[Federal Register Volume 64, Number 30 (Tuesday, February 16, 1999)]
[Rules and Regulations]
[Pages 7529-7556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3507]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 970129015-9044-09; I.D. 031997C]
RIN 0648-AI84
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS by this action issues a final rule implementing a plan to
reduce serious injury and mortality to four large whale stocks that
occur incidental to certain fisheries. The target whale stocks are the
North Atlantic right whale (Eubalaena glacialis) western North Atlantic
stock; humpback whale (Megaptera novaeangliae) western North Atlantic
stock; fin whale (Balaenoptera physalus) western North Atlantic stock;
and minke whale (Balaenoptera acutorostrata), Canadian East Coast
stock. Covered by the plan are fisheries for multiple groundfish
species, including monkfish and dogfish, in the New England
Multispecies sink gillnet fishery; multiple species in the U.S. mid-
Atlantic coastal gillnet fisheries; lobster in the Gulf of Maine and
U.S. mid-Atlantic trap/pot fisheries; and sharks in the Southeastern
U.S. Atlantic gillnet fishery. This final rule includes time and area
closures for the lobster, anchored gillnet and shark gillnet fisheries;
gear requirements, including a general prohibition on having line
floating at the surface in these fisheries; a prohibition on storing
inactive gear at sea; and restrictions on setting shark gillnets off
the coasts of Georgia and Florida and drift gillnets in the mid-
Atlantic. The plan also contains non-regulatory aspects, including gear
research, public outreach, scientific research, a network to inform
mariners when right whales are in an area, and increasing efforts to
disentangle whales caught in fishing gear.
DATES: The regulations in this final rule are effective April 1, 1999.
ADDRESSES: Copies of progress reports on implementation of the Atlantic
Large Whale Take Reduction Plan (ALWTRP) and of the Final Regulatory
Flexibility Analysis for this rule may be obtained by writing Doug
Beach, NMFS, 1 Blackburn Dr., Gloucester, MA 01930. Copies of the most
recent Stock Assessment Reports for northern right whales, humpback
whales, fin whales and minke whales may be obtained by writing to
Gordon Waring, NMFS, 166 Water St., Woods Hole, MA 02543.
FOR FURTHER INFORMATION CONTACT: Kevin Chu, NMFS, Northeast Region,
508-495-2367; Katherine Wang, NMFS, Southeast Region, 727-570-5312; or
Greg Silber, NMFS, Office of Protected Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) requires commercial
fisheries to reduce the incidental mortality and serious injury of
marine mammals to insignificant levels approaching a zero mortality and
serious injury rate by April 30, 2001 (section 118(b)(1)).
For some marine mammal stocks and some fisheries, section 118(f)
requires NMFS to develop and implement take reduction plans to assist
in recovery or to prevent depletion. The immediate goal of a take
reduction plan is to reduce, within 6 months of its implementation, the
mortality and serious injury of stocks incidentally taken in the course
of U.S. commercial fishing operations to below the Potential Biological
Removal (PBR) levels established for such stocks. The PBR level is
defined in the MMPA as the maximum number of animals, not including
natural mortalities, that may be removed from a marine mammal stock
while allowing that stock to reach or maintain its optimum sustainable
population. The long-term goal of a take reduction plan is to reduce,
within 5 years of its implementation, the incidental mortality and
serious injury of strategic marine mammals taken in the course of
commercial fishing operations to insignificant levels approaching a
zero mortality and serious injury rate, taking into account the
economics of the fishery, the availability of existing technology, and
existing state or regional fishery management plans.
On July 22, 1997, NMFS published in the Federal Register an ALWTRP,
or a ``Plan'', and interim final regulations implementing that Plan (62
FR 39157). In this notice, NMFS reports on actions taken pursuant to
the Plan, and issues a final rule for it. The final rule makes minor
changes to the regulations in the interim final rule, but the general
outline of the Plan remains the same.
The Plan, in conjunction with other management actions, is intended
to meet the goals stated here for right whales, humpback, and fin
whales, all of which are listed as endangered species under the
Endangered Species Act (ESA), and for minke whales. The Plan may be
amended in the future to take account of new information or
circumstances.
The fisheries most affected by this plan are: anchored gillnet
fisheries, including the New England sink gillnet fishery; the Gulf of
Maine/U.S. Mid-Atlantic lobster trap/pot fishery; the U.S. mid-Atlantic
coastal gillnet fisheries; and the Southeastern U.S. Atlantic shark
gillnet fishery. The New England Multispecies sink gillnet fishery has
an historical incidental bycatch of humpback, minke, and possibly fin
whales. This gear type has been documented to entangle right whales in
Canadian waters. Additionally, entanglements of right whales in
unspecified gillnets have been recorded for U.S. waters, although U.S.
sink gillnets have not been conclusively identified as having entangled
right whales. The Gulf of Maine/U.S. mid-Atlantic lobster trap/pot
fishery has an historical bycatch of right, humpback, fin, and minke
whales. The mid-Atlantic coastal gillnet fisheries have an historical
incidental bycatch of humpback whales. The Southeastern U.S. Atlantic
gillnet fishery (for which sharks are generally the target species) is
believed to be responsible for bycatch of at least one right whale.
Some waters are exempt from this plan. The basic rule for the
exempted water boundaries is that all waters landward of the first
bridge over any embayment, harbor, or inlet will be exempted. Some bays
that do not have bridges over them are also exempted, including Long
Island Sound and Delaware Bay. South of the Virginia/
[[Page 7530]]
North Carolina border, all waters landward of the demarcation line of
the International Regulations for Preventing Collisions at Sea, 1972
(72 COLREGS line) are exempted. These are all areas where large whale
occurrences are so rare that NMFS believes gear requirements will have
no measurable effect on reducing entanglements. In a change from the
interim final rule, the only exempted waters in the Gulf of Maine are
those waters landward of the first bridge over any embayment. For a
discussion of the rationale for this change, see ``Changes From the
Interim Final Rule''. For a precise definition of the exempted areas,
see the regulation section of this final rule.
Current Entanglement Rates and Population Status
The information in this section is from the 1996 Stock Assessment
Reports (Waring et al., 1997) compiled by NMFS, as required by the
MMPA, from information collected for the 1998 Stock Assessment Reports,
and from 1997 and 1998 entanglement reports compiled by NMFS.
Additional information about the population biology and human-caused
sources of mortalities and serious injuries is included in the 1996
Stock Assessment Reports, which are available from NMFS (see
ADDRESSES). The 1998 Stock Assessment Reports are currently under
review.
Some entanglements of large whales were observed by the NMFS sea
sampling program; however, most records come from various sources such
as small vessel operators. Limitations on the use of the available
entanglement data include (1) not all observed events are reported; (2)
most reports are opportunistic rather than arriving from systematic
data collection, and, thus, conclusions cannot be made regarding actual
entanglement levels; (3) identification of the gear type or of the
fishery involved is often problematic; and (4) identification of the
location where the entanglement first occurred is often difficult since
the first observation usually occurs after the animal has left the
original location.
North Atlantic Right Whales
The northern right whale is the rarest of all large cetaceans and
one of the most endangered species in the world. The western North
Atlantic population is estimated at 295 animals (Knowlton et al., 1994)
and is unlikely to be significantly higher. The best published estimate
of the population growth rate is 2.5 percent per year (Knowlton et al.,
1994). However, many uncertainties exist in this estimate, and further
assessment is required, notably in light of the known high levels of
anthropogenic mortality in this species. The PBR level for this
population is 0.4 incidents of serious injury or mortality per year.
Approximately one-third of all known right whale mortality is
caused by human activities (Kraus, 1990). Further, the small population
size and low annual reproductive rate suggest that human sources of
mortality may have a greater effect on population growth rates of the
right whale than on those of other whales. The principal factors
retarding growth of the population are believed to be ship strikes and
entanglement in fishing gear.
For the period 1991 through 1996, the total human-caused mortality
and serious injury to right whales is estimated as 2.3 incidents per
year. Of this figure, 1.0 incident per year is attributed to
entanglements and 1.3 to ship strikes. Note that some injuries or
mortalities may go undetected, particularly those that occur offshore.
Therefore, the estimates above should be considered minimum estimates.
In June 1997 (prior to the publication of the interim final rule),
there was an entanglement in U.S. offshore lobster gear off Chatham,
MA. This whale was disentangled without evidence of compromising injury
and is not likely to be classified as a ``serious injury'' when
analysis of the event is complete. There was another entanglement also
reported in U.S. waters in 1997, in which a right whale was seen
carrying a line from unknown gear. This whale was later seen by
researchers from the New England Aquarium, who believe the line may
have been shed during the summer.
Four entangled right whales were sighted in the Bay of Fundy in
1997, after the interim final rule was published. At least two of these
entanglements are likely to be classified as serious injuries or
mortalities when the reports are reviewed. None of these entanglements
can be positively attributed to U.S. fisheries. No entangled right
whales were seen in U.S. waters during the first 6 months of the
implementation of the Plan (from July 22, 1997, to January 22, 1998).
In 1998, there were extensive aerial surveys of right whale critical
habitats in the United States; no entangled right whales were seen
during these surveys.
In 1998, four right whales were reported entangled. On July 12, two
right whales were trapped in a weir near Grand Manan Island, Canada.
Both whales were released 2 days later with apparently minor scratches.
One right whale was seen entangled in rope of unidentified origin
on August 15 near Mingan Island in the Gulf of St. Lawrence. The whale
was too active to approach safely to disentangle it. It appeared to
free itself of most of the gear but may still be trailing some line.
One right whale was entangled twice (and actually disentangled
three times) in Cape Cod Bay. The whale had been first seen entangled
in 1997 in the Bay of Fundy. On July 24, 1998, the whale was seen near
Dennis, MA (Cape Cod Bay). Most, but not all, of the gear it had been
carrying from the 1997 entanglement was removed by the disentanglement
team on that date. (NMFS has not been able to identify the type of gear
responsible for this 1997 entanglement. However, the gear is still
being studied.) The same whale was seen again near Provincetown, MA, on
September 12 with a lobster buoy line through its mouth. This line was
cut but not completely removed at that time. The right whale was seen
again 2 days later (September 14) near Barnstable, MA. In the interim,
it had picked up additional lobster gear, which was entirely removed.
At last report, the whale was swimming freely but still had a thin line
in its mouth from the entanglement in 1997.
A final evaluation as to whether these entanglements will be
considered serious injuries has not yet been made. The agency is in the
process of developing guidelines to standardize this kind of
evaluation.
Humpback Whales
The best estimate of abundance for North Atlantic humpback whales
is 10,600 (Coefficient of Variation (CV) = 0.067, Smith et al., 1998).
The minimum population estimate for this stock is 10,019 (CV = 0.067)
(Waring et al., in prep). Within this population, the humpback whales
in the Gulf of Maine constitute a distinct, relatively small, feeding
sub-population. However, it is not genetically distinct from other sub-
populations in the western North Atlantic, which are all treated as a
single stock for the purposes of the Plan and the estimation of PBR.
For purposes of the current stock assessment, the maximum net
productivity rate for western North Atlantic humpback whales is assumed
to be 0.065 (Barlow and Clapham, 1997). The PBR level for this stock is
32.6 humpback whales per year.
For the period 1991 through 1996, the total estimated human-caused
mortality and serious injury to humpback whales in U.S. waters is
estimated as 5.8 per year. This is derived from three components: (1)
Entanglements that have been reported by NMFS observers, (2) additional
fishery interaction records, and (3) vessel collision records.
[[Page 7531]]
Fin Whales
The best available estimate of abundance for the western North
Atlantic fin whale is 2,700 (CV = 0.59), which is considered
conservative (Waring et al., in prep). The minimum population estimate
is 1,704 (CV = 0.59) (ibid.). For purposes of the current stock
assessment, the maximum net productivity rate for fin whales is assumed
to be 0.04. The PBR for this stock is 3.4.
Entanglements of fin whales are rarely documented. Because of the
paucity of stranded animals or other records, NMFS has not calculated
an average entanglement rate, although it believes that serious
injuries or mortalities due to entanglements of fin whales occur at a
rate below 10 percent of PBR. A review of 26 records of stranded or
floating (dead or injured) fin whales for the period of 1992 through
1996 showed that three had formerly been entangled in fishing gear. Two
of these had net or rope marks on the body, and one had line through
the mouth and around the tail.
Minke Whales
Minke whales off the eastern coast of the United States are
considered to be part of the Canadian east coast population, which
inhabits the area from the eastern half of Davis Strait south to the
Gulf of Mexico. The best estimate of the population is 2,760 (CV =
0.32) (Waring et al., in prep.), which is considered conservative. The
minimum population estimate for Canadian east coast minke whales is
2,145 (CV = 0.32) (ibid.). The current and maximum net productivity
rates are not known, but the maximum rate is assumed to be 0.04. The
PBR for this stock of minke whales is 17.
Accurate estimates of human-caused mortality are not available for
this species because it is likely that many entanglements, injuries,
and mortalities go unobserved and/or unrecorded. The total annual
estimated average fishery-related mortality and serious injury to this
stock in fisheries that have been observed by NMFS is 0.8 minke whales.
However, the total number of entanglements from all fisheries is
unknown. The figure is believed to be less than PBR but greater than 10
percent of PBR. Entanglements are known to occur in Canadian waters as
well.
Atlantic Large Whale Take Reduction Plan
As stated earlier and as required by the MMPA, the Plan has two
goals. The short-term goal is to reduce serious injuries and
mortalities of right whales in U.S. commercial fisheries to below 0.4
animals per year by January 1998. The long-term goal is to reduce by
April 30, 2001, entanglement-related serious injuries and mortalities
of right whales, humpback whales, fin whales, and minke whales to
insignificant levels approaching a zero mortality and serious injury
rate, taking into account the economics of the fisheries, the
availability of existing technology, and existing state and regional
fishery management plans.
To reach the short-term goal, the Plan was expected to achieve the
necessary take reductions within 6 months through (1) establishing
closures of critical habitats to some gear types during times when
right whales are usually present; (2) restricting the way strike nets
are set in the southeastern U.S. gillnet fishery to minimize the risk
of entanglement and requiring observers on shark gillnet vessels
operating adjacent to the southeast U.S. critical habitat; (3)
requiring that all lobster and sink gillnet gear be set in such a way
as to prevent line from floating at the surface; (4) requiring all
lobster and anchored gillnet gear to have at least some additional
characteristics that may reduce the risks of entanglements, (5)
requiring that drift gillnets in the mid-Atlantic be either tended or
stored on board at night; (6) improving the voluntary network of
persons trained to assist in disentangling right whales; and (7)
prohibiting storage of inactive gear in the ocean.
Although NMFS is not aware of any right whales entangled in U.S.
fishing gear during the first 6 months of the implementation of the
Plan, it is unable to determine whether the short-term goal of the Plan
was met. Because right whale entanglements are rare and because there
is no way of knowing that all entanglements were detected, it is
impossible to demonstrate conclusively that the goals of the MMPA were
achieved. At the same time, NMFS cannot conclude that PBR was exceeded.
The 1997 entanglements that might be classified as serious injuries or
mortalities were first observed in Canadian waters. The two known
entanglements that occurred in U.S. waters during the first 6 months of
the Plan did not appear to be serious. It is clear, however, that
entanglement in fishing gear remains a danger to individual right
whales and that continued reductions in the risk of such entanglements
would be prudent, given the endangered status of the population.
The steps in the implementation of the Plan designed to achieve the
long-term goal include (1) improving public involvement in take
reduction efforts, including conducting outreach and educational
workshops for fishermen; (2) instituting ``Take Reduction Technology
Lists'' from which fishermen must choose gear characteristics that are
intended to decrease the risks of entanglement; (3) facilitating
research and development of fishing gear that will reduce the risk of
entanglement; (4) continuing to improve the disentanglement effort,
including encouraging more cooperation from fishermen; (5) implementing
a gear marking program, (6) developing contingency plans in cooperation
with states for when right whales are present at unexpected times and
places; (7) working with Canada to decrease entanglements in its
waters; (8) improving monitoring of the right whale population
distribution and biology; (9) conducting aerial surveys to monitor
whale distribution, fishing effort and shipping traffic, (10)
maintaining a network to alert maritime users about right whale
distribution; and (11) establishing the framework of an abbreviated
rule-making process to allow NMFS to change the requirements of the
plan through notification in the Federal Register, thereby improving
the responsiveness of NMFS.
NMFS intends to make active use of the Atlantic Large Whale Take
Reduction Team (TRT), an advisory group that includes fishermen,
scientists, and representatives of environmental groups and state
governments, to review progress on reaching the goals of the ALWTRP and
to make recommendations on how to continue to decrease serious injuries
and mortalities due to entanglements. NMFS also intends to continue to
seek technical advice on matters pertaining to gear development for its
Gear Advisory Group (GAG), which is composed of persons with direct
knowledge of fishing gear or disentangling large whales. NMFS convened
the GAG on October 7-8, 1998, and will convene the TRT on February 8-
10, 1999. NMFS may modify the plan if it receives a recommendation from
the teams to do so.
