Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-7170-04; I.D. 031997B]

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: Interim final rule.

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SUMMARY: NMFS by this action establishes a take reduction plan, and

issues an interim final rule implementing that plan, to reduce serious

injury and mortality to four large whale stocks that occurs 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; for multiple species in the U.S. mid-Atlantic coastal

gillnet fisheries; for lobster in the interim final rule includes time

and area closures for the lobster, anchored gillnet and shark drift

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 drift gillnets and drift gillnets in the mid-Atlantic.

The plan also contains non-regulatory aspects, including

recommendations for gear research, public outreach and increasing

efforts to disentangle whales caught in fishing gear.

DATES: Except for Secs. 229.32 (b), (c)(1), (d)(1), (e)(1), and (f)(1)

(the gear marking requirements), the regulations are effective November

15, 1997.

Sections 229.32 (b), (c)(1), (d)(1), (e)(1), and (f)(1) (the gear

marking requirements) are effective January 1, 1998. If the Office of

Management and Budget gives approval for the information collection

requirements in these sections at a later date, NOAA will publish a

timely document in the Federal Register with the new effective date.

Comments on the plan, the interim final rule, and paperwork burden

estimates must be received by October 15, 1997.

ADDRESSES: Comments should be sent to: Chief, Marine Mammal Division,

Office of Protected Resources, NMFS, 1315 East-West Highway, Silver

Spring, MD 20910. Copies of the Environmental Assessment accompanying

this interim rule can be obtained by writing to the same address.

Comments regarding the burden-hour estimates or any other aspect of the

collection of information requirements contained in the interim final

rule should also be sent to the Office of Information and Regulatory

Affairs, OMB, Attention: NOAA Desk Officer, Washington, DC 20503.

Copies of the 1996 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: Kim Thounhurst, NMFS, Northeast

Region, 508-281-9138; Bridget Mansfield, NMFS, Southeast Region, 813-

570-5312; or Michael Payne, 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. Take reductions plans are required

for each ``strategic stock.'' A strategic stock is a stock: (1) For

which the level of direct human-caused mortality exceeds the potential

biological removal (PBR) level; (2) that is declining and is likely to

be listed under the Endangered Species Act (ESA) in the foreseeable

future; or (3) that is listed as a threatened or endangered species

under the ESA or as a depleted species under the MMPA. Fisheries

primarily affected by take reduction plans are those classified as

``Category I'' or ``Category II'' fisheries under section 118(c)(1)(A)

(i) or (ii) of the MMPA. Category I fisheries have frequent incidental

mortality and serious injury of marine mammals. Category II fisheries

have occasional incidental mortality and serious injury of marine

mammals.

The immediate goal of a take reduction plan is to reduce, within 6

months of its implementation, the mortality and serious injury of

strategic stocks incidentally taken in the course of U.S. commercial

fishing operations to below the 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 parameters for calculating the PBR level

are described by the MMPA.

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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. Unlike PBR, the MMPA does not define

how to calculate the ``zero mortality rate goal'' (ZMRG). For the

purposes of this rule, NMFS intends to interpret ZMRG to be 10 percent

of the PBR level for each stock until a formal definition is

established.

Through this document, NMFS publishes an Atlantic Large Whale Take

Reduction Plan (ALWTRP) and an interim final rule implementing that

plan. The plan, in conjunction with the Offshore Cetacean Take

Reduction Plan, currently being developed, is intended to meet the

goals stated above for right whales, humpback, and fin whales, which

are listed as endangered species under the ESA (and are thus considered

strategic stocks under the MMPA). Although minke whales are not

considered strategic at this time, the ALWTRP is also expected to

reduce takes of minke whales. The plan may be amended in the future to

take account of new information or circumstances.

The fisheries 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 drift gillnet

fishery for sharks. The New England Multispecies sink gillnet fishery

is a Category I fishery that 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 is a Category I

fishery that has an historical bycatch of right, humpback, fin and

minke whales. The mid-Atlantic coastal gillnet fisheries are considered

a Category II fisheries complex that has an historical incidental

bycatch of humpback whales. The Southeastern U.S. Atlantic drift

gillnet fishery for sharks is a Category II fishery that is believed to

be responsible for bycatch of at least one right whale.

The pelagic drift gillnet fishery is a Category I fishery which has

recorded takes of large whales. Those interactions will be addressed in

the Atlantic Offshore Cetacean Take Reduction Plan.

Other fisheries operating on the U.S. Atlantic Coast have a low

level of historical bycatch of large whales but some may potentially

take large whales, because the gear is similar to that used by the four

fisheries regulated by this rule. These fisheries include the tuna hand

line/hook-and-line fishery, groundfish (bottom) longline/hook-and-line

fishery, surface gillnet fishery for small pelagic fishes, pot

fisheries other than lobster pot, finfish staked trap fisheries, and

weir/stop seine fisheries. Currently, these fisheries are either

classified as Category III or are unclassified. NMFS will continue to

assess the appropriateness of these classifications and may recommend a

reclassification in the future if evidence is found that any fishery

contributes significantly to the overall entanglement problem.

