested. NMFS then 

publishes a notification in the Federal 

Register to advise the state and to notify 

Federal vessel and dealer permit holders 

that, effective upon a specific date, the 

state’s commercial quota has been 

harvested and no commercial quota is 

available for landing summer flounder 

in that state. The Regional 

Administrator has determined, based 

upon dealer reports and other available 

information, that New York has 

harvested its quota for 2004.

The regulations at § 648.4(b) provide 

that Federal permit holders agree, as a 

condition of the permit, not to land 

summer flounder in any state that the 

Regional Administrator has determined 

no longer has commercial quota 

available. Therefore, effective 0001 

hours, December 19, 2004, further 

landings of summer flounder in New 

York by vessels holding summer 

flounder commercial Federal fisheries 

permits are prohibited for the remainder 

of the 2004 calendar year, unless 

additional quota becomes available 

through a transfer and is announced in 

the Federal Register. Effective 0001 

hours, December 19, 2004, federally 

permitted dealers are also notified that 

they may not purchase summer flounder 

from federally permitted vessels that 

land in New York for the remainder of 

the calendar year, or until additional 

quota becomes available through a 

transfer.

Classification

This action is required by 50 CFR part 

648 and is exempt from review under 

E.O. 12866.

Authority: 16 U.S.C. 1801 et seq.

Dated: December 14, 2004.

Alan D. Risenhoover,

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service.

[FR Doc. 04–27734 Filed 12–15–04; 1:46 pm]

BILLING CODE 3510–22–S