Report of First Year Activities
During the first year of the Plan, NMFS raised the level of funding
for research and development of fishing gear that reduces the risks of
entanglement, expanded its disentanglement efforts, increased efforts
to raise awareness of marine mammal entanglement problems, conducted or
contributed funds to conduct aerial surveys to monitor the distribution
of right whales, to collect
[[Page 7532]]
photographs for individual identification, and to alert ship operators
of the locations of right whales, and increased funding for basic
research on right whale population and conservation biology.
The goal of the gear research is to develop new fishing gear or
methods that minimize the risk of entanglements by large whales, either
by reducing the chances that a whale will encounter the gear or by
reducing the likelihood that gear, when encountered, will entangle the
animal. Since the publication of the Plan in 1997, research has been
conducted in the following areas: (1) Design, development, testing, and
manufacture of inexpensive weak links, (2) remotely operated vehicle
observations of the configuration of gillnets and lobster gear, (3)
estimation of the tractive (pulling) force of right whales, (4) land
testing of gillnet modifications, (5) baleen tests with various lines,
knots, and splices (to understand how a line gets caught in baleen),
and (6) design and fabrication of underwater and dry load cell systems
for measuring the hauling and towing loads of fishing gear and the
tractive force of animals.
The current disentanglement effort consists of a primary team which
has field station support in the northern Gulf of Maine/Bay of Fundy,
central Gulf of Maine, southern Gulf of Maine, and Georgia/Florida. The
northern Gulf of Maine/Bay of Fundy field station is operational only
when biologists are conducting seasonal right whale research. The U.S.
Coast Guard (USCG) provides critical support in monitoring initial
entanglement reports and transporting persons experienced in
disentangling whales. Although the Disentanglement Team currently
attempts to respond to all legitimate entanglement reports, the
priority for response is for any immediately life-threatening event of
endangered right and humpback whales. NMFS has also created a permanent
contact point in Maine to supplement the existing infrastructure
operating out of the Center for Coastal Studies in Provincetown,
Massachusetts. Plans are also underway to establish a disentanglement
team in the mid-Atlantic region.
The success of the Plan depends on the cooperation of fishermen in
assisting disentanglement efforts as well as in providing ideas for
gear research. During the first year of the Plan, NMFS hired a person
in Maine to work directly with the fishermen on these matters. NMFS has
held 21 meetings in Maine to date, with over 300 fishermen in
attendance, of which about 200 have indicated they wish to participate
in additional training to further assist in any disentanglement effort
in their area. From this series of meetings, a network of qualified
responders will be established to coordinate reports, carry out
monitoring, and assist the existing Team in response to entangled
whales along the coast of Maine. NMFS also met with fishermen directly
at fishermen's forums and contracted Sea Grant to discuss proper
reporting and operational procedures regarding entangled whales and to
gather ideas for appropriate gear modifications. Continued outreach
activities in Maine, southern New England, the southeast U.S. and in
the Mid-Atlantic are planned.
Existing partnerships with the USCG and the Massachusetts Division
of Marine Fisheries and Massachusetts Environmental Trust have resulted
in significant additional resources for carrying out the tasks outlined
in the Plan. Similar partnerships with the 5th, 7th, and 8th U.S. Coast
Guard (USCG) districts are currently being finalized. The USCG
conducted aerial surveys for large whales, assisted in disentanglement
response support, and provided funds for additional aerial survey
contracts carried out by NMFS. The State of Massachusetts funded aerial
survey coverage of Cape Cod Bay, as well as a habitat characterization
study of the Bay in 1998. Right whale sightings information from all
sources were provided to the northeast right whale alert system,
designed to inform mariners of the presence of right whales in critical
habitats. The sighting data were coordinated, verified, and processed
by NMFS. Verified sightings for each survey day are disseminated by an
automated fax system immediately after processing, and made available
to all marine resource users through various media. The coordinates of
the right whale sightings were broadcast for 24 hours by USCG via
Broadcast Notice to Mariners and NAVTEX, NOAA Weather Radio, and Army
Corps of Engineers Traffic Controllers at Cape Cod Canal to both target
shipping traffic as well as other marine resource users. Maps with
right whale sightings boxes are also posted on Massachusetts and NMFS
web pages and linked to other sites such as WHALENET. An NMFS Inquiry
Line at the Northeast Regional Office provides right whale sighting
faxes on demand to all interested callers.
During the first year of the Plan, NMFS drafted a memorandum of
Agreement (MOA) with USCG districts 5, 7, and 8 to formalize
cooperation in protecting marine mammals and endangered species,
especially in implementing a disentanglement network. (This MOA is
currently undergoing final review within the Department of Commerce.)
An MOA was also signed with the Navy, USCG, and the Army Corps of
Engineers to formalize cooperation in measures to protect northern
right whales in the southeast United States. This has provided a
mechanism for funding the southeast U.S. aerial surveys of right whale
critical habitat and the associated right whale alert system. NMFS has
continued to provide administrative support for the right whale alert
system. It has also conducted aerial surveys to the east, north, and
south of critical habitat in order to determine whether there may be a
need to extend current critical habitat boundaries.
Aerial surveys are also being conducted in the U.S. coastal waters
of the mid-Atlantic states to document abundance and distribution of
humpback whales in relation to vessel traffic and fishing effort.
Outreach activities are an integral part of all components of the
ALWTRP. NMFS contracted the Sea Grant offices at the University of
Maine and University of Rhode Island to set up an outreach program in
the New England and Mid-Atlantic areas. Sea Grant organized meetings,
workshops, and seminars at key fishermen's forums held from Fall 1997
through Spring 1998, covering the area from North Carolina to Rhode
Island. Sea Grant also prepared outreach handout materials and videos
for use at these and other forums and for the local meetings set up in
the Northeast. A letter was sent to all state and Federal lobster and
gillnet fishermen in the Northeast providing information about right
whales, the entanglement problem, and fishermen's responsibilities
under the ALWTRP. As mentioned above, NMFS also hired a Maine Plan
Coordinator to work closely with the Maine Lobster Zone Council system
to carry out outreach education and gear research collaboration.
In 1998, NMFS also met with shark gillnetters to develop awareness
of right whales and their current plight. This meeting was designed to
explain threats to right whales in the southeast United States and to
discuss the precautions necessary around them and what additional
measures the fishery might take to decrease the risk of interactions.
In addition to the above mentioned meeting, letters were sent to all
known shark gillnetters explaining the ALWTRP regulations. The letters
explained the need to contact NMFS to arrange for observer coverage
during the right whale calving season. During the
[[Page 7533]]
year, this observer program was established.
The Northeast Fisheries Science Center has increased its Protected
Species Branch staff to include a large whale research coordinator. Key
research on large whales conducted or funded by NMFS include (1)
maintaining the right and humpback whale photo ID catalogues where
individual identification of animals from photographs taken throughout
the western north Atlantic are processed; (2) analyzing data collected
from the right whale photo-identification catalogue for population
assessment; (3) expanding right whale genetics studies to determine the
matriarchal lines that make up the population; (4) supporting right
whale stranding response to maximize the information collected from
each carcass; (5) conducting directed right whale photo-identification
surveys in the Great South Channel; (6) assessing capabilities to
locate whales acoustically; (7) evaluating the status of the North
Atlantic humpback whale, and (8) surveying potential offshore summer
habitats for right whales.
Changes From the Interim Final Rule
1. Definition of ``Lobster Trap.'' The definition of the term
``lobster trap'' in the interim final rule was not as precise as it
should have been. Broadly interpreted, it could have been construed as
applying to gillnets and to bottom trawls that can catch lobster as
well as to traps. These gear types were not intended to be covered by
this term. Therefore, in this final rule, NMFS changes the definition
of ``lobster trap'' to be: ``any trap, structure or other enclosure
that is placed on the ocean bottom and is designed to or is capable of
catching lobsters.'' The intent of this definition is to include traps
and pots into which lobsters may crawl and be caught by virtue of their
inability to find their way out, and not to include mobile gear or
devices that catch lobsters through entanglement. The definition
includes black sea bass traps and scup traps. The terminology ``lobster
trap'' is used in this final rule, instead of ``lobster pot'' (used in
the interim final rule) solely to make the terminology consistent with
fishery management regulations. The Plan applies to the same gear,
whether called ``traps'' or ``pots.''
2. Definition of ``Gillnet''. The definition of ``gillnet'' in the
interim final rule could cause confusion as to which nets were included
in the regulations. Therefore, in this final rule, NMFS is amending the
definition to be as follows: ``fishing gear consisting of a wall of
webbing (meshes) or nets, designed or configured so that the webbing
(meshes) or nets are placed in the water column, usually held
approximately vertically, and are designed to capture fish by
entanglement, gilling, or wedging. The term `gillnet' includes gillnets
of all types, including but not limited to, sink gillnets, other
anchored gillnets (e.g. stab and set nets), and drift gillnets.
Gillnets may or may not be attached to a vessel.'' The term is intended
to include gillnets with or without tie-downs.
3. Elimination of exempted waters in the Gulf of Maine. The State
of Maine and groups representing Maine fishermen did not agree with the
lines delineating the exempted waters in the Gulf of Maine. These
groups commented that the lines chosen by NMFS were confusing and
difficult to enforce. On any given day, most lobstermen in Maine fish
on both sides of the exemption lines established in the interim final
rule. Because most fishermen in Maine waters will need to comply with
the ALWTRP regulations for some of their gear (that are set in waters
not exempted by the interim final rule), NMFS eliminates the exempted
waters in the Gulf of Maine until such time as the TRT can advise NMFS
on the most appropriate boundaries for exempted waters in that area.
Note, however, that the gear marking provisions that would have applied
in all non-exempted waters under the interim final rule have also been
changed and will not apply in most coastal waters in the Gulf of Maine.
4. Addition of exempted waters in Rhode Island. The State of Rhode
Island noted that the interim final rule failed to exempt some coastal
ponds from its regulations. In this final rule, waters are intended to
include the following rivers and coastal ponds where right whales have
never been seen: Winnapaug Pond, Green Hill Pond, Potter Pond, and the
Sakonnet River.
5. Gear marking requirements. In the interim final rule, the gear
marking system required the application of two color codes on the buoy
lines. In this final rule, the method of applying the marks has not
been changed from the interim final rule. However, gear marking is no
longer required in most areas.
The gear marking requirements of the interim final rule were
criticized by many. Some persons felt they were not specific enough to
give clear information about where entanglement problems occur. Others
were concerned that if gear was lost in a storm or towed by a boat to
another region and then entangled whales, it might give a false
impression of where the entanglement problem occurred. Some questioned
whether gear marking would provide any useful information, and others
wondered whether the method of marking would work.
In this final rule, NMFS no longer requires gear marking of lobster
and gillnet gear in most affected waters. Instead, it requires these
types of gear to be marked only in right whale critical habitat, in the
southeast observer area and on Stellwagen Bank and Jeffreys Ledge in
the Gulf of Maine. These are the areas where the risk of entanglement
is highest. If entanglements occur in the critical habitat areas during
times of high right whale use, they are subject to closure. The
Jeffreys Ledge/Stellwagen Bank area is an area used year-round by large
whales, and there have been calls for more action to lower
entanglements in that area. The marking scheme in the final rule could
give NMFS relatively precise information about entanglements that occur
in these key areas without requiring an extremely complex system that
would have to be devised to identify a large number of areas. It also
allows NMFS and the TRT to assess the value of gear marking and to
refine the technique without burdening most of the industry. If gear
marking proves workable and useful, the system could be expanded after
consultation with the Gear Advisory Group and the Take Reduction Team.
In a further change from the interim final rule, gillnetters in the
southeast U.S. need only mark their lines every 100 yards (91.4 m), not
every 100 feet (30.5 m), when this requirement comes into effect in
November 1999. The purpose of this change is to ease the marking burden
until it is known whether the system works as expected.
This gear marking requirement constitutes a collection of
information under the Paperwork Reduction Act. The Office of Management
and Budget (OMB) has given its approval to this collection of
information (OMB No. 0648-0364).
6. Gear requirements for lobster fishers in Cape Cod Bay critical
habitat. Several persons commented that the Federal government's
regulations for lobster gear in Cape Cod Bay critical habitat from
January 1 to May 15 were different from the regulations of the
Commonwealth of Massachusetts for the same area. NMFS believes that the
Commonwealth, working directly with the affected fishermen, has
developed a workable plan that has the allegiance of the fishermen to
lower the risk of entanglement. Therefore, in this final
[[Page 7534]]
rule, NMFS adopts the current version of the regulations established by
the Commonwealth for lobster gear set in this area and time.
Specifically, during the period from January 1 to May 15, weak links
with a breaking strength of no more than 500 lb (226.7 kg) must be
installed in all buoy lines, and it is permissible to set traps in
``doubles'', in which only two traps are joined together by a ground
line. Doubles can have only one buoy line. In the interim final rule,
the NMFS' regulations for Cape Cod Bay from Jan. 1 to May 15 called for
a breaking strength of 1100 lb (498.8 kg). The lower breaking strength
required by this final rule will reduce the risk that an entanglement
becomes serious. Fishing conditions in Cape Cod Bay appear to be such
that a 500 lb (226.7 kg). breaking strength does not pose a difficulty
for the industry. Allowing the use of doubles may reduce the number of
buoy lines in Cape Cod Bay. At least some fishermen have been using
four trap trawls (which may have two buoy lines) where they would
prefer to use a double (with one buoy line).
7. Elimination of anchoring options from the gillnet take reduction
technology list. The Gillnet Take Reduction Technology List in the
interim final rule allowed gillnets to hold down the lead line with
anchors, weights, or heavy rope as a bycatch reduction option. Allowing
the methods that increased the holding power of the lead line as
separate options without also requiring weak links to be installed in
the net panels has been determined to be ineffective. Without the weak
links, the extra weight could make it harder for the whale to carry a
net rather than help it to break free of the net as intended.
Therefore, in this final rule, NMFS eliminates from the Gillnet Take
Reduction Technology List the options for anchoring the lead line with
22-lb (10 kg) danforth-style anchors, 50 lb (22.7 kg) dead weights or
lead lines weighing 100 lb (45.4 kg) or more per 300 ft (92.4 m).
NMFS retains on the Gillnet Take Reduction Technology List the
option of putting weak links in the net panels. Although weak links
will only fail if the resistance to movement by the net is greater than
the breaking strength of the link (which was the original intent of the
anchoring requirements), NMFS notes that many gillnets are set with 22-
lb (10 kg) danforth-style anchors or weights with similar holding
capacity, whether or not such characteristics are on the Gillnet Take
Reduction Technology List.
The genesis of the anchoring options was a discussion within the
TRT of a suite of gear modifications consisting of weak links in the
nets and weighted lead lines. These discussions were based on a more
complex suite of gillnet modifications used in California with the aim
of reducing marine mammal entanglements. The TRT did not have before it
the full suite of modifications required by California. NMFS will
provide this to the TRT and to the GAG and will ask those groups to
consider the likely effectiveness of the California modifications and
the feasibility of applying those modifications to the New England
gillnet fishery. NMFS is also funding research on the forces that
gillnets can withstand under a range of conditions, including those
that might occur if a whale becomes entangled in the net. The GAG and
the TRT will also be asked to review the results of these tests.
8. The definition of ``anchored gillnet'' is modified slightly to
make clear that ``stab nets'' are included in this definition.
Likewise, the definition of ``sink gillnet'' is amended to clarify that
the regulations applying to sink gillnets are intended to apply to
``stab nets''. Similarly, the definition of ``gillnet'' has been
modified to clarify that what is termed ``meshes'' in some places is
included in the definition. The definition of ``Strikenet or to fish
with strikenet gear'' is amended slightly to make clear that strikenets
are considered a category of gillnets for the purposes of this rule and
that persons fishing with strikenets must comply with the call-in
requirement to fish anywhere within the SEUS observer area.
9. Several definitions were modified slightly to correct for
grammatical errors or to add clarity, including: (1) ``driftnet, drift
gillnet, or drift entanglement gear'', (2) ``tended gear or tend'', and
(3) ``weak link.''
10. New definitions for ``shark gillnetting'' and ``to strikenet
for sharks'' are included to clarify the fisheries affected by this
rule. These new definitions do not change the fisheries intended to be
covered by the Plan.
Fishery-Specific Measures of the Plan
American Lobster Trap/Pot Fisheries
Except for gear set in exempted waters, all lobster trap gear must
be set in such a way as to avoid having line floating at the surface at
any time. Floating line is allowed between two buoys on the same buoy
line and between a buoy and a high flyer.
Throughout the year, lobster trap buoy lines in the Great South
Channel must be marked with red and yellow marks. Lobster trap gear is
prohibited from the Great South Channel critical habitat area from
April 1 through June 30, until the Assistant Administrator for
Fisheries (AA) determines that alternative fishing practices or gear
modifications have been developed that reduce the risk of serious
injury or mortality to whales to acceptable levels. From July 1 through
March 31, lobster trap gear set in the Great South Channel critical
habitat must have at least two characteristics from the Take Reduction
Technology List that follows. Note that, although portions of the Great
South Channel critical habitat would be considered offshore, NMFS
believes that the weaker maximum breaking strengths allowed for inshore
gear are more appropriate in the critical habitat, since right whales
may return to the area when not expected. Therefore, the Great South
Channel critical habitat is not considered ``offshore'' for the
purposes of the Plan. Lobster trap gear set in this area must comply
with the inshore gear characteristics.