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

Penobscot Bay, Casco Bay, Long Island Sound, Delaware Bay and

Chesapeake Bay. South of the Virginia/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. For a precise definition of the exempted areas, see the

regulation section of this document.

Current Entanglement Rates and Future Targets

The information in this section is from the 1996 Stock Assessment

Reports (Waring et al., 1996) compiled by NMFS as required by the MMPA.

Additional information about the population biology and human-caused

sources of mortalities and serious injuries is included in the Stock

Assessment Reports, which are available from NMFS (see ADDRESSES).

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 from systematic data

collection; consequently, conclusions cannot be made regarding actual

entanglement levels; (3) identifying gear type or the fishery involved

is often problematic; and (4) identifying 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--Most of the measures in this plan

focus on ways to reduce the risk of serious injury and mortality to

right whales, both because the right whales' population status is more

critical than that of any other large whale and because right whales

are the only endangered large whale in U.S. Atlantic waters for which

the PBR level is known to be exceeded. The North Atlantic right whale

is one of the most endangered species in the world, numbering only

around 300 animals. The 1996 stock assessment compiled by NMFS

estimates that a minimum of 1.1 right whales from the western North

Atlantic stock are seriously injured or killed annually by entanglement

in U.S. fishing gear from 1991 through 1996. The reports available to

NMFS often do not contain the detail necessary to attribute an

entanglement to a particular fishery or location. However, lobster pot

gear and pelagic drift gillnet gear are known to have contributed to

these entanglements. Longer-term records held by NMFS include

entanglements of right whales in other gillnets, including gillnets in

Canada and in the southeastern United States. Unobserved entanglements

are also known to occur, based on observed scarred animals. More than

half of all right whales bear scars that appear to be from

entanglements. NMFS is unable to estimate the rate of these unobserved

events.

The overall rate or serious injuries or mortalities of right whales

by commercial fisheries must be reduced from 1.1 animals per year to

less than the PBR level of 0.4 animals per year to meet the 6-month

goal set by the MMPA.

Humpback Whales--The 1996 Stock Assessment Reports estimate that

rate of serious injury and mortality of humpback whales due to fishery

interactions is 4.1 animals per year. Of this value, 0.7 animals per

year were observed by NMFS observers. The remaining 3.4 animals per

year are from known entanglements not directly observed by NMFS. The

PBR level for this stock is 9.7 whales per year. Therefore, NMFS has

determined that a reduction in take for the western North

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Atlantic stock of this species is not required for these fisheries to

meet the 6-month goal.

Fin Whales--Although serious injury and mortality due to

entanglement has been documented for this stock of fin whales over the

1991-1995 period, none of those events can be conclusively attributed

to any of the four fisheries groups covered in this plan. The total

known fishery-related mortality and serious injury rate for this stock

is less than 10 percent of the PBR level, which is calculated to be 3.4

fin whales per year. Therefore, NMFS has determined that a reduction in

take for the western North Atlantic stock of this species is not

required for these fisheries to meet the 6-month goal. The 1996 Stock

Assessment Report concludes that the known fishery-related mortality

and serious injury for this stock is less than 10 percent of the PBR

level and can be considered to be approaching the ZMRG. This assessment

may change in the future. NMFS has records of fin whale entanglements

that have not been analyzed, however, and intends to complete the

analysis of these records soon. It should be noted that known

entanglements of fin whales are rare. The number of entangled fin whale

sightings is likely to be negatively biased, because carcasses usually

sink and are therefore less likely to be observed.

Minke Whales--The 1996 NMFS stock assessment report estimates that

2.5 minke whales are seriously injured or die from fishery-related

encounters. This level does not exceed the PBR level of 21 for this

stock. Therefore, NMFS has determined that a reduction in take for the

western North Atlantic stock of this species is not required for these

fisheries to meet the 6-month goal. This species is not listed as

threatened or endangered under the ESA or as depleted under the MMPA.

Measures implemented to reduce the entanglement rate of right and

humpback whales may reduce the entanglement rate for minke whales,

facilitating progress of that stock toward ZMRG.

Atlantic Large Whale Take Reduction Plan

As stated above and as required by the MMPA, the plan has two

goals. The first 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 in conjunction with the Atlantic Offshore Cetacean Take

Reduction Plan. The second 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.

Achieving these goals will be difficult, particularly for right

whales. NMFS has identified two approaches for reducing the risk of

serious injury or mortality to right whales to achieve the PBR level

and reducing that risk still further to achieve ZMRG. One approach is

through extensive closures of large areas of the ocean to lobster and

gillnet fishermen. This approach would guarantee reduction of

entanglements causing serious injury and mortalities but only at a high

cost to many fishermen.

