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66690 Federal Register / Vol. 71, No.

221 / Thursday, November 16, 2006 / Rules and Regulations

and the time it went into effect, thereby Dated: November 9, 2006. from the ALWTRP web site at http://
rendering the action obsolete and Samuel D. Rauch III, www.nero.noaa.gov/whaletrp/.
ineffective. Nevertheless, NMFS Deputy Assistant Administrator for Background
recognizes the need for fishermen to Regulatory Programs, National Marine
have time to either modify or remove (if Fisheries Service. The ALWTRP was developed
not in compliance with the required [FR Doc. 06–9227 Filed 11–13–06; 2:42 pm] pursuant to section 118 of the Marine
Mammal Protection Act (MMPA) to
restrictions) their gear from a DAM zone BILLING CODE 3510–22–S
reduce the incidental mortality and
once one is approved. Thus, NMFS
serious injury of three endangered
makes this action effective 2 days after species of whales (right, fin, and
the date of publication of this document DEPARTMENT OF COMMERCE
humpback) due to incidental interaction
in the Federal Register. NMFS will also National Oceanic and Atmospheric with commercial fishing activities. In
endeavor to provide notice of this action Administration addition, the measures identified in the
to fishermen through other means upon ALWTRP would provide conservation
issuance of the rule by the AA, thereby 50 CFR Part 229 benefits to a fourth species (minke),
providing approximately 3 additional which are neither listed as endangered
[Docket No. 030221039–6294–33; I.D.
days of notice while the Office of the nor threatened under the Endangered
110806C]
Federal Register processes the Species Act (ESA). The ALWTRP,
document for publication. Taking of Marine Mammals Incidental implemented through regulations
NMFS determined that the regulations to Commercial Fishing Operations; codified at 50 CFR 229.32, relies on a
establishing the DAM program and Atlantic Large Whale Take Reduction combination of fishing gear
Plan modifications and time/area closures to
actions such as this one taken pursuant
reduce the risk of whales becoming
to those regulations are consistent to the AGENCY: National Marine Fisheries entangled in commercial fishing gear
maximum extent practicable with the Service (NMFS), National Oceanic and (and potentially suffering serious injury
enforceable policies of the approved Atmospheric Administration (NOAA), or mortality as a result).
coastal management program of the U.S. Commerce. On January 9, 2002, NMFS published
Atlantic coastal states. This ACTION: Temporary rule. the final rule to implement the
determination was submitted for review ALWTRP’s DAM program (67 FR 1133).
by the responsible state agencies under SUMMARY: The Assistant Administrator On August 26, 2003, NMFS amended
section 307 of the Coastal Zone for Fisheries (AA), NOAA, announces the regulations by publishing a final
Management Act. Following state temporary restrictions consistent with rule, which specifically identified gear
review of the regulations creating the the requirements of the Atlantic large modifications that may be allowed in a
DAM program, no state disagreed with Whale Take Reduction Plan’s DAM zone (68 FR 51195). The DAM
NMFS’ conclusion that the DAM (ALWTRP) implementing regulations. program provides specific authority for
program is consistent to the maximum These regulations apply to lobster trap/ NMFS to restrict temporarily on an
extent practicable with the enforceable pot and anchored gillnet fishermen in expedited basis the use of lobster trap/
policies of the approved coastal an area totaling approximately 1,549 pot and anchored gillnet fishing gear in
management program for that state. nm2 (5,312 km2), south of Portland, areas north of 40° N. lat. to protect right
Maine, for 15 days. The purpose of this whales. Under the DAM program,
The DAM program under which action is to provide protection to an NMFS may: (1) require the removal of
NMFS is taking this action contains aggregation of northern right whales all lobster trap/pot and anchored gillnet
policies with federalism implications (right whales). fishing gear for a 15–day period; (2)
warranting preparation of a federalism DATES: Effective beginning at 0001 hours allow lobster trap/pot and anchored
assessment under Executive Order November 18, 2006, through 2400 hours gillnet fishing within a DAM zone with
13132. Accordingly, in October 2001 December 2, 2006. gear modifications determined by NMFS
and March 2003, the Assistant Secretary ADDRESSES: Copies of the proposed and
to sufficiently reduce the risk of
for Intergovernmental and Legislative final Dynamic Area Management (DAM) entanglement; and/or (3) issue an alert
Affairs, Department of Commerce, rules, Environmental Assessments to fishermen requesting the voluntary
provided notice of the DAM program (EAs), Atlantic Large Whale Take removal of all lobster trap/pot and
and its amendments to the appropriate Reduction Team (ALWTRT) meeting anchored gillnet gear for a 15–day
elected officials in states to be affected summaries, and progress reports on period and asking fishermen not to set
by actions taken pursuant to the DAM implementation of the ALWTRP may any additional gear in the DAM zone
program. Federalism issues raised by also be obtained by writing Diane during the 15–day period.
state officials were addressed in the A DAM zone is triggered when NMFS
Borggaard, NMFS/Northeast Region,
final rules implementing the DAM receives a reliable report from a
One Blackburn Drive, Gloucester, MA
qualified individual of three or more
program. A copy of the federalism 01930.
right whales sighted within an area (75
Summary Impact Statement for the final FOR FURTHER INFORMATION CONTACT: nm2 (139 km2)) such that right whale
rules is available upon request Diane Borggaard, NMFS/Northeast density is equal to or greater than 0.04
(ADDRESSES). Region, 978–281–9300 x6503; or Kristy right whales per nm2 (1.85 km2). A
The rule implementing the DAM Long, NMFS, Office of Protected qualified individual is an individual
program has been determined to be not Resources, 301–713–2322. ascertained by NMFS to be reasonably
significant under Executive Order SUPPLEMENTARY INFORMATION: able, through training or experience, to
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12866. identify a right whale. Such individuals


