43186 Federal Register / Vol. 72, No. 149 / Friday, August 3, 2007 / Rules and Regulations 

not constitute a conclusion by NMFS 

that those participating in the fishery 

are illegally taking sea turtles. 

§ 222.403 Duration of selection; effective 

date. 

(a) Fisheries included in the final 

annual determination in a given year 

will remain eligible for observer 

coverage under this rule for five years, 

without need for NMFS to include the 

fishery in the intervening proposed 

annual determinations, to enable the 

design of an appropriate sampling 

program and to ensure collection of 

scientific data. If NMFS wishes to 

continue observations beyond the fifth 

year, NMFS must include the fishery in 

the proposed annual determination and 

seek comment, prior to the expiration of 

the fifth year. 

(b) A 30–day delay in effective date 

for implementing observer coverage will 

follow the annual notification, except 

for those fisheries that were included in 

a previous determination within the 

preceding five years or where the AA 

has determined that there is good cause 

pursuant to the Administrative 

Procedure Act to make the rule effective 

without a 30–day delay. 

§ 222.404 Observer program sampling. 

(a) During the program design, NMFS 

would be guided by the following 

standards in the distribution and 

placement of observers among fisheries 

and vessels in a particular fishery: 

(1) The requirements to obtain the 

best available scientific information; 

(2) The requirement that assignment 

of observers is fair and equitable among 

fisheries and among vessels in a fishery; 

(3) The requirement that no 

individual person or vessel, or group of 

persons or vessels, be subject to 

inappropriate, excessive observer 

coverage; and 

(4) The need to minimize costs and 

avoid duplication, where practicable. 

(b) Consistent with 16 U.S.C. 1881(b), 

vessels where the facilities for 

accommodating an observer or carrying 

out observer functions are so inadequate 

or unsafe (due to size or quality of 

equipment, for example) that the health 

or safety of the observer or the safe 

operation of the vessel would be 

jeopardized, would not be required to 

take observers under this rule. 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 3. The authority citation for part 223 

continues to read as follows: 

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

§ 223.201–202 also issued under 16 U.S.C. 

1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

■ 4. In § 223.206, the second sentence of 

paragraph (d)(4)(iv) is revised to read as 

follows: 

§ 223.206 Exceptions to prohibitions 

relating to sea turtles. 

* * * * * 

(d) * * * 

(4) * * * 

(iv) Procedures. * * * An emergency 

notification will be effective for a period 

of up to 30 days and may be renewed 

for additional periods of up to 30 days 

each, except that emergency placement 

of observers will be effective for a 

period of up to 180 days and may be 

renewed for an additional period of 60 

days. * * * 

* * * * * 

[FR Doc. E7–15145 Filed 8–2–07; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 070726420–7421–01] 

RIN 0648–XB74 

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: 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) implementing regulations. 

These regulations apply to lobster trap/ 

pot and anchored gillnet fishermen in 

an area totaling approximately 3,530 

nm2 (12,108 km2), southeast of 

Chatham, Massachusetts, 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 

August 5, 2007, through 2400 hours 

August 19, 2007. 

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° 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. 


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Federal Register / Vol. 72, No. 149 / Friday, August 3, 2007 / Rules and Regulations 43187 

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 July 24, 2007, an aerial survey 

reported three aggregations of right 

whales, totaling thirty individuals in the 

proximity of 41° 23′ N latitude and 68° 

50′ W longitude. The positions lie 

approximately 54nm southeast of 

Chatham, MA. 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: 

42° 00′ N., 69° 24′ W (NW Corner) 

42° 00′ N., 68° 08′ W 

40° 58′ N., 68° 08′ W 

40° 58′ N., 69° 24′ W 

42° 00′ N., 69° 24′ W (NW Corner) 

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 

Closure Area I for Northeast 

Multispecies found at 50 CFR 648.81(a). 

Due to this closure, sink gillnet gear is 

prohibited from this portion of the DAM 

zone. 

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 and Great South 

Channel Restricted Lobster 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 portions of the Other 

Northeast Gillnet Waters Area, Great 

South Channel Restricted Gillnet Area, 

and Great South Channel Sliver 

Restricted 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 August 5, 2007, 

through 2400 hours August 19, 2007, 

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 issuance of the rule 

by the AA. 

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 


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43188 Federal Register / Vol. 72, No. 149 / Friday, August 3, 2007 / Rules and Regulations 

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 upon 

issuance of the rule by the AA, 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: July 30, 2007. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

[FR Doc. 07–3810 Filed 7–31–07; 3:13 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 0612243158–7219–02 ; I.D. 

031307C] 

RIN 0648–AU51 

Magnuson-Stevens Act Provisions; 

Fisheries of the Northeastern United 

States; Northeast Fisheries; 

Regulatory Amendment to Reconcile 

State and Federal Commercial Fishing 

Vessel Permit Programs 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is implementing 

regulations to modify the permitting and 

vessel replacement provisions for 

Federal limited access permit programs 

of the Northeastern United States, 

excluding American lobster. This action 

is intended to prevent fishing effort 

beyond what is accounted for in the 

fishery management plans (FMPs) for 

each fishery and to reinforce efforts 

undertaken by state fishery management 

agencies at targeting regulations 

specifically for vessels that participate 

wholly in state water fisheries. These 

measures are necessary to meet the 

conservation and management 

requirements of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). 

DATES: Effective September 4, 2007, 

except for 648.4(a)(1)(i)(E) and 

648.14(a)(179), which will be effective 

January 1, 2008. 

ADDRESSES: Copies of this regulatory 

amendment, its Regulatory Impact 

Review (RIR), the Final Regulatory 

Flexibility Analysis (FRFA), and the 

Environmental Assessment (EA) are 

available from Patricia A. Kurkul, 

Regional Administrator, National 

Marine Fisheries Service, 1 Blackburn 

Drive, Gloucester, MA 01930. A copy of 

the RIR/FRFA and the small entity 

compliance guide is also accessible via 

the Internet at 

http://www.nero.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: 

Brian Hooker, Fishery Policy Analyst, 

phone: (978) 281–9220, fax: (978) 281–

9135. 

SUPPLEMENTARY INFORMATION: 

Background 

State and Federal FMPs governing 

fisheries for the same species may differ 


rmajette on PROD1PC64 with RULES