The second approach is to close critical habitat areas only and to

modify fishing practices in a manner designed to create a realistic

potential of achieving MMPA objectives without sacrificing large parts

of a vital fishing industry. This approach does not carry the guarantee

of the first approach but it is calculated to have a reasonable chance

for success. This approach emphasizes cooperation with the fishermen

and takes advantage of their presence on the water to improve the

disentanglement effort and to enlist their aid in developing gear

modifications that will reduce bycatch while minimizing costs to the

fishery. Disentanglement efforts may work with large whales, which can

live for months or years carrying entangling gear, whereas they would

not work for small cetaceans such as harbor porpoises, which tend to

drown when entangled. The current estimate of serious injury and

mortality to right whales is 1.1 animals per year. If one additional

right whale is saved each year through fishermen's efforts to call in

sightings of entangled whales and to stand by to assist in

disentanglement efforts, this would go a long way to minimizing the

bycatch problem. Likewise, if four additional humpback whales are

disentangled per year, the entanglement rate might be below ZMRG.

Furthermore, the fishing industry is the best source of new ideas for

gear modifications to reduce bycatch and having the cooperation of the

industry could have 10,000 more vessels involved in sighting and

reporting entanglement events to the disentanglement network. Such

ideas are more likely to be forthcoming if cooperation is emphasized.

In this plan, NMFS adopts the second approach. In essence, the plan

encourages the fishing industry to take responsibility for reducing

takes of large whales, through measures that are designed to foster

cooperation with NMFS and the Atlantic Large Whale Take Reduction Team

(TRT), a group of stakeholders convened by NMFS to advise it on ways to

reduce serious injuries and mortalities to large whales due to

entanglements in fishing gear. Adopting a cooperative approach and

emphasizing disentanglement and gear research does not preclude

adopting additional measures later should that be necessary to meet the

standards of the MMPA. Steps to achieve the short-term goal.

NMFS believes that the plan and the interim final rule, plus

measures earlier this year and other measures to be taken under other

take reduction plans, including the upcoming Atlantic Offshore Cetacean

Take Reduction Plan, will reduce serious injury and mortality of right

whales to below the PBR level within 6 months.

This plan is expected to achieve the necessary take reductions

within 6 months through: (1) 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.

driftnet fishery to minimize the risk of entanglement; (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 are likely to 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.

The degree of risk reduction achieved by each of these measures

cannot be quantified in advance. An analysis of whether the PBR level

may have been achieved can only be made after the fact.

Right whales are typically found in the Cape Cod Bay Critical

Habitat from January 1 through May 15 and in the Great South Channel

critical habitat from April 1 through June 30. This interim final rule

closes the Cape Cod Bay Critical Habitat to sink gillnet fishing during

the high right whale use period (January 1 through May 15) until

modified gear or alternative fishing practices that reduce the

incidence or impact of entanglements are available. Lobster pot gear in

that area will be allowed but will have to be substantially modified to

minimize the risk of

[[Page 39160]]

entangling right whales. Lobster pot gear will be prohibited during the

high right whale use months in the Great South Channel (April 1 through

June 30), most of which will also be closed to gillnet fishing, until

modified gear or alternative fishing practices that reduce the

incidence or impact of entanglements are available.

Sink gillnets may be set during the April through June high right

whale use period in a ``sliver area'' of the Great South Channel

critical habitat. The sliver area is comprised of the waters in the

Great South Channel critical habitat west of the LORAN C 13710 line.

Only three percent of right whale sightings have occurred in that area,

and it was determined that a closure is not necessary to reduce

likelihood of entanglements.

Although not allowing lobster pot gear in the area west of the

Loran C 13710 line from April 1 through June 30 may appear inconsistent

with allowing sink gillnet gear in this area, NMFS believes that

lobster pot gear poses a greater threat to right whales than does sink

gillnet gear in this area. The offshore location generally requires

that gillnetters tend their gear, whereas lobster pot gear in this area

is often not checked for extended periods especially if there is bad

weather.

NMFS is closing the Great South Channel critical habitat to lobster

pot gear during the high right whale use period but will allow fishing

with strict gear requirements in the Cape Cod Bay critical habitat over

the comparable period. The rationale for this difference is that there

is a higher likelihood that an entangled whale in Cape Cod Bay will be

sighted and reported, due to the high level of vessel traffic and more

research efforts in that area. Potential whale entanglements in Cape

Cod Bay are considered more likely to be observed and reported to the

disentanglement network. In addition, NMFS believes that

disentanglement efforts may be more effective in reducing the potential

for serious injuries and mortalities in these relatively shallow, near-

shore waters than in offshore waters. The Great South Channel critical

habitat is further offshore and little whale-watching or survey effort

exists there. The likelihood of observing an entangled whale offshore

is lower, and offshore disentanglement efforts are subject to greater

logistical impediments.

An area from Sebastian Inlet, FL, to Savannah, GA, out to 80 deg. W

long. is closed to all shark driftnet fishing, except for

strikenetting, each year from November 15 through March 31. This closed

area includes the southeastern U.S. right whale critical habitat, which

is a nursery area for mothers and calves.