From January 1 through May 15, lobster trap gear may not be set in
the Cape Cod Bay critical habitat unless it meets certain criteria. All
lobster trap gear set during that time must have all four of the
following characteristics: (1) All buoys must be attached to the buoy
line with a weak link with a maximum breaking strength of up to 500 lb
(226.7 kg). (2) All traps must be set in either ``doubles'' (two trap
trawls with a single buoy line) or trawls of four or more traps. Single
traps and trawls with exactly three traps are not allowed. (3) All buoy
lines must be made of sinking line, except for the bottom third of the
line, which may be floating line. (4) All ground lines between traps
must be made of sinking line. These measures are intended to conform to
the current requirements set by the State of Massachusetts for its
portion of the critical habitat during that period. From May 16 to
December 31, lobster trap gear set in the Federal portion of the Cape
Cod Bay critical habitat must have at least two characteristics from
the Take Reduction Technology List. Throughout the year, the buoy lines
of lobster trap gear set in the Cape Cod Bay critical habitat must be
marked with red and orange marks.
The Stellwagen Bank/Jeffreys Ledge (SB/JL) area is defined as all
Federal waters in the Gulf of Maine that lie to the south of the
43 deg.15' N lat. line and west of the 70 deg. W long. line, except
right whale critical habitat. In this area, lobster trap gear must
always have at least two characteristics from the Lobster Take
Reduction Technology list. In addition, the buoy lines of lobster trap
gear set in this area must be marked with red and black marks.
Fishermen
[[Page 7535]]
should be aware that humpback and/or right whales are present in this
area most months of the year. If the gear modifications are not
sufficient to reduce serious injury and mortality to right and humpback
whales to achieve the 5-year zero mortality and serious injury rate
goal, additional restrictions or closures in some or all of this area
may be necessary. A decision to close any portion of this area would be
made in consultation with the TRT, and after public comment.
In all other areas, lobster trap gear must be set with at least one
characteristic from the Lobster Take Reduction Technology list. This
requirement applies year-round in the inshore and offshore lobster
fishery north of 41 deg.30' N lat. and from December 1 through March 31
in the inshore and offshore lobster fishery south of 41 deg.30' N lat.
Some of the gear characteristics are applicable only to offshore
lobster fishing because conditions offshore require heavier gear.
However, fishermen using offshore gear are encouraged to use the
inshore standards. No gear marking is required in these other areas.
Figure 1 shows the boundaries of the areas where the requirements
for the lobster fishery apply.
The Lobster Take Reduction Technology List is as follows:
1. All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
2. All buoys are attached to the buoy line with a weak link having
a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may
include swivels, plastic weak links, rope of appropriate breaking
strength, hog rings, or rope stapled to a buoy stick.
3. For lobster traps set in offshore lobster areas only, all buoys
are attached to the buoy line with a weak link having a maximum
breaking strength of up to 3780 lb (1714.3 kg).
4. For traps set in offshore lobster areas only, all buoys are
attached to the buoy line by a section of rope no more than \3/4\ the
diameter of the buoy line.
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[[Page 7536]]
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[[Page 7537]]
5. All buoy lines are composed entirely of sinking line.
6. All ground lines are made of sinking line.
Anchored Gillnet Fisheries
All sink gillnet gear and other anchored gillnet gear must be set
in such a way as to avoid having line floating at the surface at any
time. Floating line is allowed between two buoys on the same buoy line
and between a buoy and a high flyer attached to the same buoy line.
Sink gillnet gear is prohibited from most of the Great South
Channel critical habitat area from April 1 through June 30, until the
AA determines that alternative fishing practices or gear modifications
have been developed that reduce the risk of serious injury or mortality
to whales to acceptable levels. Sink gillnets may be used year-round in
the ``sliver area'' and from July 1 to March 31 in the entire Great
South Channel critical habitat, provided that such gear has at least
two characteristics from the Gillnet Take Reduction Technology list.
Throughout the year, gillnet buoy lines in the Great South Channel must
be marked with yellow and green marks.
From January 1 to May 15, the Cape Cod Bay critical habitat is
closed to sink gillnet gear. From May 16 to December 31, gillnet gear
set in the Cape Cod Bay critical habitat must have at least two
characteristics from the Gillnet Take Reduction Technology List.
Throughout the year, the buoy lines of gillnet gear set in the Cape Cod
Bay critical habitat must be marked with green and orange marks.
Gillnet gear in the SB/JL area (as defined in this notice under
``Fishery-specific Measures of the Plan, American Lobster Trap/Pot
Fisheries'') must always have at least two characteristics from the
Gillnet Take Reduction Technology List. In addition, the buoy lines of
gillnet gear set in this area must be marked with green and black
marks. Fishermen should be aware that humpback and/or right whales are
present in the SB/JL area most months of the year. If the gear
modifications are not sufficient to reduce serious injury or mortality
to right and humpback whales to achieve the 6-month PBR goal or the 5-
year zero mortality and serious injury rate goal, additional
restrictions or closures of certain portions of the SB/JL area may be
necessary.
In all other ``northeast waters'' (defined as Federal and state
waters east of 72 deg.30' W long.), gillnet gear must be set with at
least one characteristic from the Gillnet Take Reduction Technology
List at all times. Mid-Atlantic gillnets (gillnets set west of
72 deg.30' W long. and north of 33 deg.51' N lat.) must have at least
one characteristic from this list from December 1 to March 31. No gear
marking is required in either area.
Figure 2 shows the boundaries of the areas where the requirements
for the sink gillnet fishery apply.
The Gillnet Take Reduction Technology List is as follows:
1. All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
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[[Page 7538]]
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[[Page 7539]]
2. All buoys are attached to the buoy line with a weak link having
a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may
include swivels, plastic weak links, rope of appropriate breaking
strength, hog rings, or rope stapled to a buoy stick.
3. Weak links with a breaking strength of up to 1100 lb (498.8 kg)
are installed in the float rope between net panels.
4. All buoy lines are composed entirely of sinking line.
Mid-Atlantic Coastal Gillnet Fishery--Drift Gillnets
From December 1 to March 31, all vessels using driftnets in the
mid-Atlantic gillnet area are required to haul all such gear and stow
all such gear on the vessel before returning to port. If driftnets are
set at night, they must remain attached to the vessel.
Southeast U.S. Shark Gillnet Fishery
The area from 27 deg.51' N lat. (near Sebastian Inlet, FL) to
32 deg.00' N lat. (near Savannah, GA) extending from the shore outward
to 80 deg. W long. is closed to shark gillnet fishing, except for
strikenetting, each year from November 15 to March 31. Strikenetting is
permitted under certain conditions set forth in the rule. In addition,
observer coverage is required for the use of gillnets in the area from
West Palm Beach (26 deg.46.5' N lat.) to Sebastian Inlet (27 deg.51' N
lat.) from November 15 through March 31 and for the use of strikenets
in the area between West Palm Beach, FL, and Savannah, GA, for the same
time period. Vessel operators intending to use these gear types in
these areas must notify NMFS at least 48 hours in advance of departure
to arrange for observer coverage. It should be noted that state waters
in this area presently ban gillnetting. In addition, shark gillnets,
including strikenets, must be marked with green and blue marks to
identify the fishery and region in which the gear is fished.
Figure 3 shows the boundaries of the areas where the requirements
for the shark gillnet fishery apply.
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[[Page 7540]]
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[[Page 7541]]
Other Entanglement Reduction Measures Not Specified in This Plan:
Other measures under the Magnuson-Stevens Fishery Conservation and
Management Act that are expected to decrease the risk of entanglement
of whales in sink gillnets are either currently in effect or under
consideration. Reductions in allowable days at sea and seasonal or
year-round area closures to protect groundfish will reduce the risk of
entangling right whales. A significant portion of the SB/JL restricted
area is closed year-round to all gillnets (and other gear capable of
catching groundfish). In addition, currently there are 1-month closures
to gillnet and other groundfish fish gear in March, April, May, and
June along the coast of the Gulf of Maine. Additional closures are
being considered by the New England Fishery Management Council. A
prohibition against setting gillnets with mesh size greater than 7
inches in the mid-Atlantic (from the South Carolina/North Carolina
border to Delaware) from February 15 to March 15 coincides with a
portion of the time when humpback whales are present in the area and
when right whales may be migrating through the area on their way north.
Proposed closures to monkfish gillnets in the Mid-Atlantic coincide
with the time when humpback whales are likely to be in the area.
Some level of lobster trap gear effort reduction is expected to be
proposed and implemented under the provisions of the Atlantic Coast
Marine Fisheries Cooperative Act. The Atlantic States Marine Fisheries
Commission has recommended that the maximum number of traps a person
may set be limited in state and inshore Federal waters of the Gulf of
Maine to 800 traps and to 2000 traps in Gulf of Maine offshore waters
by the year 2000. Trap reductions may occur in areas south of Cape Cod
as well. Some offshore areas south of Georges Bank are closed to
lobster trap gear during some summer months in order to reduce
conflicts with mobile gear. While the closed areas are not the usual
right whale habitat, the times when lobster gear is prohibited include
periods when right whales may wander into the areas. Gear conflict
reduction measures are also expected to decrease the amount of lost
gear, which should reduce the risk that whales would become entangled
in ``ghost'' gear. Any effort reduction measures implemented for the
lobster fishery would reduce the risk of entanglement of whales in that
gear.
Comments and Responses
Comments on the interim final rule were received from the States of
Maine and Rhode Island; the New England Fishery Management Council; the
Rhode Island Coastal Resources Management Council; 19 conservation
organizations including the Center for Marine Conservation, Chequamegon
Audubon Society, Greenpeace, Humane Society of the U.S., the
International Wildlife Coalition, and a joint letter from 18
conservation organizations (including most of the aforementioned ones);
6 fishermen's organizations, including Cape Cod Gillnetter's
Association, Maine Lobster Promotion Council, Maine Lobstermen's
Association, Maine Zone E Council, Offshore Lobster ad hoc Whale
Working Group, and the New Hampshire Commercial Fishermen's
Association; Cetacean Research Unit; Marine Mammal Commission; New
England Aquarium; Washington Legal Foundation; and 23 individuals.
Approximately 4700 signatures were received on petitions urging NMFS to
strengthen the regulations in the interim final rule.
Comments in Support of the Interim Final Rule
Comment 1: A number of commenters expressed support for the interim
final rule and appreciation for NMFS responsiveness to the concerns and
suggestions made by the fishing industry on the proposed rule. These
commenters felt that the interim final rule was a good step toward
developing a cooperative relationship with the fishing industry to
reduce the bycatch of large whales.
Response: NMFS appreciates the expressions of support. It believes
that the cooperation of the fishing industry is essential to make the
ALWTRP achieve its goals.
Comment 2: Several commenters believed that the ALWTRP had a
realistic potential of achieving its stated goals.
Response: NMFS agrees, provided that the partnership with the
industry continues to make progress in reducing serious injuries and
mortalities of large whales in fishing gear. The zero mortality rate
goal may be difficult to achieve. To reach it will require continued
efforts to develop effective gear modifications and to improve the
disentanglement teams.
Comment 3: The State of Maine expressed appreciation for NMFS
commitment to fund a position to function as a liaison among the
fishermen, coastal communities, the State, and NMFS.
Response: This position is important to the outreach and gear
research efforts of NMFS in Maine to improve cooperation on the ALWTRP.
When funding is available, NMFS hopes to fund a second such liaison
position for southern New England.
Comments in General Opposition to the Plan and the Interim Final
Rule
Comment 4: Many comments and petitions were received urging NMFS to
strengthen the interim final rule on the grounds that the interim
regulations offer virtually no protection for right whales and would
probably not prevent future entanglements.
Response: NMFS acknowledges that some persons and groups are
disappointed in the regulations implemented by the interim final rule.
NMFS continues to believe that the approach taken by the ALWTRP has a
reasonable chance of achieving its difficult goals. The ALWTRP is not
just a set of regulations. It is a series of intertwined activities
that include gear research, outreach and education, disentanglement,
closed periods and gear restrictions. The Plan emphasizes cooperation
with the fishing industry, which is essential for progress on gear
development and is helpful for disentangling whales. Because there were
no known cases of serious entanglements of right whales in U.S. waters
during the first 6 months of the plan, because fishermen are developing
and testing new ways to rig their gear to avoid entanglements, and
because of the assistance of and the interest in disentanglement on the
part of the fishing community, NMFS believes that the Plan has already
reduced the risk of serious injury and mortality due to bycatch in U.S.
fishing gear.
The ALWTRP is not a static plan. If it is not achieving its goals
or if better ways to achieve the goals are identified, it can be
modified. The support and cooperation of the fishing communities will
be important in continuing to make progress on right whale
conservation.
Comment 5: The ALWTRP will do nothing to fulfill the obligations of
NMFS to reduce the take of northern right whales under section 118 of
the MMPA.
Response: NMFS disagrees. The ALWTRP balances cooperation and
regulation. NMFS believes the ALWTRP has a realistic chance of
achieving its goals.
Comment 6: NMFS cannot quantitatively measure the level of risk
reduction of various measures, and, therefore, it cannot assert that
the plan is expected to achieve the necessary take reductions within 6
months.
[[Page 7542]]
Response: NMFS agrees that it is impossible to quantify the risk
reduction of any of the measures in the ALWTRP. It acknowledged this
when it published the interim final rule. However, the same problem
besets all the measures seriously considered by NMFS or the TRT because
entanglements are so unpredictable and take place at such a low rate.
The TRT recognized this during its discussions. Even wide-scale
closures cannot be quantified as to the degree of risk reduction. The
impossibility of quantifying risk reduction should not force the
Government into choosing the only quantifiable approach to the
problem--total closure of all fixed gear fisheries where right whales
might occur.
Comment 7: There is no guarantee that the ALWTRP or the associated
interim final rule will result in the needed cooperation with the
fishing industry. That cooperation can only be achieved through an
intensive constituent outreach program.
Response: NMFS agrees. Constituent outreach is a key component of
the ALWTRP, even though the benefits are not quantifiable. Outreach
efforts have expanded greatly in the past year. Fishermen are reporting
entangled whales, and they are experimenting with various gear
modifications. Although more work may need to be done, progress is
being made.
Comment 8: NMFS must balance a cooperative approach with the
implementation of a take reduction plan that prevents entanglements
rather than merely relies on disentanglement as a take reduction
strategy.
Response: The ALWTRP contains specific measures to prevent
entanglements, such as closures of critical habitat to some gear types
and restrictions on ways that gear can be rigged. In addition to these
measures and to strengthening the disentanglement program, NMFS has a
third key component of the plan, namely research and development of
gear that will either lower the risk of entanglement or reduce the risk
that an entanglement will result in a serious injury.
Comment 9: A number of commenters criticized various aspects of the
ALWTRP because they were weaker than the consensus portions of the TRT
report, particularly in the mid-Atlantic anchored gillnet fisheries and
for the SB/JL area.
Response: The TRT report was not a consensus document. Although the
TRT reached consensus on parts of a plan, the understanding within the
team was that these parts were contingent on reaching agreement on a
complete set of recommendations. Because no overall consensus was
reached, NMFS is unable to assume that all members of the TRT still
support any particular part of the negotiations.
Comment 10: Several commenters criticized the ALWTRP because it was
weaker than proposals that the industry had submitted to NMFS for
various areas, including for Cape Cod Bay and the SB/JL area.
Response: Prior to the publication of the proposed ALWTRP, a group
of industry and state agencies in the Gulf of Maine formed an informal
Industry/State Agency Take Reduction Team (ISATRT) to advise NMFS on
bycatch reduction measures. After the comment period for the proposed
rule, it was no longer apparent that the industry supported the
recommendations made by its representatives on the ISATRT.
Comment 11: The ALWTRP is almost worse than doing nothing, as it
creates the appearance of meaningful action when, in fact, nothing has
been done to reduce risk.
Response: As explained earlier, NMFS believes that the ALWTRP has a
reasonable chance of reducing the risk of entanglement.
Comments Regarding Gear and Take Reduction Technology Lists
Comment 12: Several commenters liked the ``menu'' approach allowed
by the Take Reduction Technology Lists and believed this approach
allowed flexibility in adapting individual fishing operations to the
requirements of the ALWTRP.
Response: NMFS appreciates this support for the flexibility allowed
by the Take Reduction Technology Lists. Note, however, that many
comments were received that opposed the Take Reduction Technology
Lists.
Comment 13: Many commenters opposed the gear technology lists
because they are not a departure from current fishing practices that
have entangled whales. Therefore, the lists would not achieve the
required bycatch reductions.