Electronic Access include, but are not limited to, NMFS
Authority: 16 U.S.C. 1361 et seq. and 50
CFR 229.32(g)(3)
Several of the background documents staff, U.S. Coast Guard and Navy
for the ALWTRP and the take reduction personnel trained in whale
planning process can be downloaded identification, scientific research survey

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Federal Register / Vol. 71, No. 221 / Thursday, November 16, 2006 / Rules and Regulations 66691

personnel, whale watch operators and gillnet gear is prohibited from this breaking strength of 1,100 lb (498.8 kg).
naturalists, and mariners trained in portion of the DAM zone. Net panels are typically 50 fathoms
whale species identification through (91.4 m) in length, but the weak link
Lobster Trap/Pot Gear
disentanglement training or some other requirements would apply to all
training program deemed adequate by Fishermen utilizing lobster trap/pot variations in panel size. These weak
NMFS. A reliable report would be a gear within the portion of the Northern links must include three floatline weak
credible right whale sighting. Inshore State Lobster Waters, Northern links. The placement of the weak links
On November 5, 2006, an aerial Nearshore Lobster Waters and on the floatline must be: one at the
survey reported a sighting of four right Stellwagen Bank/Jeffreys Ledge that center of the net panel and one each as
whales in the proximity 43° 07 N. lat. overlap with the DAM zone are required close as possible to each of the bridle
and 70° 10′ W. long. This position lies to utilize all of the following gear ends of the net panel. The remaining
south of the Portland, Maine. After modifications while the DAM zone is in two weak links must be placed in the
conducting an investigation, NMFS effect: center of each of the up and down lines
ascertained that the report came from a 1. Groundlines must be made of either at the panel ends;
qualified individual and determined sinking or neutrally buoyant line. 5. A weak link with a maximum
that the report was reliable. Thus, Floating groundlines are prohibited; breaking strength of 1,100 lb (498.8 kg)
2. All buoy lines must be made of must be placed at all buoys; and
NMFS has received a reliable report
either sinking or neutrally buoyant line, 6. All anchored gillnets, regardless of
from a qualified individual of the
except the bottom portion of the line, the number of net panels, must be
requisite right whale density to trigger
which may be a section of floating line securely anchored with the holding
the DAM provisions of the ALWTRP.
not to exceed one-third the overall power of at least a 22 lb (10.0 kg)
Once a DAM zone is triggered, NMFS length of the buoy line;
determines whether to impose Danforth-style anchor at each end of the
3. Fishermen are allowed to use two net string.
restrictions on fishing and/or fishing buoy lines per trawl; and
gear in the zone. This determination is The restrictions will be in effect
4. A weak link with a maximum beginning at 0001 hours November 18,
based on the following factors, breaking strength of 600 lb (272.4 kg)
including but not limited to: the 2006, through 2400 hours December 2,
must be placed at all buoys. 2006, unless terminated sooner or
location of the DAM zone with respect Fishermen utilizing lobster trap/pot
to other fishery closure areas, weather extended by NMFS through another
gear within the portion of the Offshore notification in the Federal Register.
conditions as they relate to the safety of Lobster Waters Area that overlap with The restrictions will be announced to
human life at sea, the type and amount the DAM zone are required to utilize all state officials, fishermen, ALWTRT
of gear already present in the area, and of the following gear modifications members, and other interested parties