Strikenetting in southeast waters is permitted during the high risk

period only if: (1) No nets are set at night or when visibility is less

than 500 yards (460 m), (2) each set is made under the observation of a

spotter plane, (3) no net is set within 3 miles of a right, humpback or

fin whale, and (4) if a whale comes within 3 miles of set gear, the

gear is removed from the water immediately. A distance of 3 miles was

selected because it is believed to allow sufficient time (half an hour)

for gear to be pulled from the water before a whale reached a net. NMFS

believes these measures will minimize the risk of entangling any large

whale.

This rule also requires that all lobster and anchored gillnet gear

be rigged in such a way as to prevent the buoy line from floating at

the surface at any time. All large whales are vulnerable to

entanglement in any line floating on the surface of the water. Right

whales are particularly vulnerable to this entanglement threat, since

they are known to ``skim feed'' by swimming slowly at the surface with

their mouths open.

NMFS is also establishing lists of gear characteristics that are

expected to decrease the risks of entanglement (see below for lists).

Lobster pot gear and anchored gillnet gear used in low risk areas will

be required to have at least one of the characteristics. Similar gear

set in high risk areas are required to have at least two of these

characteristics. There are slightly different requirements for inshore

and offshore lobster fisheries because of the much heavier gear

requirements for fishing offshore. The lists published in this interim

final rule are based on public comments and the recommendations of the

Gear Advisory Group and reflect current general fishing practices.

The main purpose of this measure is to help achieve the long-term

goal by initiating a flexible process of gear modification over the

next 4 years (see discussion under ``steps to achieve ZMRG'' below). To

achieve the short-term goal, NMFS is relying primarily on closures,

disentanglement, and other mandatory gear restrictions, not on the use

of options from the gear lists. The Take Reduction Technology Lists

contain gear specifications that have been shown to be stable in the

water and catch fish, but that represent a reduction in entanglement

risk over other gear that is also currently in use. Many fishermen may

already be using gear that complies with the current list, but some

fishermen will have to modify their gear to comply with this

regulation; hence, there will be a small immediate risk reduction from

this requirement.

This rule also requires that mid-Atlantic drift gillnet gear be

either removed from the water each night or be attached to the vessel.

The purpose of this measure is to reduce the chances that a whale will

encounter gear that is not anchored. This provision is in effect from

December 1 through March 31 of each year, during the time when whales,

primarily right and humpback whales, are most frequently seen in the

mid-Atlantic.

Disentangling a whale can reduce the seriousness of an injury or

prevent death due to entanglement. NMFS continues to commit funds to

support and improve the disentanglement effort to help meet both the

six month and the long-term goal (see discussion under ``steps to

achieve ZMRG'' below).

Steps to Achieve the Zero Mortality Rate Goal

The plan has the realistic potential to reach the 5-year goal by

continually reducing the number of entanglements causing serious injury

and mortality to a level of 10 percent of the PBR level. If the plan

succeeds in reaching 10 percent of the PBR level, this would be

equivalent of achieving the most conservative estimate of ZMRG. The

likelihood of succeeding in reducing such entanglement to 10 percent of

the PBR level depends on many factors. Progress toward the ZMRG is

expected to be achieved primarily through continued improvements to the

disentanglement response teams and through gear research that

identifies appropriate gear modifications that further reduce either

the likelihood or the seriousness of an entanglement. This effort will

only succeed with the willing participation of the fishing industry,

especially in reporting and assisting in disentanglement efforts and in

developing gear that will reduce the risks of entanglement.

Accordingly, the plan emphasizes outreach and education efforts to

share information between NMFS and fishermen, research on gear

modifications, and active involvement of interest groups through the

take reduction team process. This does not rule out the possibility of

further closures if gear modifications and disentanglement do not

appear able to achieve ZMRG.

The steps in this ALWTRP designed to facilitate continued

reductions in entanglements include: (1) A commitment to improve public

involvement in take reduction efforts, including consulting with the

TRT and the Gear Advisory Group and

[[Page 39161]]

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 further gear modification

research; (4) continuing to improve the disentanglement effort,

including encouraging more cooperation from fishermen; (5) prohibiting

``wet storage'' of gear; (6) implementing a gear marking program, (7)

developing contingency plans in cooperation with states for when right

whales are present at unexpected times and places; (8) working with

Canada to decrease entanglements in its waters; (9) improving

monitoring of the right whale population distribution and biology, and

(10) an abbreviated rulemaking process (codified in this document) 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 TRT to review progress and

make recommendations on how to continue to decrease serious injuries

and mortalities due to entanglements. As a first step in that process,

NMFS will convene the TRT in the fall of 1997 to review this plan and

its associated interim final rule. NMFS may modify the plan if it

receives a consensus recommendation from the team to do so. In

addition, NMFS plans to reconvene the TRT in 1998 to review the

progress made during the first 6 months of the plan.