Response: The gear technology lists were not intended by themselves
to meet the short-term goal of the ALWTRP, i.e., reducing right whale
entanglements to below PBR. The reason for implementing the gear
technology lists is to initiate a flexible process of gear modification
over the next 4 years. As progress is made in developing fishing gear
and practices that lower the risk of a serious entanglement beyond that
gained from using the options on the current lists, new options will be
added, and, if appropriate, less effective options may be deleted.
There may also be a small immediate risk reduction because some
fishermen not using any of these options would have to improve the way
they set their gear. The gear technology lists may be modified in the
future if new gear is developed and tested in field trials or if any of
the characteristics on the list are determined by NMFS to be
insufficient to reduce entanglement risks.
Comment 14: NMFS should revise the gear technology lists to require
the use of gear characteristics that are more risk averse than is
current practice.
Response: NMFS intends to continue funding research into gear
technologies that reduce entanglement in order to upgrade the lists.
Various possible weak links are being investigated. The operational
forces exerted on fixed gear are being measured and the theoretical and
actual forces exerted by whales are being studied to determine the best
breaking strengths to use. So far, however, no new technology has been
tested and determined to both lower the risk of a serious entanglement
and be operationally feasible. NMFS intends to seek the advice of the
TRT and the GAG, and to seek public comment, before changing the lists.
Comment 15: The gear technology lists undermine NMFS authority
because these are regulations that serve no functional purpose.
Response: NMFS disagrees that the regulations serve no functional
purpose and, therefore, does not agree with the conclusion that the
lists undermine the authority of NMFS. As explained above, NMFS expects
some fishermen to improve the way their gear is set, providing a small
decrease in the risk of entanglement. Also, by establishing the concept
of gear technology lists now and by working with fishermen and gear
technology experts to develop gear modifications that will further
reduce entanglement risk, more progress can be made in the future as we
strive to achieve the long-term goal of the Plan.
Comment 16: A number of the options included on the gear technology
lists have been proposed without adequate research to indicate that
they may reduce entanglements.
Response: Because the process (or processes) by which entanglements
occur is not known, it is difficult to conduct definitive research on
whether any particular option on the gear technology lists is
effective. The items on the gear technology lists were recommended by
the GAG, based on descriptions by members of the disentanglement team
of ways in which entanglements might occur. NMFS will
[[Page 7543]]
ask the GAG and the TRT to review the lists.
Comment 17: It would be useful to rank the options on the gear
technology lists in order of their anticipated benefit.
Response: NMFS agrees, but is unable to rank the options at this
time. It will refer this suggestion to the GAG and the TRT.
Comment 18: NMFS should postpone requiring compliance with the gear
technology lists in areas where the risk of entanglement is low (i.e.,
those areas where only one option from the Gear Technology lists is
required under the Plan).
Response: Entanglements have been reported from state and Federal
waters throughout the northeastern U.S. waters. Therefore, there is
value in requiring gear modifications in most waters. Part of the value
of requiring compliance with the gear technology lists in all affected
waters is to gain acceptance of the concept of a list of take reduction
technologies. As technology is improved, NMFS believes it will be
easier to make changes to the list than to get agreement to having the
lists themselves. Also, if all persons fishing in affected waters are
at least aware that they are subject to the lists, there may be more
people thinking creatively about how to reduce bycatch without
affecting the fishing characteristics of the gear.
Comment 19: Requiring only one option from the Gear Technology
lists in lower risk areas is not enough.
Response: There was a divergence of views on this subject (see
Comment 18). NMFS will refer this comment to the TRT and the GAG, which
will review the gear technology lists.
Comment 20: Several commenters stated that a lead line weighing 100
pounds per 300 feet (91.4 m) is not manufactured. Some urged that the
requirement be changed; others urged that it be dropped.
Response: Lead line with these characteristics is available, though
it is not in common usage. However, since the option of using this kind
of line is no longer on the gillnet gear technology list, the issue of
availability is moot.
Comment 21: The breaking strengths of weak links may need to be
adjusted for different fishing areas due to tide, current, and setting
protocols, but the link should be the weakest link possible that is
consistent with practical fishing gear handling and whale safety.
Response: NMFS agrees, but believes it needs more information
before establishing region-specific breaking strengths. NMFS is
collecting data on forces exerted on gear as well as by whales. This
information will be presented to the GAG and the TRT.
Comment 22: There was support for allowing sinking buoy lines to
have a section of floating line at the bottom to avoid snagging.
Response: This option is available to all fishing operations. The
purpose of allowing the section of floating line is to minimize the
risk of lost gear due to chafing on the ocean bottom.
Comment 23: The name ``Take Reduction Technology List'' is
misleading and should be changed.
Response: For now, NMFS prefers the formal name because it is
descriptive of its goal. However, ``gear technology list'' is already a
more common informal term of the option lists.
Comment 24: One commenter urged NMFS not to amend gear or marking
requirements without first obtaining the advice and consent of the GAG.
Response: NMFS intends to seek the advice of the GAG before
changing the gear marking requirements or the Take Reduction Technology
Lists. However, the consent of the GAG will not be a requirement of any
changes.
Comment 25: The procedure NMFS has set forth for evaluating whether
gear modifications may be allowed into closed areas is too vague.
Setting a standard of reducing the risk of entanglement to ``acceptable
levels'' is also too vague. A rigorous standard must be set.
Response: NMFS agrees that the standards are vague. Because the
degree of risk reduction required to achieve the goals of the MMPA is
not quantifiable, any standards are likely to be vague (see following
comment). The value of engaging both the GAG and the TRT in review of
any gear modifications is to ensure as much as possible that changes to
the gear technology lists are appropriate from a variety of viewpoints.
Comment 26: The option of allowing lobster or gillnet gear into the
closed areas should be exercised only if the gear reduces the risk of
serious injury or mortality to whales to levels approaching zero.
Response: NMFS agrees with the point of view reflected in this
suggestion, but notes that this standard is vague. The probability of
entanglement in any given piece of fishing gear is already extremely
low. Bycatch is a problem because right whales are so rare that even
this low probability could harm the population. The suggested standard
does not clarify (and perhaps cannot quantify) how much a gear
modification must reduce that very low risk to be ``levels approaching
zero.''
Comment 27: There were many comments making specific suggestions
for changes to the gear technology lists. Included in these suggestions
were (1) The 1100 lb (498.8 kg) maximum breaking strength for weak
links is too great and will neither reduce the risk of entanglement to
whales nor facilitate the whale breaking free from the gear; (2)
Floating line at the bottom of a buoy line should be no longer than 10
percent of the depth of the water column; (3) There should be sinking
ground lines between lobster traps year round in Cape Cod Bay, where
the bottom is primarily sand and is less likely to cause extensive
chafing or hinder the retrieval of lost gear as in the case of a rocky
bottom; (4) NMFS should require four options of the Take Reduction
Technology Lists in Cape Cod Bay, the Great South Channel and
Stellwagen Bank/Jeffreys Ledge, instead of requiring only two; (5) NMFS
should reduce the allowed diameter of line in critical habitat and the
SB/JL area to \5/16\ (0.79 cm); (6) NMFS should reduce the maximum
breaking strength of weak links allowed in Cape Cod Bay and Stellwagen
Bank/Jeffreys Ledge to 400 lb (181.4 kg); (7) NMFS should reduce the
maximum breaking strength of weak links allowed on Stellwagen Bank/
Jeffreys Ledge to 750 lb (340.1 kg); (8) NMFS should reduce the maximum
breaking strength of weak links allowed in the Great South Channel to
less than 1000 lb (453.5 kg); (9) NMFS should increase the maximum
breaking strength of weak links allowed in the Great South Channel area
to 1500 lb (680.3 kg); (10) In the Great South Channel, the floating
line allowed for the bottom ten fathoms of the buoy line should be up
to \1/2\ inch (1.27 cm) diameter because of the problem of chafing in
that region; (11) Lobster trawls should be required to use sinking
ground line or at least to put a weight on each ground line to reduce
the risk of entanglement in the ground line; (12) In Cape Cod Bay
critical habitat and in the SB/JL area, NMFS should require gillnets to
have (a) a floatline that is \5/16\ inch (0.79 cm) diameter
polypropylene when using net floats or \1/2\ inch (1.27 cm) diameter
polypropylene foam core for use in flounder nets; (b) weak links at or
near the surface buoy of a breaking strength less than or equal to 400
lb (181.4 kg); (c) Danforth-style anchors to anchor the net instead of
weights to increase the likelihood of the weak links parting; (d) nets
attached to a lead line weighing 100 lb (45.4 kg) or more per 300 feet
(91.4 m); (e) weak links between the net bridles on the float line; (f)
sinking line for buoy line not to exceed \5/16\ inch
[[Page 7544]]
(0.79 cm) diameter, except for the last 10 fathoms, which may be up to
\1/2\ inch (1.27 cm) polypropylene spliced in to prevent formation of a
knot and to create no more than 2 fathoms of vertical lift; and (g) 15
fathom bridle and groundlines to anchors, and (13) In the Great South
Channel critical habitat, NMFS should require gillnets to have: (a) a
floatline that is \5/16\ (0.79 cm) to \3/8\ inch (0.95 cm) diameter
polypropylene when using net floats or \1/2\ inch (1.27 cm) diameter
polypropylene foam core for use in flounder or monkfish nets; (b) weak
links at or near the surface buoy of a breaking strength less than or
equal to 1000 lb (453.5 kg); (c) Danforth-style anchors to anchor the
net instead of weights to increase the likelihood of the weak links
parting; (d) nets attached to a lead line weighing 100 lb (45.4 kg) or
more per 300 feet (91.4 m); (e) weak links between the net bridles on
the float line; (f) sinking line for buoy line not to exceed \5/16\
inch (0.79 cm) to \3/8\ inch (0.95 cm) diameter, except for the last 10
fathoms, which may be up to \1/2\ inch (1.27 cm) polypropylene spliced
in to prevent formation of a knot and to create no more than 2 fathoms
of vertical lift; and (g) 15 fathom bridle and groundlines to anchors.
Response: These suggestions are useful. Some of them are
conflicting; others may not work in all areas and, if implemented,
could increase the amount of lost gear. NMFS intends to refer all these
comments to the GAG and the TRT for their review.
Comments Regarding Gear Research
Comment 28: NMFS must make a strong financial commitment to an
aggressive gear research and development program immediately.
Response: NMFS agrees and intends to continue to fund gear research
for the foreseeable future. In the 1998 fiscal year, NMFS allocated
$130,000 for gear research. Additional funds were dedicated to
outreach. NMFS expects to allocate the same or more funds in 1999, 2000
and 2001.
Comment 29: The ALWTRP provides little incentive for the fishing
industry to cooperate in gear research. NMFS must state clearly the
implications of failing to find a technological solution to the
entanglement problem.
Response: NMFS acknowledges the concern regarding the commitment of
the fishing industry to cooperate in gear research. In actuality, the
cooperation from the industry has been high, both in terms of ideas and
testing. NMFS believes that the outreach efforts have informed the
industry of the difficulties of reaching the zero mortality rate level,
especially for right whales, and that the industry is working actively
to find a technological solution to the problem.
Comment 30: NMFS should conduct research into the development of a
weak buoy line, which might be more likely to reduce whale
entanglements than weak links alone.
Response: NMFS agrees. NMFS is now in the process of awarding
contracts to develop this kind of system.
Comment 31: Research should be done with baleen from dead whales to
see how rope passes through it.
Response: NMFS agrees and has tested how rope passes through the
baleen from several species this year. The results were presented to
the GAG this fall.
Comment 32: NMFS should continue its research to determine whether
a weaker breaking strength could be used in Cape Cod Bay.
Response: This research is now being undertaken; preliminary
results were presented to the GAG this fall.
Comment 33: NMFS should not conduct research on weak links with
1100 lb (498.8 kg) breaking strengths, as this represents no risk
reduction.
Response: NMFS agrees. It is not trying to develop a better link
that breaks at 1100 lb (498.8 kg). Instead, it is trying to develop
weaker links and is seeking information about what breaking strengths
are appropriate in each region.
Comment 34: It would be useful to review photographs of entangled
whales to try to determine how many of them have just line wrapped
around the body (in which case a weak link at the buoy may not be
helpful).
Response: NMFS agrees that this would be useful information. It is
conducting detailed investigations of all entanglements reported in
1998.
Comment 35: Research should be done on how to put weak links at the
bottom of fishing gear.
Response: NMFS agrees that this could be an important breakthrough,
although it will take some creativity to design a weak bottom link that
will still allow gear to be hauled. Research is now being conducted to
develop a workable weak link to be used between the gear and the buoy
line.
Comment 36: There should be research on ways to put weak links into
offshore lobster gear because they are so much heavier than inshore
gear.
Response: Offshore lobster gear tends to be substantially heavier
than inshore gear. This may make it more difficult for a whale to break
free if it becomes entangled. This heavier gear also makes the
development of weak links more difficult. However, NMFS agrees that
solving the problem of putting weak links into offshore lobster gear
could be an important step forward in bycatch reduction and has issued
a Request for Proposals to address this concern.
Comment 37: Research should be done on the configuration of ground
lines between lobster traps; an upward bow of line between traps
represents an entanglement risk.
Response: This is being done through in situ observations of both
lobster and gillnet configurations while the gear is in the water.
Comments Regarding Gear Marking
Comment 38: Many commenters were opposed to the gear marking scheme
as outlined in the interim final rule. Some commenters believed that
the information that the gear marking would provide would not be
specific enough to determine where entanglements were occurring. Others
thought information about location might be misleading, since marked
gear could be dragged to another location before an entanglement
occurred. Some questioned whether the markings would remain detectable.
Several believed that whatever benefit gear marking might provide would
not outweigh the burden to the fishermen. Several commenters suggested
that gear marking should not be required in exempted waters.
Response: The purpose of requiring gear marking is to obtain better
information about where entanglements are taking place. NMFS agrees,
therefore, that the marking scheme in the interim final rule was too
general and would not have provided useful information about the
specific region where an entanglement took place. However, a color-
coded marking scheme that is specific for every region and gear type of
interest would be extremely complicated. Given the reservations about
gear marking, NMFS has decided that it would be best to have a
relatively small-scale pilot program to determine whether the gear
marking process works and if it provides useful information. Therefore,
gear marking will only be required in critical habitats, in the
southeast U.S. observer area, and in the SB/JL area. This scheme should
provide specific information about where gear that entangles a whale
was first set, provided the entanglements take place in one of these
regions (which are the areas of greatest concern). It will also allow
NMFS to determine whether gear marking works on an operational basis
before requiring wide-scale marking. NMFS acknowledges that this gear
marking scheme does not surmount the problem of gear that is dragged by
some other force from one region to another and then entangles a whale.
However,
[[Page 7545]]
implementation of gear marking in this pilot program may help to
evaluate how big a problem this might be.
Comment 39: Gear marking is an important data gathering device that
may assist in designing future bycatch reduction measures to achieve
the zero mortality rate goal.
Response: NMFS believes that gear marking has the potential of
providing important data on where entanglements occur. This information
could contribute to future measures to reduce entanglement risk. There
are questions about gear marking, both from an operational standpoint
and with regard to the interpretation of the data it might provide.
NMFS believes that the relatively restricted gear marking scheme in the
final rule will help resolve those questions.
Comment 40: Gear marking does not reduce risk; it simply allows
NMFS the possibility of knowing where entanglement occurred.
Response: NMFS agrees. However, the purpose of gear marking is
exactly to know more about where an entanglement occurs in order to
focus future take reduction measures on the places where the risk is
greatest.
Comment 41: NMFS should consult with state governments, the TRT,
and the GAG with a view to improving the gear marking system by 1999.
Response: NMFS will ask the GAG and the TRT to keep the gear
marking scheme in this final rule under review. If major improvements
are recommended, NMFS may modify the gear marking scheme again.
However, NMFS expects to implement the current scheme for at least two
years in order to get a better picture of its value. The states will be
involved in the GAG and the TRT and their experience and concerns will
be taken into account during the discussions in these groups.
Comment 42: Gear marking should not apply in exempted areas.
Response: NMFS no longer requires gear marking in exempted areas.
Area-specific Comments
Comment 43: The closures in critical habitats are not likely to
result in significant risk reduction, even though they occur at times
when right whales are most likely to be present, because the closures
take place at times when fishing effort is low.
Response: NMFS believes the current closures are sufficient to
achieve the short-term goal of the ALWTRP by providing protection in
areas and times when right whales congregate. If it becomes apparent
that the long-term goal cannot be met through gear modifications,
further closures or other actions may be necessary.
Comment 44: The Cape Cod Bay critical habitat area should be closed
to lobster gear as well as to sink gillnet gear from January 1 to May
15.
Response: NMFS believes that the restrictions imposed on lobster
gear in Cape Cod Bay are sufficient to protect large whales from
entanglement. If there is evidence that this belief is unfounded, NMFS
will consider further restrictions in that area, including prohibiting
lobster fishing from January 1 to May 15. The Commonwealth of
Massachusetts is closely monitoring lobster fishing effort in Cape Cod
Bay during the winter, so the effectiveness of the regulations in Cape
Cod Bay should be determinable. The gear marking requirements for
lobster gear in that area may also help to monitor the effectiveness of
the regulations.