a review of recent right whale while the DAM zone is in effect: through e-mail, phone contact, NOAA
entanglement and mortality data. 1. Groundlines must be made of either
website, and other appropriate media
NMFS has reviewed the factors and sinking or neutrally buoyant line.
immediately upon issuance of the rule
management options noted above Floating groundlines are prohibited;
2. All buoy lines must be made of by the AA.
relative to the DAM under
consideration. As a result of this review, either sinking or neutrally buoyant line, Classification
NMFS prohibits lobster trap/pot and except the bottom portion of the line, In accordance with section 118(f)(9) of
anchored gillnet gear in this area during which may be a section of floating line the MMPA, the Assistant Administrator
the 15–day restricted period unless it is not to exceed one-third the overall (AA) for Fisheries has determined that
modified in the manner described in length of the buoy line; this action is necessary to implement a
this temporary rule. 3. Fishermen are allowed to use two
take reduction plan to protect North
The DAM Zone is bound by the buoy lines per trawl; and
4. A weak link with a maximum Atlantic right whales.
following coordinates: Environmental Assessments for the
43° 29′ N., 70° 23′ W. (NW Corner) breaking strength of 1,500 lb (680.4 kg)
DAM program were prepared on
43° 29′ N., 69° 44′ W. must be placed at all buoys.
December 28, 2001, and August 6, 2003.
42° 47′ N., 69° 44′ W. Anchored Gillnet Gear This action falls within the scope of the
42° 47′ N., 70° 38′ W. Fishermen utilizing anchored gillnet analyses of these EAs, which are
43° 08′ N., 70° 38′ W. and follow the gear within the portions of the Other available from the agency upon request.
coastline northeast to Northeast Gillnet Waters Area and NMFS provided prior notice and an
43° 29′ N., 70° 23′ W. (NW Corner) Stellwagen Bank/Jeffreys Ledge opportunity for public comment on the
In addition to those gear Restricted Area that overlap with the regulations establishing the criteria and
modifications currently implemented DAM zone are required to utilize all the procedures for implementing a DAM
under the ALWTRP at 50 CFR 229.32, following gear modifications while the zone. Providing prior notice and
the following gear modifications are DAM zone is in effect: opportunity for comment on this action,
required in the DAM zone. If the 1. Groundlines must be made of either pursuant to those regulations, would be
requirements and exceptions for gear sinking or neutrally buoyant line. impracticable because it would prevent
modification in the DAM zone, as Floating groundlines are prohibited; NMFS from executing its functions to
described below, differ from other 2. All buoy lines must be made of protect and reduce serious injury and
ALWTRP requirements for any either sinking or neutrally buoyant line, mortality of endangered right whales.
overlapping areas and times, then the except the bottom portion of the line, The regulations establishing the DAM
more restrictive requirements will apply which may be a section of floating line program are designed to enable the
in the DAM zone. Special note for not to exceed one-third the overall agency to help protect unexpected
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gillnet fisherman: A portion of this length of the buoy line; concentrations of right whales. In order
DAM zone overlaps the year-round 3. Fishermen are allowed to use two to meet the goals of the DAM program,
Western Gulf of Maine Closure Area for buoy lines per string; the agency needs to be able to create a
Northeast Multispecies found at 50 CFR 4. Each net panel must have a total of DAM zone and implement restrictions
648.81(e). Due to this closure, sink five weak links with a maximum on fishing gear as soon as possible once