NMFS is developing fishermen outreach and education programs. These

programs will have two main goals: (1) To inform fishermen of the

status of whales, the requirements of the MMPA and this plan and to

improve cooperation with disentanglement efforts, and (2) to exchange

views and solicit advice from fishermen on appropriate gear

modifications for their area or other take reduction methods.

The use of gear modifications to minimize the risks of entangling

large whales will be a key to the long-term success of this plan. As a

first step in that direction, NMFS will require that by January 1998

all lobster and anchored gillnet gear, including sink and coastal

gillnet gear, have some characteristics that reduce the risks

associated with entanglement. Because fishing conditions vary

throughout the Atlantic, NMFS will not require specific modifications

to be applied to all gear at this time. Instead, this interim rule

contains lists of acceptable gear characteristics based on information

received from public comments, including discussions of the Gear

Advisory Group. Vessels fishing in low risk areas will be required to

ensure that their gear has at least one of the listed characteristics.

Those fishing in areas where the risk of entanglement is high (i.e.,

Stellwagen and Jeffreys Ledge and in northern critical habitats during

periods of relatively low right whale use) are required to ensure that

their gear has at least two of the listed characteristics. Because

fishing conditions require heavier gear offshore, for the time being

there are different breaking strengths for offshore and inshore lobster

pot gear.

The lists of acceptable gear characteristics from which fishermen

may select to comply with the regulations in this plan are as follows:

Lobster Take Reduction Technology List

1. All buoy lines are 7/16 inches 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. Weak links may include

swivels, plastic weak links, rope of appropriate breaking strength, hog

rings, or rope stapled to a buoy stick.

3. 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.

4. For gear 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.

5. All buoy lines are composed entirely of sinking line.

6. All ground lines are made of sinking line.

Gillnet Take Reduction Technology List

1. All buoy lines are \7/16\ inches 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 lbs. Weak links may include

swivels, plastic weak links, rope of appropriate breaking strength, hog

rings, or rope stapled to a buoy stick.

3. Gear is anchored with the holding power of a 22 lb danforth-

style anchor at each end.

4. Gear is anchored with a 50 lb dead weight at each end.

5. Nets are attached to a lead line weighing 100 lbs or more per

300 feet.

6. Weak links with a breaking strength of up to 1100 lbs are

installed in the float rope between net panels.

7. All buoy lines are composed entirely of sinking line.

The above 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 published with this interim final rule are determined by

NMFS to be insufficient to reduce entanglement risks. NMFS intends to

seek the advice of the TRT and the Gear Advisory Group, and to seek

public comment, before adding items to the lists.

The Gear Advisory Group also made several suggestions for gear

characteristics that are not included in the lists above. Specifically,

the Group recommended that light-colored line be used, because it might

increase visibility, and that sections of buoy lines be joined with a

splice rather than a knot, because a splice is smoother and is less

likely to snag on a whale. NMFS recommends that fishermen adopt these

techniques, because they may help reduce entanglements. NMFS is not

including these measures on the Take Reduction Technology Lists at this

time, however. NMFS has no scientific evidence that the color of the

line has any effect on entanglements, and, although NMFS believes that

spliced line will generally be smoother than lines with knots in them,

fishermen have developed some knots that are almost as smooth as

splices (in order to pass through the hauler more easily). Knotted line

is also weaker than spliced line and may part more easily if a whale is

entangled in it.

NMFS is also supporting research and development of gear

modifications that may reduce the risk of entangling large whales. The

Gear Advisory Group identified several techniques that might be

effective with further development. NMFS has committed funds this year

to study several of these. NMFS expects to continue to provide funding

for this kind of research in the future. NMFS expects to reconvene the

Gear Advisory Group to review progress on gear research and development

and to continue to suggest future research directions. Note that NMFS

can authorize experimental fisheries to test gear that does not comply

with the gear requirements set forth in this rule.

Since 1984, NMFS has authorized the Center for Coastal Studies

(CCS) disentanglement team to conduct whale rescue in the southern Gulf

of Maine. Since 1995, NMFS has contracted with CCS to expand the

disentanglement effort to other areas of the northeast. A first

response network has been established for most of the Gulf of Maine/Bay

of Fundy and the Georgia/Florida right whale critical habitat area, and

collaborators will be identified in other areas of the northeast. With

increased involvement from the U.S. Coast Guard and Canada's Department

of Fisheries and Oceans, the

[[Page 39162]]

disentanglement network can now respond to entanglements on most areas

of the U.S. east coast and the Scotia/Fundy region. NMFS and the CCS

team have also been working with the State of Maine and the

Commonwealth of Massachusetts to involve the fishing industry in the

disentanglement network by providing information and assisting the CCS

team with reporting and monitoring entanglements. NMFS is also funding

and/or working cooperatively with other groups to expand the current

survey effort to better monitor at-risk areas. These surveys will

increase opportunities for sighting entangled whales, as well as

warning ships of the presence of right whales in an area.