Comment 45: The decision to exempt Long Island Sound is
appropriate, since no right whales have been seen there in 20 years.
Response: NMFS agrees.
Comment 46: The closure of the Great South Channel critical habitat
to lobster gear from April 1 to June 30 is appropriate.
Response: NMFS agrees.
Comment 47: It is irresponsible to allow gillnetting in the
``sliver area'' of the Great South Channel because right whales are
known to use the area during that time period.
Response: NMFS agrees that right whales and gillnet gear may occur
in this area at the same time, as seen in the 1998 aerial surveys. It
will consider closing this area in the future if the MMPA goals are not
being met and will urge the TRT to discuss this option as a way to
continue progress toward the long-term goal of the Plan. However, as
explained in the interim final rule, NMFS understands that the
gillnetters in the Sliver Area generally tend their gear, and hence are
likely to see and report entangled whales quickly. One right whale that
had been entangled elsewhere was disentangled based on a call from a
gillnetter in the vicinity of the Sliver Area in 1997.
Comment 48: Gillnetting should be allowed in the Great South
Channel once gear has been modified to prevent the potential of
entanglement.
Response: NMFS agrees in concept but notes that this is another
``vague standard.'' It will be difficult to demonstrate that a gear
modification will prevent entanglements, given our limited
understanding of how entanglements occur. Because there will be
differences in opinions of what constitutes an adequate demonstration
of risk reduction, NMFS will seek the advice of the TRT and the GAG on
whether to allow modified gear into a closed area.
Comment 49: The gillnet closure in the Great South Channel should
only extend from April 1 to May 31 because the right whales are
generally in the ``Area 1'' groundfish closure (where gear is
prohibited year round) by June.
Response: NMFS is not aware of any analysis to support this
assertion. Therefore, it will not change the timing of the closure in
the Great South Channel in this final rule, but it will ask the TRT for
advice on this suggestion.
Comment 50: The offshore lobster fishery represents a significant
risk to right whales because the gear is heavier and because the
chances of seeing an entangled whale and the ability to disentangle it
are lower than the chances for inshore lobster gear. Therefore, more
stringent measures should be applied to the offshore lobster gear.
Response: NMFS agrees that the gear used in the offshore lobster
fishery is generally heavier than inshore gear. Furthermore, offshore
lobster gear is known to entangle right whales. However, it is not
clear that offshore lobster gear poses a greater threat to right whales
than inshore gear. Lobster gear is sparse offshore, and right whales do
not appear to be resident in any offshore area for predictable times of
the year. NMFS notes that the heavier nature of the offshore gear will
make it more difficult to devise a technological solution to the
entanglement problems that may occur there. However, NMFS is funding
gear research to find a solution to this problem.
Comment 51: There was support for the ALWTRP closure of the Cape
Cod Bay critical habitat to gillnet gear for the period of 1 January to
15 May.
Response: NMFS continues to believe that a closure in this area for
this duration is prudent. It notes, however, that there was support for
allowing more flexibility in opening the area early if right whales
leave before May 15. (See the following comment.)
Comment 52: The regulations for Cape Cod Bay critical habitat allow
NMFS to lift restrictions if right whales have been determined to have
left the Bay early. There should be a similar provision that allows
NMFS to keep the area closed if right whales have not yet departed.
Response: Paragraph (g)(2)(v) of Sec. 229.32 would allow NMFS to
publish in the Federal Register criteria either to open an area if
right whales had departed earlier than expected or to keep the area
closed if right whales are
[[Page 7546]]
remaining in the area longer than expected.
Comment 53: The western boundary of the SB/JL area extends too far
toward the coast. There have been whale sightings there, but no
incidents of serious entanglements.
Response: Because there have been whale sightings in this area and
because the actual locations of most entanglements are unknown, NMFS
considers it prudent to keep the boundaries of the SB/JL area as in the
interim final rule. It will seek the advice of the TRT as to whether
the boundaries should be changed.
Comment 54: There is no need for gear modifications or gear marking
in New Hampshire state waters.
Response: This final rule does not require gear marking in New
Hampshire state waters. NMFS believes that the proximity to the
relatively high-risk SB/JL restricted area, where several species of
whales are commonly found, justifies requiring the use of at least one
option from the Take Reduction Technology Lists.
Comment 55: There was support for the driftnet gear fishing
practices requirements in mid-Atlantic waters.
Response: NMFS appreciates this statement of support. Note that the
full rationale for this provision was presented in the Federal Register
document containing the interim final rule.
Comment 56: One commenter supported the requirement that driftnets
in the mid-Atlantic be tended, even though the commenter did not
believe that it reduced risk. The commenter believed that tended nets
were not less likely to entangle whales than were untended nets and
that the only advantage would be the immediate knowledge that an
entanglement occurred. Since the nearest disentanglement team was in
New England, there would be no benefit to this knowledge.
Response: NMFS believes detecting an entanglement immediately
improves the chances of a successful disentanglement. As the commenter
noted, a whale caught in a tended driftnet would be noticed quickly.
The exact position of that animal would then be known, and the
fisherman could assist in keeping track of that animal until the
disentanglement team could get to the site. This should increase the
chances of disentangling the whale.
NMFS is expanding the disentanglement network to cover the mid-
Atlantic area. The first workshop to train fishermen in the mid-
Atlantic area to assist in responding to entanglements was held in
early December 1998, and additional training sessions are planned for
the future. NMFS hopes to avoid a similar situation as that which
occurred in March 1998 when a humpback whale died in gillnet gear
before a disentanglement team could reach the site.
Comment 57: There was support for the boundaries of the southeast
U.S. restricted area and the southeast U.S. observer area and for the
prohibition on driftnet use in the southeast U.S. restricted area
during the times when right whales are likely to be present.
Response: NMFS appreciates the statement of support. The rationale
for the boundaries was explained in the interim final rule.
Comment 58: The best dates for the closure of the southeast U.S.
restricted area would be from November 1 through April 1.
Response: The dates of the southeast U.S. closure were selected by
the TRT based on historical sighting data. Only two whales have been
sighted in this area prior to November 15--one in 1986 and one in 1988.
Therefore, NMFS believes the November 15 starting date for this closure
is appropriate.
Comment 59: There was support for the strikenet provisions in the
southeast U.S. restricted area.
Response: NMFS appreciates the statement of support. The rationale
for the strikenet provisions was explained in the interim final rule.
Comment 60: There is no evidence that strikenetting has posed a
risk to right whales. Therefore, restrictions on strikenetting offer
little reduction in risk to right whales.
Response: As explained in the interim final rule, the southeast
U.S. drift gillnet fishery for sharks is believed to be responsible for
the entanglement of at least one right whale. Although strikenetting
may pose less of a problem than other forms of gillnetting (and
therefore is not prohibited during the closed season), the ALWTRP
imposes some regulations to further reduce the potential for
entanglement. Therefore, NMFS believes it is appropriate to take
precautionary steps to reduce the risk of future entanglements.
Comment 61: NMFS should require that observers be on board vessels
operating with strike nets in the southeast U.S. restricted area during
the closed period.
Response: NMFS will attempt to place an observer on every vessel
fishing for sharks with strikenets in the southeast U.S. restricted
area during the closed period. It does not seem appropriate, however,
to prohibit a person to fish in cases when NMFS fails to provide an
observer for that trip.
Comment 62: Gear set adjacent to critical habitat should be subject
to the same restrictions as that placed on gear fished within the
critical habitat because animals do not respect lines drawn on maps.
Response: The boundaries of right whale critical habitats were
selected because they enclosed about 85 percent of the historical right
whale sightings. While it is true that right whales must pass through
adjacent waters to reach any critical habitat, the chances of finding a
right whale in an area adjacent to a critical habitat are substantially
less than of finding a right whale in the critical habitat. Therefore,
less restrictive measures are appropriate.
Because the right whale sighting record in the southeast U.S. area
is relatively new, the critical habitat boundaries there may possibly
be less appropriate than those in the northeast. As sighting data are
collected, NMFS may consider revising the southeast U.S. critical
habitat boundaries. However, gillnet restrictions in this area have
been expanded north, south, and east beyond the critical habitat
boundaries, encompassing all known sightings of right whales in the
vicinity.
Comments Regarding Disentanglement Efforts
Comment 63: NMFS is placing too much faith in disentanglement as a
key component of the ALWTRP. No serious wildlife management plan relies
on first aid to injured animals in preference to preventing death and
injury in the first place.
Response: NMFS agrees that preventing entanglement is preferable to
disentangling whales if the cost and effectiveness of each method are
equivalent. The ALWTRP relies on a mixture of measures to lower the
risk of entanglement, such as closures of critical habitats and gear
restrictions, and on disentanglements when whales do encounter gear. In
addition, the ALWTRP encompasses research on cost-effective gear
technologies that will further reduce entanglement risk and on outreach
and education to show fishermen ways to set their gear that could
reduce risk, to get ideas from fishermen as to fruitful avenues for
gear research, and to encourage fishermen to assist in
disentanglements.
Comment 64: The ALWTRP does not have a specific proposal to
establish, train, and equip regional disentanglement response teams.
Response: NMFS is in the process of expanding the disentanglement
teams. A permanent coordinator has been established in Maine, and
efforts to set
[[Page 7547]]
up teams in the southeast and mid-Atlantic are underway.
Comment 65: Simply calling in an entanglement does not necessarily
result in an animal being disentangled.
Response: NMFS agrees. However, reporting an entanglement is a
necessary first step to removing the gear from an animal. The fishing
industry can provide a wide-ranging sighting network in regions where
other vessels rarely go. In addition, fishermen who call in an
entanglement are sometimes able to keep track of the animal until the
disentanglement team arrives and to assist in removing the gear. All
these efforts can help improve the chances of removing the gear without
serious injury to the whale.
Comment 66: Improving the disentanglement effort is more
appropriate for achieving the long-term goal than the short-term goal.
Response: Improving the disentanglement effort is appropriate to
achieve both the short-term and the long-term goal of the ALWTRP. NMFS
intends to continue to improve the disentanglement effort to help
achieve the long-term goal of the Plan.
Comment 67: Right whales are notoriously difficult to disentangle
because they tend to thrash wildly, whereas other species may become
more docile during disentanglements. Therefore, disentanglement should
not be viewed as a long-term solution to the bycatch problem.
Response: NMFS acknowledges the difficulties in disentangling right
whales. Although it intends to continue to improve the capabilities of
the disentanglement network, it is also seeking to develop gear
technologies that will reduce entanglements to help achieve the long-
term goal of the Plan. NMFS will continue to support the
disentanglement effort until an effective solution involving fishing
gear or practices is found.
Comment 68: Because no vessel is allowed within 500 yd (457 m) of
right whales, detecting entangled whales will be difficult, making
reliance on disentanglement even more problematic.
Response: NMFS acknowledges the difficulties in detecting entangled
right whales. Nevertheless, if an entangled right whale is seen, an
effort should be made to remove the gear. The MMPA regulations
specifically provide an exception for a vessel to approach a right
whale closer than 500 yd (457 m) to investigate an entanglement,
provided the vessel is authorized by NMFS to do so.
Comments Regarding Contingency Measures
Comment 69: Several commenters asked for clarification of the
process by which NMFS could keep an area closed if right whales remain
longer than expected or could open an area earlier than expected if the
whales leave early.
Response: A timely process invoking the regulations of this final
rule is not yet available. Because the criteria for opening an area
early or for keeping an area closed are likely to both be
controversial, NMFS intends to seek a recommendation from the TRT as to
an acceptable process. Note, however, that section 118(g) of the MMPA
gives NMFS authority to implement emergency closures to protect marine
mammals if certain criteria are met. Likewise, the ESA allows emergency
closures to protect right whales, humpback whales, and fin whales.
These authorities could be used to keep critical habitats closed to
fishing gear if right whales remain longer than expected (provided
relevant criteria are met), although they cannot be used to open an
area if right whales leave earlier than expected.
Comment 70: Several commenters expressed concern about the
possibility that the SB/JL area might be closed to gillnetting if
further take reduction measures are necessary. They asked for
clarification on the process of making such a decision.
Response: Except when there is a need to implement emergency
measures under the MMPA or the ESA as explained in response to comment
69, a decision to close the SB/JL area to gillnetting for the purposes
of whale conservation would be made by NMFS after consultation with the
TRT and after public comment on a proposed rule.
Comment 71: There was support for the provision to close critical
habitat to a gear type if its allowance to be set in that area during a
closed period results in a serious injury or mortality. However, if
NMFS must take this action, it should consult with the TRT.
Response: NMFS intends to consult with the TRT if it is considering
taking this action, unless an emergency situation exists.
Comment 72: One group felt that the provision that would require
closure of critical habitat if gear that is allowed to be set there
entangles a whale should not be mandatory. There are many factors in
dealing with people, animals and the ocean, and some flexibility is
needed. If fishermen believe that reporting an entanglement will lead
to the closure of the fishery in that area, there will be less
incentive to cooperate.
Response: NMFS is aware that regulations cannot account for every
contingency, and that the possibility of closure could be a
disincentive to reporting entangled whales. However, there is some risk
in allowing gear to be set in areas when right whales are expected to
be in the area. Although NMFS believes this risk is justifiable, it
believes that it should have a clear contingency plan in case this risk
is underestimated. It will, however, ask the TRT to provide advice on
this matter.
Comment 73: Several commenters expressed disappointment that NMFS
had removed specific criteria for extending gear requirements or
closing an area in the event of anomalous right whales distributions.
Some felt that the final rule must specify criteria for mandatory
institution of closures in the case of anomalous right whale
distribution. Others felt that NMFS should, at a minimum, implement an
early warning mechanism to notify fishermen if right whales are in an
area.
Response: The criteria contained in the proposed rule for closing
an area in the event of anomalous right whale distributions were
unilaterally developed by NMFS. During the comment period, a number of
difficulties and ambiguities in the criteria were pointed out.
Therefore, NMFS did not include the criteria in the interim final rule
or in this final rule. It will, however, ask the TRT to develop
appropriate ways of dealing with this situation. Note that NMFS has
established a right whale alert program to inform marine users of the
presence of right whales in an area.
Comments Regarding Constituent Outreach
Comment 74: Many commenters urged NMFS to continue and improve its
outreach efforts, especially by going to where the fishermen are
gathered, such as on the docks and at their forums and association
meetings, rather than require industry to attend meetings convened by
NMFS.
Response: NMFS intends to continue its outreach efforts, which are
a key component of the ALWTRP.
Comments Regarding Process and Relationships
Comment 75: NMFS should clarify the roles of the TRT and the GAG.
Response: Each group serves a different function. The TRT is
composed of persons representing all stakeholders and having a wide
range of expertise on fishing practices and on scientific, technical,
and policy matters. NMFS intends to use the TRT to advise
[[Page 7548]]
it on general strategies for reducing serious injuries and mortalities
of large whales due to entanglements and for monitoring the progress of
the ALWTRP toward its goals. The GAG is a technical body composed of
persons with first-hand experience with fishing gear or
disentanglements. Its function is specifically to provide technical
advice on matters pertaining to fishing gear.
Comment 76: Several commenters supported the creation of a GAG and
urged that it be continued.
Response: NMFS intends to continue to seek advice from the GAG on
matters pertaining to development and use of technology that can reduce
the risk of entangling large whales. NMFS convened a second meeting of
the GAG in October 1998 and plans to convene the group at least once in
1999.
Comment 77: NMFS usurped the authority of the TRT by creating a
competing body in the GAG. There was no representation from the
conservation community in that Group.
Response: The TRT and the GAG are both advisory bodies to NMFS,
and, as such, neither has authority to make decisions. One member of
the conservation community with expertise in gear development was asked
to participate on the GAG but was unable to do so. NMFS intends to
continue to seek participation on the GAG from the conservation
community, subject to the requirement that the participant have first-
hand experience with fishing gear.
Comment 78: NMFS should require that recommendations of the GAG be
reviewed by the TRT.
Response: To the extent that timing allows, NMFS will ask the TRT
to review the recommendations of the GAG. In this regard, it will try
to convene meetings of the GAG prior to meetings of the TRT in order
that the work of the former can be reviewed by the latter.
Comment 79: Several commenters questioned the value of seeking the
advice of the TRT on matters regarding the Take Reduction Technology
Lists, since many of the TRT members are not fishermen or gear
specialists. The GAG should have the lead responsibility for developing
and recommending gear modifications.
Response: NMFS believes the GAG should have a leading role in
developing and recommending gear modifications. However, the GAG need
not be the only source of new ideas for gear modifications; the TRT or
any person may make recommendations to NMFS about gear research. NMFS
notes that keeping the TRT informed of the activities of the GAG will
be essential for the TRT to fulfill its role of monitoring the progress
of the ALWTRP.
Comment 80: All gear marking and modification proposals should be
approved by the GAG.
Response: NMFS intends to consult with the GAG on matters
pertaining to gear technology. However, the GAG does not have authority
to approve gear or gear marking proposals.