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66692 Federal Register / Vol. 71, No. 221 / Thursday, November 16, 2006 / Rules and Regulations

the criteria are triggered and NMFS program is consistent to the maximum governing the Maine mahogany quahog
determines that a DAM restricted zone extent practicable with the enforceable fishery require publication of this
is appropriate. If NMFS were to provide policies of the approved coastal notification to advise the public of this
prior notice and an opportunity for management program for that state. closure. This closure does not apply to
public comment upon the creation of a The DAM program under which vessels with a Maine mahogany quahog
DAM restricted zone, the aggregated NMFS is taking this action contains permit that are fishing under an ocean
right whales would be vulnerable to policies with federalism implications quahog individual transferable quota
entanglement which could result in warranting preparation of a federalism (ITQ).
serious injury and mortality. assessment under Executive Order DATES: Effective 0001 hrs local time,
Additionally, the right whales would 13132. Accordingly, in October 2001 November 14, 2006, through 2400 hrs
most likely move on to another location and March 2003, the Assistant Secretary local time, December 31, 2006.
before NMFS could implement the for Intergovernmental and Legislative
FOR FURTHER INFORMATION CONTACT:
restrictions designed to protect them, Affairs, Department of Commerce,
Tobey Curtis, 978–281–9273; fax 978–
thereby rendering the action obsolete. provided notice of the DAM program
281–9135; email
Therefore, pursuant to 5 U.S.C. and its amendments to the appropriate
Tobey.Curtis@Noaa.gov.
553(b)(B), the AA finds that good cause elected officials in states to be affected
exists to waive prior notice and an by actions taken pursuant to the DAM SUPPLEMENTARY INFORMATION: The
opportunity to comment on this action program. Federalism issues raised by regulations governing the Maine
to implement a DAM restricted zone to state officials were addressed in the mahogany quahog fishery appear at 50
reduce the risk of entanglement of final rules implementing the DAM CFR part 648, subpart E. The annual
endangered right whales in commercial program. A copy of the federalism quota for the harvest of mahogany
lobster trap/pot and anchored gillnet Summary Impact Statement for the final quahogs within the Maine mahogany
gear as such procedures would be rules is available upon request quahog zone for the 2006 fishing year
impracticable. (ADDRESSES). was established at 100,000 Maine bu
For the same reasons, the AA finds The rule implementing the DAM (35,150 hL), as stated in the final rule
that, under 5 U.S.C. 553(d)(3), good program has been determined to be not published on December 28, 2005 (70 FR
cause exists to waive the 30–day delay significant under Executive Order 76715). The Maine mahogany quahog
in effective date. If NMFS were to delay 12866. zone is defined as the area bounded on
for 30 days the effective date of this Authority: 16 U.S.C. 1361 et seq. and 50
the east by the U.S.-Canada maritime
action, the aggregated right whales CFR 229.32(g)(3) boundary, on the south by a straight line
would be vulnerable to entanglement, at 43° 50′ N. lat., and on the north and
Dated: November 9, 2006. west by the shoreline of Maine.
which could cause serious injury and
Samuel D. Rauch III, The Administrator, Northeast Region,
mortality. Additionally, right whales
would likely move to another location Deputy Assistant Administrator for NMFS (Regional Administrator)
Regulatory Programs, National Marine monitors the commercial Maine
between the time NMFS approved the
Fisheries Service. mahogany quahog quota for each fishing
action creating the DAM restricted zone
and the time it went into effect, thereby [FR Doc. 06–9226 Filed 11–13–06; 2:42 pm] year using dealer and other available
rendering the action obsolete and BILLING CODE 3510–22–S information to determine when the
ineffective. Nevertheless, NMFS quota is projected to have been
recognizes the need for fishermen to harvested. If the quota is projected to be
DEPARTMENT OF COMMERCE reached, NMFS is required to publish
have time to either modify or remove (if
not in compliance with the required notification in the Federal Register
National Oceanic and Atmospheric
restrictions) their gear from a DAM zone informing commercial vessel permit
Administration holders that, effective upon a specific
once one is approved. Thus, NMFS
makes this action effective 2 days after date, the Maine mahogany quahog quota
50 CFR Part 648 has been harvested and no commercial
the date of publication of this document
in the Federal Register. NMFS will also [Docket No. 051017270–5339–02; I.D. quota is available for harvesting
endeavor to provide notice of this action 083106D] mahogany quahogs by vessels
to fishermen through other means upon possessing a limited access Maine
Fisheries of the Northeastern United mahogany quahog permit for the
issuance of the rule by the AA, thereby
States; Atlantic Surfclam and Ocean remainder of the year, from within the
providing approximately 3 additional
Quahog Fishery; Quota Harvested for Maine mahogany quahog zone. This
days of notice while the Office of the
Maine Mahogany Quahog Fishery does not apply, however, to vessels with
Federal Register processes the
document for publication. AGENCY: National Marine Fisheries a Maine mahogany quahog permit that
NMFS determined that the regulations Service (NMFS), National Oceanic and are fishing under an ocean quahog ITQ,
establishing the DAM program and Atmospheric Administration (NOAA), and utilizing ITQ cage tags.
actions such as this one taken pursuant Commerce. The Regional Administrator has
to those regulations are consistent to the ACTION: Temporary rule; closure. determined, based upon dealer reports
maximum extent practicable with the and other available information, that the
enforceable policies of the approved SUMMARY: NMFS announces that the 2006 Maine mahogany quahog quota has
coastal management program of the U.S. annual quota for the Maine mahogany been harvested. Therefore, effective
Atlantic coastal states. This quahog fishery has been harvested. 0001 hrs local time, November 16, 2006,
determination was submitted for review Commercial vessels operating under a further landings of Maine mahogany
by the responsible state agencies under limited access Maine mahogany quahog quahogs harvested from within the
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section 307 of the Coastal Zone permit may not harvest Maine Maine mahogany quahog zone by
Management Act. Following state mahogany quahogs from the Maine vessels possessing a limited access
review of the regulations creating the mahogany quahog zone for the Maine mahogany quahog Federal
DAM program, no state disagreed with remainder of the fishing year (through fisheries permit are prohibited through
NMFS’ conclusion that the DAM December 31, 2006). Regulations December 31, 2006. The 2007 fishing

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