The removal of lost or unused gear from the water will also help

reduce the risk of entanglement. This rule contains a prohibition on

``wet storage'' of lobster pot gear--the practice of storing gear in

the water--through a requirement that gear be hauled at least every

thirty days. (Note that this provision was characterized in the

proposed rule as a 30-day ``inspection'' requirement, a term which

caused confusion.) NMFS does not know the extent of the practice of wet

storage of gear, and solicits comments on the number of persons

affected by this provision.

To further reduce ``ghost gear'', NMFS will notify all Atlantic

fisheries permit holders of the importance of bringing gear back to

shore to be discarded properly, as called for under 33 U.S.C. 1901 et

seq. and the Protocol of 1978 relating to the International Convention

for the Prevention of Pollution from Ships (MARPOL Protocol). In

addition, NMFS, in coordination with the U.S. Coast Guard, will review

regulations currently in place that concern fishing gear or fishing

practices that may increase or decrease the amount of ghost gear to

determine what additional measure may be useful in reducing the

potential for whale entanglement by such gear.

Through the gear marking requirements, NMFS hopes to obtain more

data regarding where entanglements occur and what gear types need

further attention. NMFS will require marks on six categories of gear--

inshore and offshore lobster pot gear, anchored gillnets in northeast

and mid-Atlantic waters, mid-Atlantic driftnet gear and shark driftnet

gear. Because inshore and offshore lobster pot gear have different

requirements, these types must be marked differently.

The gear marking measure is still under review by the Office of

Management and Budget for compliance with the Paperwork Reduction Act,

and it will not become effective until a notice is published in the

Federal Register. Note that this measure will not in itself reduce

entanglements, but may provide useful information for designing future

bycatch reduction measures to achieve ZMRG.

Although NMFS can predict where some right whales will be found at

some times of the year, right whales have been sighted in virtually all

coastal and offshore waters from Florida to Maine. Generally these

sightings are of small, transient groups or individuals. On occasion,

however, larger groups of right whales are resident at times and in

locations that are unexpected, including times when large amounts of

fishing gear may be deployed in the area. Under these circumstances,

the risk of entanglement is higher. For example, all right whale

entanglements in U.S. lobster pot gear where the location was known

occurred either outside critical habitat or outside the peak season in

critical habitat. There may be a number of ways to decrease that risk,

including continuous monitoring of the whales' movements to alert a

disentanglement team immediately in the event that a whale happens to

get entangled. NMFS will work with states and fishermen's associations

to develop quick response networks to these unusual right whale

distribution patterns.

NMFS will continue to cooperate with the Canadian Department of

Fisheries and Oceans (DFO) regarding take reduction efforts for large

whales. NMFS will share data with DFO scientists and will continue to

invite DFO's participation on the Team as a means of promoting

effective bycatch reduction measures for large whales throughout

western North Atlantic waters.

The regulations implemented through this notice contain a section

(Sec. 229.32(g)(2)) that allows the Assistant Administrator (AA) of

NMFS to make changes to the requirements through an abbreviated rule-

making process. The process would allow the AA to modify the

regulations implementing this plan through a notification in the

Federal Register. The purpose of this measure is to allow NMFS to

respond more quickly to make necessary adjustments to the requirements

of the plan. This may be particularly important if necessary to extend

a closure because right whales are still in an area or to open an area

if NMFS determines that right whales have departed early.

Monitoring Strategies

NMFS estimates annual serious injury and mortality rates based on a

5-year period, as a part of its requirement to develop annual marine

mammal Stock Assessment Reports. Expected rates of entanglement during

any 6-month period may vary from the 5-year annual average. This

variation may be most pronounced where the sample size is particularly

small, as is the case with right whale entanglements. Consequently, it

will be impossible to prove within 6 months that the goal of reducing

incidental takes of right whales to below the PBR level has been

achieved. Under some circumstances, however, it may be possible to

prove that the PBR level has not been reached. For example, the PBR

level for right whales is 0.4, if more than two serious injuries or

mortalities incidental to commercial fishing operations are observed

within 5 years after the plan is promulgated, then it will be known

that the PBR goal will not have been achieved.

NMFS will continue to monitor entanglements of all large whale

species. Assessment of the success in bycatch reduction measures will

be based on reports from the NMFS observer program, examination of

stranded whales, abundance and distribution surveys, fishermen's

reports and opportunistic reports of entanglement events. NMFS will

expand field survey efforts to assess population abundance and

distribution, particularly in the Great South Channel. The

effectiveness of implemented take reduction measures may be most

apparent through monitoring the entanglement rate for humpback whales,

since this species has the highest known entanglement rate of the large

whales on the U.S. Atlantic coast. A decrease in entanglements of

humpback whales will be taken as supportive but not conclusive evidence

that the risk of entangling right, fin and minke whales has been

reduced.

NMFS will also continue to gather information on how and where

entanglements occur. For the duration of this plan, NMFS will form a

repository for gear removed from entangled whales.

In the proposed plan, NMFS suggested a gear marking system that was

intended to provide information about where entanglements occur and

what gear is causing the entanglements. Knowing this information would

be important to help devise any further take reduction measures.