Comment 81: The commitment to improving the involvement of the
fishing industry in whale bycatch reduction is laudable but of
questionable concrete benefit, especially if it results in
recommendations to continue current fishing practice.
Response: NMFS believes that involving the fishing industry in
whale bycatch reduction is the only practical way to achieve the goals
of the ALWTRP. The fishing community has much to offer in the form of
ideas for better gear and fishing techniques and in cooperation with
disentanglements. NMFS recognizes that there are no guarantees that the
Plan will reach its goals and that the success of the Plan will only be
determined in retrospect, but it believes that the cooperation of the
fishing community is essential to whatever actions are taken to reduce
bycatch. Current research efforts are aimed at developing fishing
practices and gear to protect whales that are feasible and, in some
cases, can improve either fishing effectiveness or cost effectiveness.
Comment 82: NMFS should change its procedures for making changes to
the regulations affecting the Cape Cod Bay critical habitat so as to
keep in line with the regulations of the Commonwealth of Massachusetts.
Response: The regulations in this final rule are intended to be
identical to the current regulations of the Commonwealth of
Massachusetts regarding fishing in Cape Cod Bay critical habitat,
except that NMFS cannot implement the Commonwealth's provisions to open
the area early without going through a more formal rule making process.
Comment 83: NMFS and the New England Fishery Management Council
should discuss the procedure for reviewing and testing gillnet gear
modifications discussed in Framework 23 to the Northeast Multispecies
Fishery Management Plan.
Response: NMFS agrees and will seek such a discussion.
Comments Regarding Exempted Waters
Comment 84: Several commenters felt that the boundary lines for
exempted waters in the Gulf of Maine were confusing, especially as most
coastal lobstermen in Maine set their gear on both sides of the
exemption line. Some felt that NMFS should exempt all Maine state
waters from the ALWTRP.
Response: Because right whales are known to move through Maine
state waters, NMFS does not believe it would be prudent to exempt all
state waters from the ALWTRP. Instead, to avoid the confusion caused by
the exemption lines in the interim final rule, NMFS will exempt only
the area designated in the proposed rule, i.e., waters landward of the
first bridge. All other waters in the Gulf of Maine (including New
Hampshire and Massachusetts State waters) are subject to the
regulations in this final rule. NMFS notes that the gear marking
requirement in the interim final rule no longer applies to Maine or New
Hampshire State waters, and much of Massachusetts State waters is also
exempt from gear marking.
Comment 85: The State of Rhode Island believed that the Sakonnet
River and some coastal ponds were inadvertently omitted from the list
of exempted areas.
Response: NMFS agrees. NMFS is not aware of any right whale
sightings in these areas and, therefore, exempts them from the ALWTRP
in this final rule.
Comment 86: One commenter believed that there was no justification
for requiring any gear requirements in Rhode Island State waters, since
right whale sightings are so rare there.
Response: Right whales occur in Rhode Island State waters from time
to time, and therefore, the regulations in this final rule will apply
to Rhode Island State waters (with limited exceptions). In 1998, one
right whale was seen within 50 yards (45.7 m) of Watch Hill, RI, and 23
right whales were seen in one day east of Block Island off the mouth of
Narragansett Bay.
Comments Regarding Other Aspects of the ALWTRP
Comment 87: The definition of ``lobster trap'' is too broad and
could be construed to include black sea bass traps and even trawl gear.
Response: The definition in this final rule has been changed to
clarify that it is intended to restrict only trap or pot-like gear,
including black sea bass traps and scup pots, because they are so
similar to lobster traps in the way they are set that it seems likely
that large whales would have the same entanglement problems with this
kind of gear.
Comment 88: Several persons felt that the prohibition on wet
storage is unenforceable. At least one person believed that NMFS should
require that gear that is not being actively fished be
[[Page 7549]]
removed from the water. While this requirement may be difficult to
enforce, it has a greater potential for reducing entanglement risk to
whales than simply requiring that gear be hauled at least every 30
days.
Response: NMFS recognizes that the prohibition on wet storage is
difficult to enforce. It intends to seek the advice of the TRT on
better ways to accomplish the purpose of this provision, which is to
minimize the risk of entanglement in gear that is not actively being
fished.
Comment 89: One commenter asked for clarification of whether the
30-day ``inspection'' requirement meant that gear had to be hauled back
to land every 30 days to be inspected.
Response: Gear must be hauled at sea by its owner or designee at
least once every 30 days. It does not need to be brought back to land
every 30 days.
Comment 90: The prohibition on ``wet storage'' offers no risk
reduction, because it only requires that a fisherman haul his gear once
every 30 days. The gear does not need to be brought to land and can be
left unbaited in the water.
Response: The intent of this provision was to reduce the practice
of ``wet storage'' of inactive gear. The requirement that gear be
hauled at least once every 30 days may not be the best way to achieve
this. NMFS will ask the TRT to develop a better system for reducing
entanglements in gear that is not being actively fished.
Comment 91: NMFS was asked to clarify the requirement that gear be
set in such a way as to prevent line from floating at the surface at
any time. One commenter pointed out that there will be line floating at
the surface at some time during all normal lobster or gillnet fishing
operations.
Response: The intent of this provision is that there should be no
line floating at the surface when gear is not being hauled. NMFS
understands that when gear is being set or hauled there will be time
when some line floats at the surface. This is acceptable.
Comment 92: The prohibition on floating line at the surface will
not result in any meaningful risk reduction, as current practice
results in line that does not usually float at the surface.
Response: Not all fishermen set their gear so that there is no line
floating at the surface, although doing so is considered to be the
current best fishing practice. NMFS believes that this requirement will
reduce the risk of entanglement, although the degree of risk reduction
cannot be quantified.
Comment 93: There was support for the requirement that gear be set
with no floating line at the surface, even though it might not result
in any meaningful risk reduction.
Response: See response to Comment 92.
Comment 94: NMFS should develop an Early Warning System to alert
fishermen to the presence of right whales in the high risk areas.
Response: In 1997, NMFS established a right whale alert system
operating in and around Cape Cod Bay and Great South Channel critical
habitats that informs any interested party of all reliable reports it
receives of right whale sightings in the northeast. A similar program
has been operating in the southeast U.S. for a number of years. Aerial
surveys are flown every day that weather permits during the times when
critical habitats are closed to fishing gear. All information is
disseminated to a fax network, is available through a ``fax on demand''
system, and is posted on several web sites on the internet. The primary
purpose of this alert system is to lower the risk of ship strikes, but
the fishing community can avail itself of the information as well.
NMFS will ask the TRT to review the adequacy of this system.
Comment 95: NMFS must make a substantial financial commitment to
improve monitoring the movements of large whales, as well as studying
changes in the distribution of fixed gear.
Response: NMFS spent $1,000,000 in FY98 on right whale research and
management along the U.S. east coast. NMFS expects the financial
commitment to remain the same or to increase in FY99.
Comments on Other Matters
Comment 96: Several commenters expressed concern about the effects
of ship strikes on the right whale population.
Response: NMFS is also concerned about the effects of ship strikes
on right whales, although it cannot address these concerns under this
Take Reduction Plan, which is limited under the MMPA to addressing
interactions with commercial fishing. Several steps are being taken to
address the ship strike problem in other ways. For example, the U.S.
Government proposed and the International Maritime Organization (IMO)
agreed that ships entering the Great South Channel call the Coast
Guard, which can alert the ship when right whales are in the channel
and can inform the ship of the general dangers of ships to right
whales. The IMO approved this proposal in December, 1998.
Implementation is scheduled to begin by July, 1999.
NMFS conducted aerial surveys to study the distribution of whales
and ships during 1998. During these surveys, ships in the vicinity of
right whales are contacted and informed of the importance of avoiding
the whales. In addition, the right whale information in the Coast
Pilots is being updated. Revisions to Coast Pilots 1 and 2 were
published in May and June, 1998 (respectively); revisions to Coast
Pilot 3 is scheduled to be published October, 1999 and to Coast Pilot 4
in June, 1999. Nearly all relevant navigation charts have been revised
and updated with information on the 500-yard (457 m) approach rule and
right whale critical habitat.
NMFS is also trying to develop cooperative agreements with
individual shipping companies, both U.S. and foreign flagged, that
operate routinely through right whale habitats.
Comment 97: Two commenters noted that NMFS had not commented on an
analysis prepared by the State of Maine of the economic impact of the
proposed rule.
Response: The analysis prepared by the State of Maine pertained to
the proposed rule. The interim final rule was so different from the
proposed rule that it was believed that a detailed response to the
State's analysis was not necessary in the interim final rule. NMFS
agreed in concept with the State of Maine's conclusion that the
proposed regulations would have imposed a substantial economic impact
on the Maine lobster fishery, although it disagreed with some of the
specific assertions of the authors of the paper. NMFS has forwarded
more detailed comments on the State of Maine's analysis to the State.
Comment 98: A suggestion was made that NMFS monitor the mid-water
trawl fishery to determine its potential for takes of marine mammals.
Response: NMFS has placed some observers on mid-water trawl
vessels, but it does not yet have information suggesting that this is
an urgent or high priority situation for large whales. No large whales
have been seen by observers to be entangled by this fishery.
Comment 99: One commenter noted that NMFS had said that it would
continue to assess the appropriateness of the Category III fishery
classification for the tuna hand line/hook-and-line fishery, groundfish
longline/hook-and-line fishery, surface gillnet fishery for small
pelagic fishes, trap fisheries other than lobster trap, finfish staked
trap fisheries, and weir/stop seine fisheries. This commenter urged
NMFS to change the classification of these fisheries to Category II in
order to more effectively monitor them. The commenter also
[[Page 7550]]
recommended that NMFS require these fisheries to mark their gear.
Response: NMFS reviews the list of fisheries every year and seeks
comments and information on the list through a Federal Register
notification. So far, there has not been enough information submitted
to justify classifying the preceding fisheries in Category II. NMFS
intends to see if the gear marking scheme in this final rule provides
useful information before broadening the scope of the gear marking
requirement.
Comment 100: One commenter believed that NMFS could not issue an
incidental take statement for right, humpback and fin whales, and felt,
therefore, that NMFS does not have the authority to exempt fishermen
from liability for illegal takes of listed species under the ESA. This
commenter urged NMFS to inform fishermen that they should report
entangled whales and that such a report would not result in prosecution
if the whale is swimming with the entangled gear.
Response: NMFS agrees that it cannot exempt fishermen from
liability for illegal takes of species listed under the ESA. It does,
however, have discretion as to which cases it will prosecute. Unless
there is evidence of willful harm to the whale, it is unlikely that
NMFS would prosecute anyone calling in an entangled whale.
Comment 101: One commenter supported NMFS's plan to notify all
Atlantic fisheries permit holders of the importance of bringing gear
back to shore to be discarded.
Response: This has been done in the Northeast Region, where this
problem is of greatest concern.
Comment 102: One commenter supported NMFS's decision to postpone
further consideration of market incentives as a way to reduce bycatch.
Response: NMFS will refer the matter of market incentives to the
TRT for further discussion.
Comment 103: NMFS should conduct a Regulatory Flexibility Analysis
(RFA) of the ALWTRP regulations.
Response: NMFS conducted a regulatory impact review of the
provisions of the interim final rule, describing the impact it was
expected to have on small entities. Based on that review, NMFS
certified that a Final Regulatory Flexibility Analysis (FRFA) was not
necessary. The thresholds for Regulatory Flexibility Analysis
determinations are: 5 percent loss of revenue for 20 percent of the
participants; 5 percent increase in operations costs for 20 percent of
the participants; and two percent of participants cease operations.
None of these thresholds were met by the interim final rule.
Although no information was provided that called into question the
conclusions of the Regulatory Impact Review for the interim final rule,
NMFS conducted a FRFA for this rule. The FRFA concluded that the final
rule of the ALWTRP would not constitute a significant regulatory
action. In this final rule, the overall costs of compliance for the
affected fisheries are expected to be less than for the interim final
rule, because the gear marking requirement will apply to substantially
fewer vessels.
The regulations in this final rule were also evaluated for purposes
of E.O. 12866. It was determined that they would not have an annual
impact on the economy of $100M or more and would not adversely affect
the productivity, environment, public health or safety, or state,
local, or tribal governments or communities in the long run. The final
rule does not interfere with an action planned by another agency. It
does not raise any novel legal and policy issues because it is
implementing the provisions of the 1994 Amendments to the MMPA and the
regulations already set in place to promulgate that statute.
Classification
An environmental assessment (EA) describing the impacts to the
human environment that would result from the implementation of the
ALWTRP was prepared for the interim final rule. The conclusion of that
EA was that the action would pose no significant impact. There were no
comments received disputing this conclusion. Because this final rule is
substantially the same as the interim final rule, no further EA has
been carried out.
NMFS prepared an Initial Regulatory Flexibility Analysis (IFRA)
that described the impact the proposed rule was expected to have on
small entities. The conclusion of this IFRA was that the economic
impact on small entities was likely to be significant. This was due to
the gear modifications which would have been required by the proposed
rule. The interim final rule was substantially different than the
proposed rule, which mitigated most of the economic consequences of the
proposed rule. NMFS prepared a Regulatory Impact Review for the interim
final rule. Based on that review, NMFS certified that the action would
not have a significant economic impact on a substantial number of small
entities, nonetheless, a Final Regulatory Flexibility Analysis (FRFA)
was prepared for the final rule.
NMFS received only one public comment relating to the certification
of the interim final rule. The commenter questioned the conclusion that
the interim final rule would not have a significant impact on small
businesses and asked that NMFS prepare a Regulatory Flexibility
Analysis. No economic information was provided disputing the
conclusions of the Regulatory Impact Review for the interim final rule.
The final rule makes only minor changes to the interim final rule.
However, to ensure that this final rule's economic impacts on small
entities are fully considered, NMFS has prepared a FRFA. A copy of this
analysis is available from NMFS (see ADDRESSES).
The final rule is expected to have an economic impact on
approximately 1100 lobster fishing operations and approximately 160
gillnet vessels (substantially fewer than the interim final rule).
Based on 1996 logbook data, 8 gillnet vessels will have their revenue
reduced by more than 5 percent. Approximately 72 lobster fishing
operations may see their costs increase more than 10 percent. It is
unlikely that 2 percent of participants will cease operations as a
result of this action. The objectives and need for this action are
described above in the preamble. In this final rule, the gear marking
requirement will apply to substantially fewer vessels, thereby
mitigating the overall economic burden of the interim final rule.
This final rule does not constitute a significant regulatory action
under Executive Order 12866. (1) The action will not have an annual
effect on the economy of more than $100 million. (2) The action will
not adversely affect in a material way the economy, productivity,
competition and jobs. (3) The action will not affect competition, jobs,
the environment, public health or safety, or state, local or tribal
governments and communities. (4) The action will not create an
inconsistency or otherwise interfere with an action taken or planned by
another agency. No other agency has indicated that it plans an action
that will affect these fisheries. (5) The action will not materially
alter the budgetary impact of entitlement, grants, user fees, or loan
programs or the rights and obligations of their recipients. (6) The
action does not raise novel legal or policy issues.
NMFS determined that this action is consistent to the maximum
extent practicable with 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
[[Page 7551]]
Management Act. The NMFS letter to the states indicated that responses
regarding concurrence were due within 45 days of receipt of the letter
and that lack of a response would be an assumption of concurrence with
the consistency determination. No state disagreed with our conclusion
that the ALWTRP is consistent with the approved coastal management
program for that state.
This action contains two collection-of-information requirements and
therefore is subject to the provisions of the Paperwork Reduction Act:
(1) Persons setting lobster or gillnet gear in some areas of the
Atlantic Ocean would be required to paint or otherwise mark their gear
with two color codes, one color designating the type of gear, the other
designating the area where the gear is set. These marking requirements
apply in right whale critical habitats and in areas described below as
the southeast Observer Area and as the SB/JL Restricted Area. The goal
of this collection of information is to obtain more information on
where large whales are being entangled and on what kind of gear is
responsible for the entanglement. (2) From November 15 to March 31,
persons netting for sharks in Atlantic waters off Florida and Georgia
would be required to call NMFS 48 hours prior to departure to arrange
for an observer. The purpose of this collection of information is to
allow NMFS to coordinate fisheries observer coverage of the fishery.
The affected public includes business and other for-profit
organizations (persons participating in the lobster and gillnet
fisheries in specified areas). The gear marking requirements are
expected to affect 1100 lobster fishermen and 160 gillnet fishermen.
The call-in requirement in the southeast U.S. Observer Area is expected
to affect 30 shark gillnet fishermen.
In a Federal Register document on June 5, 1998 (63 FR 30720), the
public was asked to comment on the estimates of time and cost of
compliance with the gear marking and call-in requirements. No comments
were received during the comment period, which closed on August 4,
1998. The OMB has approved the gear marking requirement (OMB Control
Number: 0648-0364). The call-in requirement is part of a general
requirement for the shark industry and was approved earlier by OMB (OMB
Control Number: 0648-0205). Notwithstanding any other provision of law,
no person is required to respond to nor shall any person be subject to
a penalty for failure to comply with a collection of information
subject to the requirements of the Paperwork Reduction Act unless that
collection of information displays a currently valid OMB control
number.
