5180 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations 

E.O. 13132 - Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific consultation directives 

for situations where a regulation will 

preempt state law, or impose substantial 

direct compliance costs on state and 

local governments (unless required by 

statute). Neither of those circumstances 

is applicable to this final rule. In fact, 

this notice provides mechanisms by 

which NMFS, in the form of 4(d) limits 

to the statutory take prohibitions, may 

defer to state and local governments 

where they provide adequate 

protections for threatened salmonids, 

including Upper Columbia River 

steelhead. 

References 

A complete list of all references cited 

herein is available upon request (see 

ADDRESSES), or can be obtained from the 

Internet at: http://www.nwr.noaa.gov. 

List of Subjects in 50 CFR Part 223 

Endangered and threatened species, 

Exports, Imports. 

Dated: January 26, 2006. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 223 is amended 

as follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543; subpart B, 

§ 223.12 also issued under 16 U.S.C. 1361 et 

seq. 

■ 2. In § 223.203, paragraphs (a), (b)(1) 

through (b)(13), and (c), the references 

in the sections listed in the first column 

below are revised according to the 

directions in the second and third 

columns: 

Section Remove Add 

§ 223.203(a) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(1) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(2) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(3) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(4) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(5) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(6) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(7) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(8) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(9) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(10) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(11) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(12) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(13) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(c) § 223.102(a)(2) through (a)(21) § 223.102(a) 

■ 3. In § 223.203, paragraph (b)(2) is 

revised to read as follows: 

§ 223.203 Anadromous fish. 

* * * * * 

(b) * * * 

(2) The prohibitions of paragraph (a) 

of this section relating to threatened 

species of salmonids listed in 

§ 223.102(a) do not apply to activities 

specified in an application for ESA 4(d) 

authorization for scientific purposes or 

to enhance the conservation or survival 

of the species, provided that the 

application has been received by the 

Assistant Administrator for Fisheries, 

NOAA (AA), no later than April 3, 2006. 

The prohibitions of this section apply to 

these activities upon the AA’s rejection 

of the application as insufficient, upon 

issuance or denial of authorization, or 

March 1, 2007, whichever occurs 

earliest. 

* * * * * 

[FR Doc. 06–929 Filed 1–31–06; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 030221039-6017-25; I.D. 

012706A] 

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 ALWTRP’s 

implementing regulations. These 

regulations apply to lobster trap/pot and 

anchored gillnet fishermen in an area 

totaling approximately 2,404 nm2 (8,245 

km2), southeast of Portland, ME, for 15 

days. 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 3, 2006, through 2400 hours 

February 17, 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, 301–713–1401. 

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/. 


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Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations 5181 

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° 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 January 24, 2006, an aerial survey 

reported a sighting of twenty-seven right 

whales in the proximity 43° 14′ N. lat. 

and 68° 46′ 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 is bound by the 

following coordinates: 

43° 39′ N., 69° 15′ W. (NW Corner) 

43° 39′ N., 68° 09′ W. 

42° 49′ N., 68° 09′ W. 

42° 49′ N., 69° 15′ 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 


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5182 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations 

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 3, 

2006, through 2400 hours February 17, 

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 

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 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, 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: January 27, 2006. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

[FR Doc. 06–944 Filed 1–27–06; 3:59 pm] 

BILLING CODE 3510–22–S 


erjones on PROD1PC61 with RULES