However, the proposed system was considered too cumbersome by many

commenters and questions were raised about whether marked gear

retrieved from a whale would determine definitively where that whale

was entangled. Furthermore, some marking of lobster pots, gillnets and

associated surface gear is currently

[[Page 39163]]

required or being considered under Federal or state fishery management

plans for the four groups of fisheries covered by this plan. In this

plan, NMFS intends to implement a simplified gear-marking requirement

as soon as Paperwork Reduction Act approval is obtained from OMB. NMFS

will also consult with State governments, the Take Reduction Team, and

members of the Gear Advisory Group with a view to improving the gear

marking system by 1999.

Fishery Specific Measures

American Lobster Trap/Pot Fisheries

Except for gear set in the exempted areas mentioned above, all

lobster pot 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.

Lobster pot gear is prohibited from 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. From July 1 through March 31, lobster

pot gear set in the Great South Channel critical habitat must have at

least two characteristics from the Take Reduction Technology List. 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 this plan. Lobster pot gear

set in this area must comply with the inshore gear characteristics.

From January 1 through May 15, lobster pot gear may only be set in

the Cape Cod Bay critical habitat if it meets certain criteria. All

lobster pot 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 1100

lb. (2) All pots must be set in trawls of four or more pots. (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 pots

must be made of sinking line. These measures 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 pot 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.

For either critical habitat, if NMFS determines that the right

whales have departed from that area for the season, the AA may allow

lobster pot gear to be set, provided that the gear meets the

requirements for lobster gear set in the Stellwagen Bank/Jeffreys Ledge

area.

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. Note that the boundaries of the

Stellwagen Bank/Jeffreys Ledge Area have been changed from what NMFS

proposed in April. State waters are no longer included, and the

northern boundary has been changed. The new boundaries more accurately

reflect the area where the risk of whale/fishery interactions is high,

based on the frequency of right whale and humpback whale sightings.

In the Stellwagen Bank/Jeffreys Ledge area, lobster pot gear must

always have at least two characteristics from the Lobster Take

Reduction Technology list. Fishermen should be aware that humpback and/

or right whales are present in this area most months of the year.

Entanglements of both species are above the ZMRG. If the gear

modifications are not sufficient to reduce serious injury and mortality

to right and humpback whales to achieve the 6-month PBR goal or the 5-

year ZMRG goal, additional restrictions or closures of certain portions

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 pot 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 only applicable to offshore

lobster fishing because conditions offshore require heavier gear.

However, fishermen using offshore gear are encouraged to use the

inshore standards.

Anchored Gillnet Fisheries

Except for gear set in the exempted areas mentioned above, 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 may be used from July 1 to March 31 in the

Great South Channel critical habitat provided that such gear has at

least two characteristics from the Gillnet Take Reduction Technology

list.

From January 1 to May 15, the Federal portion of the Cape Cod Bay

critical habitat is closed to sink gillnet gear, except that if NMFS

determines that the right whales have departed from that area for the

season, the AA may allow gillnet gear to be set, provided that it meets

the requirements for gillnet fishing for Stellwagen Bank and Jeffreys

Ledge. From May 16 to December 31, gillnet gear set in the Federal

portion of the Cape Cod Bay critical habitat must have at least two

characteristics from the Gillnet Take Reduction Technology List.

Gillnet gear in the Stellwagen Bank/Jeffreys Ledge area (as defined

above for lobster pot gear) must always have at least two

characteristics from the Gillnet Take Reduction Technology List.

Fishers 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 and mortality to right and

humpback whales to achieve the 6-month PBR goal or the 5-year ZMRG

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 33 deg.51' N lat.) must have at least one

characteristic from this list from December 1 to March 31.

Mid-Atlantic Drift Gillnet Fishery

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.

[[Page 39164]]

Southeast U.S. Driftnet 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 driftnet 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 driftnets 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. In addition, shark drift gillnets

must be marked, as directed in the implementing regulations for this

rule, to identify the fishery and region in which the gear is fished.

Other Entanglement Reduction Measures Not Part of 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 also reduce the

risk of entangling right whales. Additionally, area closures for harbor

porpoise conservation are in effect for Massachusetts Bay, the Gulf of

Maine ``mid-coast'' and ``northeast'' areas, and southern New England.

With the exception of the harbor porpoise closure in southern New

England, all of these closures coincide with times that right whales

are also present in the area, further decreasing the likelihood of

entanglement. Effort reduction measures under Framework Adjustment 20

to the Northeast Multispecies Fishery Management Plan are expected to

reduce total sink gillnet effort by 50 to 80 percent. This measure is

expected to also reduce the risk of large whale entanglement associated

with this gear.

New England sink gillnetters that fish ``day trips'' are now

limited in the number of nets they can set. This limit may further

reduce the risk of entanglement of right whales in sink gillnet gear.

Some level of lobster pot gear effort reduction may occur under

gear conflict management measures such as those recommended by the New

England Fisheries Management Council (NEFMC) in Southern New England.