The ALWTRP incorporates the reasonable and prudent alternatives of
the three ESA Section 7 Biological Opinions on commercial fisheries for
lobster, multispecies, and sharks, which remove the threat of jeopardy
to the northern right whale. Furthermore, the ALWTRP incorporates other
measures to reduce impacts to the other species of endangered large
whales. In addition, a Section 7 consultation was conducted on the
interim final rule implementing the ALWTRP. This consultation concluded
that operation of the fisheries under the elements of this plan may
affect but will not jeopardize the continued existence of any listed
species under NMFS jurisdiction. This final rule incorporates few
changes to the scope of the action considered in the biological opinion
(July 15, 1997) prepared for the interim final rule, and a
determination was made that no further consultation under Section 7 was
necessary at this time. Therefore, all agency responsibilities under
the ESA have been addressed.
Several marine mammal species, other than those listed as
endangered or threatened under the ESA, are known to become entangled
in gillnet and lobster gear. However, NMFS has determined that this
action does not exacerbate the existing problem. Therefore, this action
will not have an adverse impact on the marine mammals.
This rule does not contain policies with federalism implications
sufficient to warrant preparation of a federalism assessment under
Executive Order 12612.
NMFS has complied with the Administrative Procedures Act through
publishing a proposed rule with a request for written comments, and by
holding 12 public hearings in the action area of this rule. Because of
substantial changes to the proposed rule based on public comments and
the Gear Advisory Group, NMFS then published an interim final rule to
allow for further comment on the plan. This final rule addresses the
comments received on the interim final rule.
References
Barlow, J. et al. 1995. U.S. Marine Mammal Stock Assessments:
Guidelines for preparations, background, and a summary of the 1995
assessments. NOAA Technical Memorandum NMFS-OPR-6. U.S. Department of
Commerce, Washington, DC, p. 73.
Knowlton, A.R. et al. 1994. Reproduction in North Atlantic right
whales (Eubalaena glacialis). Can. J. Zool. 72:1287-1305.
Kraus, S.D. 1990. Rates and potential causes of mortality in North
Atlantic right whales (Eubalaena glacialis). Mar. Mamm. Sci. 6(4):278-
291.
Smith, T.D. et al. 1998. An ocean-basin-wide mark-recapture study
of the North Atlantic humpback whale (Megaptera novaeangliae). Mar.
Mamm. Sci. (in press).
Waring, G.T. et al. 1997. U.S. Atlantic and Gulf of Mexico Marine
Mammal Stock Assessments--1996. NOAA Technical Memorandum NMFS-NE-
114. U.S. Department of Commerce, Northeast Fisheries Science
Center, Woods Hole, MA. p. 250.
Waring, G.T. et al. in prep. U.S. Atlantic and Gulf of Mexico Marine
Mammal Stock Assessments--1998. Submitted for public comment.
Team Report. 1997. Draft Atlantic Large Whale Take Reduction Report.
Report prepared by the Atlantic Large Whale Take Reduction Team and
submitted to the National Marine Fisheries Service February 4, 1997.
p. 79.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and record-keeping
requirements.
Dated: February 8, 1999.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 229 is amended
to read as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. In Sec. 229.2, definitions of ``Sink gillnet'', ``Lobster pot'',
and ``Lobster pot trawl'' are removed. Definitions of ``Anchored
gillnet'', ``Driftnet, drift gillnet or drift entanglement gear'',
``Gillnet'', ``Groundline'', ``Offshore lobster waters'', ``Strikenet
or to fish with strikenet gear'', ``Tended gear or tend'', and ``Weak
Link'' are revised, and the definitions of ``Lobster trap'', ``Lobster
trap trawl'', ``Night'', ``Shark gillnetting'', ``Sink gillnet or stab
net'' and ``To strikenet for sharks'' are added in alphabetical order
to read as follows:
Sec. 229.2 Definitions.
* * * * *
Anchored gillnet means any gillnet gear, including a sink gillnet
or stab net,
[[Page 7552]]
that is set anywhere in the water column and which is anchored, secured
or weighted to the bottom of the sea. Also called a set gillnet.
* * * * *
Driftnet, drift gillnet, or drift entanglement gear means a gillnet
or gillnets that is/are unattached to the ocean bottom and not
anchored, secured or weighted to the bottom, regardless of whether
attached to a vessel.
* * * * *
Gillnet means fishing gear consisting of a wall of webbing (meshes)
or nets, designed or configured so that the webbing (meshes) or nets
are placed in the water column, usually held approximately vertically,
and are designed to capture fish by entanglement, gilling, or wedging.
The term ``gillnet'' includes gillnets of all types, including but not
limited to sink gillnets, other anchored gillnets (e.g. stab and set
nets), and drift gillnets. Gillnets may or may not be attached to a
vessel.
Groundline, with reference to lobster trap gear, means a line
connecting lobster traps in a lobster trap trawl, and, with reference
to gillnet gear, means a line connecting a gillnet or gillnet bridle to
an anchor or buoy line.
* * * * *
Lobster trap means any trap, pot or other similar type of enclosure
that is placed on the ocean bottom and is designed to or is capable of
catching lobsters. This definition includes but is not limited to
lobster pots, black sea bass pots and scup pots.
Lobster trap trawl means two or more lobster traps attached to a
single groundline.
* * * * *
Night means any time between one half hour before sunset and one
half hour after sunrise.
* * * * *
Offshore lobster waters comprises entirely federal waters as
defined by the area bounded by straight lines connecting the following
points, in the order stated, except for waters in the Great South
Channel critical right whale habitat:
------------------------------------------------------------------------
Longitude (
Point Latitude ( deg.N) deg.W)
------------------------------------------------------------------------
A................................ 43 deg. 58' 67 deg. 22'
B................................ 43 deg. 41' 68 deg. 00'
C................................ 43 deg. 12.5' 69 deg. 00'
D................................ 42 deg. 49' 69 deg. 40'
E................................ 42 deg. 15.5' 69 deg. 40'
F................................ 42 deg. 10' 69 deg. 56'
K................................ 41 deg. 10' 69 deg. 06.5'
N................................ 40 deg. 45.5' 71 deg. 34'
M................................ 40 deg. 27.5' 72 deg. 14'
U................................ 40 deg. 12.5' 72 deg. 48.5'
V................................ 39 deg. 50' 73 deg. 01'
X................................ 38 deg. 39.5' 73 deg. 40'
Y................................ 38 deg. 12' 73 deg. 55'
Z................................ 37 deg. 12' 74 deg. 44'
ZA............................... 36 deg. 33' 74 deg. 47'
------------------------------------------------------------------------
From point ``ZA'' east to the EEZ boundary and thence along the seaward
EEZ boundary to point ``A''.
* * * * *
Shark gillnetting means to fish a gillnet in waters south of the
South Carolina/Georgia border with webbing of 5 inches or greater
stretched mesh.
Sink gillnet or stab net means any gillnet, anchored or otherwise,
that is designed to be, or is fished on or near the bottom in the lower
third of the water column.
Strikenet or to fish with strikenet gear means a gillnet that is
designed so that, when it is deployed, it encircles or encloses an area
of water either with the net or by utilizing the shoreline to complete
encirclement, or to fish with such a net and method.
* * * * *
Tended gear or tend means fishing gear that is physically attached
to a vessel in a way that is capable of harvesting fish, or to fish
with gear attached to the vessel.
To strikenet for sharks means to fish with strikenet gear in waters
south of the South Carolina/Georgia border with webbing of 5 inches or
greater stretched mesh.
* * * * *
Weak link means a breakable component of gear that will part when
subject to a certain tension load.
3. In Sec. 229.3, paragraphs (g) through (j) are revised to read as
follows:
Sec. 229.3 Prohibitions.
* * * * *
(g) It is prohibited to fish with lobster trap gear in the areas
and for the times specified in Sec. 229.32(c)(3) through (c)(9) unless
the lobster trap gear complies with the closures, marking requirements,
modifications, and restrictions specified in Sec. 229.32(c)(1) through
(c)(10).
(h) It is prohibited to fish with anchored gillnet gear in the
areas and for the times specified in Sec. 229.32(d)(2) through (d)(7)
unless that gillnet gear complies with the closures, marking
requirements, modifications, and restrictions specified in
Sec. 229.32(d)(1) through (d)(8).
(i) It is prohibited to fish with drift gillnets in the areas and
for the times specified in Sec. 229.32(e)(1) unless the drift gillnet
gear complies with the restrictions specified in Sec. 229.32(e)(1).
(j) It is prohibited to fish with shark gillnet gear in the areas
and for the times specified in Sec. 229.32(f)(1) and (3) unless the
gear meets the marking requirements specified in Sec. 229.32(f)(2) and
complies with the restrictions and requirements specified in
229.32(f)(1) and (f)(3).
* * * * *
4. Section 229.32, in subpart C, is revised to read as follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
(a)(1) Regulated waters. The regulations in this section apply to
all U.S. waters in the Atlantic except for the areas exempted in
paragraph (a)(2) of this section.
(2) Exempted waters. The regulations in this section do not apply
to waters landward of the first bridge over any embayment, harbor, or
inlet and to waters landward of the following lines:
Rhode Island
41 deg. 27.99' N 71 deg. 11.75' W TO 41 deg. 28.49' N 71 deg. 14.63' W
(Sakonnet River)
41 deg. 26.96' N 71 deg. 21.34' W TO 41 deg. 26.96' N 71 deg. 25.92' W
(Narragansett Bay)
41 deg. 22.41' N 71 deg. 30.80' W TO 41 deg. 22.41' N 71 deg. 30.85' W
(Pt. Judith Pond Inlet)
41 deg. 21.31' N 71 deg. 38.30' W TO 41 deg. 21.30' N 71 deg. 38.33' W
(Ninigret Pond Inlet)
41 deg. 19.90' N 71 deg. 43.08' W TO 41 deg. 19.90' N 71 deg. 43.10' W
(Quonochontaug Pond Inlet)
41 deg. 19.66' N 71 deg. 45.75' W TO 41 deg. 19.66' N 71 deg. 45.78' W
(Weekapaug Pond Inlet)
New York
West of the line from the Northern fork of the eastern end of Long
Island, NY (Orient Pt.) to Plum Island to Fisher's Island to Watch
Hill, RI. (Long Island Sound)
41 deg. 11.40' N 72 deg. 09.70' W TO 41 deg. 04.50' N 71 deg. 51.60' W
(Gardiners Bay)
40 deg. 50.30' N 72 deg. 28.50' W TO 40 deg. 50.36' N 72 deg. 28.67' W
(Shinnecock Bay Inlet)
40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 45.30' W
(Moriches Bay Inlet)
40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 18.56' W
(Fire Island Inlet)
40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 35.22' W
(Jones Inlet)
[[Page 7553]]
New Jersey
39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg. 06.20' W
(Barnegat Inlet)
39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg. 19.75' W
(Beach Haven to Brigantine Inlet)
38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg. 51.90' W
(Cape May Inlet)
39 deg. 16.70' N 75 deg. 14.60' W TO 39 deg. 11.25' N 75 deg. 23.90' W
(Delaware Bay)
Maryland/Virginia
38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 05.25' W
(Ocean City Inlet)
37 deg. 52.50' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' W
(Chincoteague to Ship Shoal Inlet)
37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 49.60' W
(Little Inlet)
37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.50' W
(Smith Island Inlet)
North Carolina to Florida
All marine and tidal waters landward of the 72 COLREGS demarcation
line (International Regulations for Preventing Collisions at Sea,
1972), as depicted or noted on nautical charts published by the
National Oceanic and Atmospheric Administration (Coast Charts 1:80,000
scale), and as described in 33 CFR part 80.
(b) Gear marking provisions--(1)(i) Specified gear. Specified
fishing gear consists of lobster trap gear and gillnet gear set in
specified areas.
(ii) Specified areas. Specified areas are: Southeast U.S. Observer
Area, Great South Channel Restricted Areas (including the Great South
Channel Sliver Restricted Area), Cape Cod Bay Restricted Area, and the
Stellwagen Bank/Jeffreys Ledge Restricted Area.
(iii) Requirement. From January 1, 1999, and as otherwise required
in paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii),
(d)(3)(ii), (d)(4)(ii), (d)(5)(ii), and (f)(2) of this section, any
person who owns or fishes with specified fishing gear in specified
areas must mark that gear as specified in paragraphs (b)(2) and (b)(3)
of this section, unless otherwise required by the Assistant
Administrator under paragraph (g) of this section.
(2) Color code. Specified gear must be marked with the appropriate
colors to designate gear-types and areas as follows:
Lobster trap gear--red
Gillnet gear--green
Southeast U.S. Observer Area--blue
Great South Channel Restricted Areas--yellow
Cape Cod Bay Restricted Area--orange
Stellwagen Bank/Jeffreys Ledge Area--black
(3) Markings. All specified gear in specified areas must be marked
with two color codes, one designating the gear type, the other
indicating the area where the gear is set. Each color of the color
codes must be permanently marked on or along the line or lines
specified under paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii),
(d)(2)(ii), (d)(3)(ii), (d)(4)(ii), (d)(5)(ii), and (f)(2) of this
section. Each color mark of the color codes must be clearly visible
when the gear is hauled or removed from the water. Each mark must be at
least 4 inches (10.2 cm) long. The two color marks must be placed
within 6 inches (15.2 cm) of each other. If the color of the rope is
the same as or similar to a color code, a white mark may be substituted
for that color code. (For example, buoy lines of gillnet gear set in
the Great South Channel Sliver Restricted Area must have a yellow mark
and a green mark, each at least 4 inches (10.2 cm) long, with the
yellow and green marks placed within 6 inches (15.2 cm) of each other.
If the buoy line is yellow, the gear must have white and green marks.)
In marking or affixing the color code, the line may be dyed, painted,
or marked with thin colored whipping line, thin colored plastic or heat
shrink tubing, or other material, or a thin line may be woven into or
through the line, or the line may be marked as approved in writing by
the Assistant Administrator.
(4) Changes to requirements. If the Assistant Administrator revises
the gear marking requirements under paragraph (g) of this section, the
gear must be marked in compliance with those requirements.
(c) Restrictions applicable to lobster trap gear in regulated
waters--(1) No line floating at the surface. No person may fish with
lobster trap gear that has any portion of the buoy line floating at the
surface at any time, except that, if more than one buoy is attached to
a single buoy line or if a high flyer and a buoy are used together on a
single buoy line, floating line may be used between these objects.
(2) No wet storage of gear. Lobster traps must be hauled out of the
water at least once in 30 days.
(3) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay
restricted area consists of the Cape Cod Bay Critical Habitat area
specified under 50 CFR 216.13(b), unless the Assistant Administrator
changes that area in accordance with paragraph (g) of this section.
(ii) Gear marking requirements. No person may fish with lobster
trap gear in the Cape Cod Bay Restricted Area unless that gear is
marked according to the gear marking code specified under paragraph (b)
of this section. All buoy lines used in connection with lobster trap
gear must be marked within 2 ft (0.6 m) of the top of the buoy line (or
2 ft (0.6 m) below a weak link) and midway along the length of the buoy
line.
(iii) Winter restricted period. The winter restricted period for
this area is from January 1 through May 15 of each year. During the
winter restricted period, no person may fish with lobster trap gear in
the Cape Cod Bay Restricted Area unless that person's gear complies
with the following requirements:
(A) Weak links--All buoy lines are attached to the buoy with a weak
link. The breaking strength of this weak link must be no more than 500
lb (226.7 kg).
(B) Multiple trap trawls--All traps are set in either a two-trap
string or in a trawl of four or more traps. Single traps and three trap
trawls are not allowed. A two-trap string must have only one buoy line.
(C) Sinking buoy lines--All buoy lines are comprised 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.
(D) Sinking ground line--All ground lines are made entirely of
sinking line.
(iv) Other restricted period. From May 16 through December 31 of
each year, no person may fish with lobster trap gear in the Cape Cod
Bay Restricted Area unless that person's gear complies with at least
two of the characteristics of the Lobster Take Reduction Technology
List in paragraph (c)(10) of this section. The Assistant Administrator
may revise this restricted period in accordance with paragraph (g) of
this section.
(4) Great South Channel Restricted Lobster Area--(i) Area. The
Great South Channel restricted area consists of the Great South Channel
Critical Habitat area specified under 50 CFR 216.13(a) unless the
Assistant Administrator changes that area in accordance with paragraph
(g) of this section.
(ii) Gear marking requirements. No person may fish with lobster
trap gear in the Great South Channel Restricted Area unless that gear
is marked according to the gear marking code specified under paragraph
(b) of this section. All buoy lines used in connection with lobster
trap gear must be marked within 2 ft (0.6 m) of the top
[[Page 7554]]
of the buoy line (or 2 ft (0.6 m) below a weak link) and midway along
the length of the buoy line.
(iii) Spring closed period. The spring closed period for this area
is from April 1 through June 30 of each year unless the Assistant
Administrator revises the closed period in accordance with paragraph
(g) of this section. During the spring closed period, no person may
fish with or set lobster trap gear in the Great South Channel
restricted lobster area unless the Assistant Administrator specifies
gear modifications or alternative fishing practices in accordance with
paragraph (g) of this section and the gear or practices comply with
those specifications.
(iv) Other restricted period. From July 1 through March 31 no
person may fish with lobster trap gear in the Great South Channel
Restricted Lobster Area unless that person's gear complies with at
least two of the characteristics of the Lobster Take Reduction
Technology List in paragraph (c)(10) of this section. The Assistant
Administrator may revise this restricted period in accordance with
paragraph (g) of this section.
(5) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The
Stellwagen Bank/Jeffreys Ledge restricted area consists of all Federal
waters of the Gulf of Maine that lie to the south of the 43 deg.15' N
lat. line and west of the 70 deg. W long. line, except for right whale
critical habitat, unless the Assistant Administrator changes that area
in accordance with paragraph (g) of this section.
(ii) Gear marking requirements. No person may fish with lobster
trap gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless
that gear is marked according to the gear marking code specified under
paragraph (b) of this section. All buoy lines used in connection with
lobster trap gear must be marked within 2 ft (0.6 m) of the top of the
buoy line (or 2 ft (0.6 m) below a weak link) and midway along the
length of the buoy line.
(iii) Gear requirements. No person may fish with lobster trap gear
in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that
person's gear complies with at least two of the characteristics of the
Lobster Take Reduction Technology List in paragraph (c)(10) of this
section. The Assistant Administrator may revise this requirement in
accordance with paragraph (g) of this section.
(6) Northern offshore lobster waters--(i) Area. The northern
offshore lobster waters area includes all offshore lobster waters (as
defined in Sec. 229.2) north of 41 deg.30 N lat., except for areas
included in the Great South Channel Critical Habitat.
(ii) Gear requirements. No person may fish with lobster trap gear
in the northern offshore lobster waters area unless that person's gear
complies with at least one of the characteristics of the Lobster Take
Reduction Technology List in paragraph (c)(10) of this section. The
Assistant Administrator may revise this requirement in accordance with
paragraph (g) of this section.
(7) Southern offshore lobster waters--(i) Area. The southern
offshore lobster waters area includes all offshore lobster waters (as
defined in Sec. 229.2) south of 41 deg.30 N lat., except for areas
included in the Great South Channel Critical Habitat.
(ii) Gear requirements. From December 1 through March 31, no person
may fish with lobster trap gear in the southern offshore lobster waters
area unless that person's gear complies with at least one of the
characteristics of the Lobster Take Reduction Technology List in
paragraph (c)(10) of this section. The Assistant Administrator may
revise this requirement in accordance with paragraph (g) of this
section.
(8) Northern inshore lobster waters--(i) Area. Northern inshore
lobster waters consist of all inshore lobster waters (as defined in
Sec. 229.2) north of 41 deg.30' N lat., except the Cape Cod Bay
restricted area, Great South Channel restricted area and the Stellwagen
Bank/Jeffreys Ledge restricted area.
(ii) Gear Requirements. No person may fish with lobster trap gear
in the northern inshore lobster waters area unless that person's gear
complies with at least one of the characteristics of the Lobster Take
Reduction Technology List in paragraph (c)(10) of this section. The
Assistant Administrator may revise this requirement in accordance with
paragraph (g) of this section.
(9) Southern inshore lobster waters--(i) Area. The southern inshore
lobster waters consist of all inshore lobster waters (as defined in
Sec. 229.2) south of 41 deg.30' N lat., except the Great South Channel
restricted area.
(ii) Gear requirements. From December 1 through March 31, no person
may fish with lobster trap gear in the southern inshore lobster waters
area unless that person's gear complies with at least one of the
characteristics of the Lobster Take Reduction Technology List in
paragraph (c)(10) of this section. The Assistant Administrator may
revise this requirement in accordance with paragraph (g) of this
section.
(10) Lobster Take Reduction Technology List. The following gear
characteristics comprise the Lobster Take Reduction Technology List:
(i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
(ii) All buoys are attached to the buoy line with a weak link
having a maximum breaking strength of up to 1100 lb (498.8 kg). Weak
links may include swivels, plastic weak links, rope of appropriate
diameter, hog rings, rope stapled to a buoy stick, or other materials
or devices approved in writing by the Assistant Administrator.
(iii) For gear set in offshore lobster areas only, all buoys are
attached to the buoy line with a weak link having a maximum breaking
strength of up to 3780 lb (1714.3 kg).
(iv) For gear set in offshore lobster areas only, all buoys are
attached to the buoy line by a section of rope no more than three
fourths the diameter of the buoy line.
(v) All buoy lines are composed entirely of sinking line.
(vi) All ground lines are made of sinking line.
(d) Restrictions applicable to anchored gillnet gear--(1) No line
floating at the surface. No person may fish with anchored gillnet gear
that has any portion of the buoy line floating at the surface at any
time, except that, if more than one buoy is attached to a single buoy
line or if a high flyer and a buoy are used together on a single buoy
line, floating line may be used between these objects.
(2) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay
Restricted Area consists of the Cape Cod Bay Critical Habitat area
specified under 50 CFR 216.13(b), unless the Assistant Administrator
changes that area under paragraph (g) of this section.
(ii) Gear marking requirements. No person may fish with anchored
gillnet gear in the Cape Cod Bay Restricted Area unless that gear is
marked according to the gear marking code specified under paragraph (b)
of this section. All buoy lines used in connection with anchored
gillnets must be marked within 2 ft (0.6 m) of the top of the buoy line
(or 2 ft (0.6 m) below a weak link) and midway along the length of the
buoy line.
(iii) Winter restricted period. The winter restricted period for
this area is from January 1 through May 15 of each year, unless the
Assistant Administrator revises the restricted period under paragraph
(g) of this section. During the winter restricted period, no person may
fish with anchored gillnet gear in the Cape Cod Bay Restricted Area
unless the Assistant Administrator specifies gear modifications or
alternative fishing practices under paragraph (g) of this section and
the gear or practices comply with those specifications. The Assistant
[[Page 7555]]
Administrator may waive this closure for the remaining portion of any
year through a notification in the Federal Register if NMFS determines
that right whales have left the critical habitat and are unlikely to
return for the remainder of the season.
(iv) Other restricted period. From May 16 through December 31 of
each year, no person may fish with anchored gillnet gear in the Cape
Cod Bay Restricted Area unless that person's gear complies with at
least two of the characteristics of the Gillnet Take Reduction
Technology List in paragraph (d)(8) of this section. The Assistant
Administrator may revise this restricted period in accordance with
paragraph (g) of this section.
(3) Great South Channel Restricted Gillnet Area--(i) Area. The
Great South Channel Restricted Gillnet Area consists of the area
bounded by lines connecting the following four points: 41 deg.02.2' N/
69 deg.02' W, 41 deg.43.5' N/69 deg.36.3' W, 42 deg.10' N/68 deg.31' W,
and 41 deg.38' N/68 deg.13' W, unless the Assistant Administrator
changes that area in accordance with paragraph (g) of this section.
This area includes the Great South Channel critical habitat area
specified under 50 CFR 216.13(a), except for the ``sliver area''
identified in paragraph (d)(4) of this section.
(ii) Gear marking requirements. No person may fish with anchored
gillnet gear in the Great South Channel Restricted Gillnet Area unless
that gear is marked according to the gear marking code specified under
paragraph (b) of this section. All buoy lines used in connection with
anchored gillnets must be marked within 2 ft (0.6 m) of the top of the
buoy line (or 2 ft (0.6 m) below a weak link) and midway along the
length of the buoy line.
(iii) Spring closed period. The spring closed period for this area
is from April 1 through June 30 of each year unless the Assistant
Administrator revises the closed period in accordance with paragraph
(g) of this section. During the spring closed period, no person may set
or fish with anchored gillnet gear in the Great South Channel
Restricted Gillnet Area unless the Assistant Administrator specifies
gear modifications or alternative fishing practices in accordance with
paragraph (g) of this section and the gear or practices comply with
those specifications.
(iv) Other restricted period. From July 1 through March 31 no
person may fish with anchored gillnet gear in the Great South Channel
Restricted Gillnet Area unless that person's gear complies with at
least two of the characteristics of the Gillnet Take Reduction
Technology List in paragraph (d)(8) of this section. The Assistant
Administrator may revise this restricted period in accordance with
paragraph (g) of this section.
(4) Great South Channel Sliver Restricted Area--(i) Area. The Great
South Channel Sliver Restricted Area consists of the area bounded by
lines connecting the following points: 41 deg.02.2' N/69 deg.02' W,
41 deg.43.5' N/69 deg.36.3' W, 41 deg.40' N/69 deg.45' W, and
41 deg.00' N/69 deg.05' W, unless the Assistant Administrator changes
that area in accordance with paragraph (g) of this section.
(ii) Gear marking requirements. No person may fish with anchored
gillnet gear in the Great South Channel Sliver Restricted Area unless
that gear is marked according to the gear marking code specified under
paragraph (b) of this section. All buoy lines used in connection with
anchored gillnets must be marked within 2 ft (0.6 m) of the top of the
buoy line (or 2 ft below a weak link) and midway along the length of
the buoy line.
(iii) Gear requirements. No person may fish with anchored gillnet
gear in the Great South Channel Sliver Restricted Area unless that
person's gear complies with at least two of the characteristics of the
Gillnet Take Reduction Technology List in paragraph (d)(8) of this
section. The Assistant Administrator may revise these requirements in
accordance with paragraph (g) of this section.
(5) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The
Stellwagen Bank/Jeffreys Ledge Restricted Area consists of all Federal
waters of the Gulf of Maine that lie to the south of the 43 deg.15' N
lat. line and west of the 70 deg. W long. line, except right whale
critical habitat, unless the Assistant Administrator changes that area
in accordance with paragraph (g) of this section.
(ii) Gear marking requirements. No person may fish with anchored
gillnet gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area
unless that gear is marked according to the gear marking code specified
under paragraph (b) of this section. All buoy lines used in connection
with anchored gillnets must be marked within 2 ft (0.6 m) of the top of
the buoy line (or 2 ft below a weak link) and midway along the length
of the buoy line.
(iii) Gear requirements. No person may fish with anchored gillnet
gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that
person's gear complies with at least two of the characteristics of the
Gillnet Take Reduction Technology List in paragraph (d)(8) of this
section. The Assistant Administrator may revise these requirements in
accordance with paragraph (g) of this section.
(6) Other Northeast Waters Area--(i) Area. The ``Other Northeast
Waters Area'' consists of all northeast waters (as defined in
Sec. 229.2) except for the Cape Cod Bay Restricted Area, the Great
South Channel Restricted Gillnet Area, Great South Channel Sliver
Restricted Area and the Stellwagen Bank/Jeffreys Ledge Restricted Area.
(ii) Gear requirements. No person may fish with anchored gillnet
gear in the Other Northeast Waters Area unless that person's gear
complies with at least one of the characteristics of the Gillnet Take
Reduction Technology List in paragraph (d)(8) of this section. The
Assistant Administrator may revise these requirements in accordance
with paragraph (g) of this section.
(7) Mid-Atlantic Coastal Waters Area--(i) Area. The mid-Atlantic
Coastal Waters Area is defined in Sec. 229.2.
(ii) Gear requirements. From December 1 through March 31, no person
may fish with anchored gillnets in the Mid-Atlantic Coastal Waters Area
unless that person's gear complies with at least one of the
characteristics of the Gillnet Take Reduction Technology List in
paragraph (d)(8) of this section. The Assistant Administrator may
revise these requirements in accordance with paragraph (g) of this
section.
(8) Gillnet Take Reduction Technology List. The following gear
characteristics comprise the Gillnet Take Reduction Technology List:
(i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
(ii) All buoys are attached to the buoy line with a weak link
having a maximum breaking strength of up to 1100 lb (498.8 kg). Weak
links may include swivels, plastic weak links, rope of appropriate
diameter, hog rings, rope stapled to a buoy stick, or other materials
or devices approved in writing by the Assistant Administrator.
(iii) Weak links with a breaking strength of up to 1100 lb (498.8
kg) are installed in the float rope between net panels.
(iv) All buoy lines are composed entirely of sinking line.
(e) Restrictions applicable to mid-Atlantic driftnet gear--(1)
Restrictions. From December 1 through March 31 of the following year,
no person may fish with driftnet gear at night in the mid-Atlantic
coastal waters area unless that gear is tended. During that time, all
driftnet gear set by that vessel in the mid-Atlantic coastal waters
area must be removed from the water and stowed on board the vessel
before a vessel returns to port. The Assistant Administrator
[[Page 7556]]
may revise these requirements in accordance with paragraph (g) of this
section.
(f) Restrictions applicable to shark gillnet gear--(1) Management
areas--(i) Southeast U.S. restricted area. The southeast U.S.
restricted area consists of the area from 32 deg.00' N lat. (near
Savannah, GA) south to 27 deg.51' N lat. (near Sebastian Inlet, FL),
extending from the shore eastward to 80 deg.00' W long., unless the
Assistant Administrator changes that area in accordance with paragraph
(g) of this section.
(ii) Southeast U.S. observer area. The southeast U.S. observer area
consists of the southeast U.S. restricted area and an additional area
along the coast south to 26 deg.46.5' N lat. (near West Palm Beach, FL)
and extending from the shore eastward out to 80 deg.00' W long., unless
the Assistant Administrator changes that area in accordance with
paragraph (g) of this section.
(2) Gear marking requirements. From November 15 through March 31 of
the following year, no person may fish with gillnet gear in the
southeast U.S. observer area unless that gear is marked according to
the gear marking code specified under paragraph (b) of this section.
All buoy lines must be marked within 2 ft (0.6 m) of the top of the
buoy line and midway along the length of the buoy line. From November
15, 1999, each net panel must be marked along both the float line and
the lead line at least once every 100 yards (92.4 m).
(3) Restrictions--(i) Observer requirement. No person may fish with
shark gillnet gear in the southeast U.S. observer area from November 15
through March 31 of the following year unless the operator of the
vessel calls the SE Regional Office in St. Petersburg, FL, not less
than 48 hours prior to departing on any fishing trip in order to
arrange for observer coverage. If the Regional Office requests that an
observer be taken on board a vessel during a fishing trip at any time
from November 15 through March 31 of the following year, no person may
fish with shark gillnet gear aboard that vessel in the southeast U.S.
observer area unless an observer is on board that vessel during the
trip.
(ii) Closure. Except as provided under paragraph (f)(3)(iii) of
this section, no person may fish with shark gillnet gear in the
southeast U.S. restricted area during the closed period. The closed
period for this area is from November 15 through March 31 of the
following year, unless the Assistant Administrator changes that closed
period in accordance with paragraph (g) of this section.
(iii) Special provision for strikenets. Fishing for sharks with
strikenet gear is exempt from the restriction under paragraph
(f)(3)(ii) of this section if:
(A) No nets are set at night or when visibility is less than 500
yards (460 m).
(B) Each set is made under the observation of a spotter plane.
(C) No net is set within 3 nautical miles of a right, humpback, fin
or minke whale.
(D) If a right, humpback, fin or minke whale moves within 3
nautical miles of the set gear, the gear is removed immediately from
the water.
(g) Other provisions. In addition to any other emergency authority
under the Marine Mammal Protection Act, the Endangered Species Act, the
Magnuson-Stevens Fishery Conservation and Management Act, or other
appropriate authority, the Assistant administrator may take action
under this section in the following situations:
(1) Entanglements in critical habitat. If a serious injury or
mortality of a right whale occurs in the Cape Cod Bay critical habitat
from January 1 through May 15, in the Great South Channel Restricted
Area from April 1 through June 30, or in the Southeast U.S. Restricted
Area from November 15 through March 31 as a result of an entanglement
by lobster or gillnet gear allowed to be used in those areas and times,
the Assistant Administrator shall close that area to that gear type for
the rest of that time period and for that same time period in each
subsequent year, unless the Assistant Administrator revises the
restricted period in accordance with paragraph (g)(2) of this section
or unless other measures are implemented under paragraph (g)(2).
(2) Other special measures. The Assistant Administrator may revise
the requirements of this section through a publication in the Federal
Register if:
(i) NMFS verifies that certain gear characteristics are both
operationally effective and reduce serious injuries and mortalities of
endangered whales;
(ii) New gear technology is developed and determined to be
appropriate;
(iii) Revised breaking strengths are determined to be appropriate;
(iv) New marking systems are developed and determined to be
appropriate;
(v) NMFS determines that right whales are remaining longer than
expected in a closed area or have left earlier than expected;
(vi) NMFS determines that the boundaries of a closed area are not
appropriate;
(vii) Gear testing operations are considered appropriate; or
(viii) Similar situations occur.
[FR Doc. 99-3507 Filed 2-10-99; 2:45 pm]
BILLING CODE 3510-22-P