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. Further, the Atlantic States Marine

Fisheries Commission is currently considering reducing effort in the

lobster fishery. Any effort reduction measures implemented for the

lobster fishery are likely to reduce the risk of entanglement of whales

in that gear.

Changes From the Proposed Rule

This interim final rule has been substantially modified from the

rule proposed by NMFS on April 7, 1997. In the proposed rule, NMFS

specifically solicited comments on many of the issues discussed below.

Public comments have clarified several issues presented in the proposed

rule and have substantially shaped this interim final rule. Major

changes have been made to boundaries of affected areas, gear and

marking requirements, and contingency measures. Because the changes

from the proposed rule are so significant, NMFS is issuing these

regulations as an interim final rule to allow comments on this version

of the ALWTRP. Except for the gear marking requirements, this rule will

become effective on November 15, 1997, unless it is superseded by a

notice in the Federal Register prior to that date. The gear marking

requirements will become effective on January 1, 1998 or on the date

that OMB gives approval for this collection of information, whichever

is later. Note that right whales tend to be in Canadian waters from

July until November, so the risk of entanglements in U.S. fishing gear

is relatively low until November 15.

Changes in Boundaries and Area Designations

The Stellwagen Bank/Jeffreys Ledge restricted area is defined in

this rule as all Federal waters in the Gulf of Maine south of

43 deg.15' N lat. line and west of the 70 deg.W long. line. The

proposed rule contained waters where the frequency of right whale

sightings was quite low, especially in state waters. The northern

boundary (43 deg.15' N lat.) was proposed by the TRT and other groups.

North of this line right whale sightings are also quite low. The

eastern boundary remains the same as in the proposed rule.

NMFS has also changed the dividing line between northern and

southern lobster waters to be 41 deg.30' N lat. This allows all waters

south of Cape Cod to be managed on the same seasonal basis, which is

consistent with the usual large whale distribution patterns.

NMFS includes a new boundary in this interim final rule. This

divides lobster waters into inshore and offshore components. The

boundaries of the offshore lobster area are the same as for the areas

sometimes known as Lobster Area III. Because offshore lobster pot gear

is generally heavier than inshore gear, many commenters advised that

the offshore gear have different requirements. In addition, because of

the heavier gear used offshore, which might be harder for a whale to

break, there is a specific marking code for offshore lobster pot gear.

If offshore gear is found to pose a significant risk to whales,

additional restrictions can be imposed.

In response to public comments, NMFS has exempted a number of areas

from regulation that would have been covered by the proposed rule. NMFS

analyzed the overall distribution data for right, humpback, fin and

minke whales. It is clear that these species are rarely found within

the bays, harbors, or behind barrier beaches in the Southeast and Mid-

Atlantic areas. These are areas where right whale sightings are so low

that NMFS believes regulation of fishing activity will have no

practical benefit for right whale conservation. Exempted areas include

all waters landward of the first bridge over any embayment, Long Island

Sound, Delaware and Chesapeake Bays, some coastal areas in the Gulf of

Maine and, in the southeast region, waters landward of the demarcation

line of the International Regulations for Preventing Collisions at Sea,

also known as the 1972 COLREGS line.

Changes to Proposed Gear Modifications

In its April 1997 Federal Register notice, NMFS proposed to mandate

a number of specific modifications to lobster and gillnet gear that

were intended to reduce the risk of entangling large whales. For

example, NMFS proposed to require that buoy lines be made entirely or

mostly of sinking line. It also proposed that buoys be attached with a

weak link and sought comments on whether the breaking strength of that

link should be 150 lb, 300 lb, 500 lb or any other breaking strength.

In addition, NMFS proposed to require a suite of modifications to sink

gillnets, including requiring weak links between nets on both the lead-

line and the float-line.

NMFS has subsequently determined that some of these proposed

modifications would not work under any circumstances. For example,

field testing, since publication of the proposed rule, has shown that

the 150-lb breaking strength would be too weak to keep a buoy attached

to a line under the normal range of working conditions.

[[Page 39165]]

Requiring weak links between both the lead-line and the float-line

would not have allowed gillnetters to haul their nets without high risk

of loss. Both proposed modifications, if implemented, would have

created additional lost gear, thereby perhaps increasing the risks of

entanglement rather than decreasing them.

Other proposed modifications have worked in some areas but would

not work elsewhere where fishing conditions are different. For example,

sinking ground line or buoy lines can work and are used in some places

but cannot work where the bottom is rocky.

Fishing conditions and practices differ widely throughout the range

of this plan. Therefore a uniform application of gear requirements is

not likely to be practical. NMFS has therefore decided that one set of

regulations applying to all areas affected by this plan is not

appropriate. Instead, in this interim final rule NMFS is establishing a

``menu'' of gear characteristics that are expected to reduce the risk

of entanglements, based on the advice of the Gear Advisory Group and

other public comments. Fishermen are required to comply with some of

these characteristics but are allowed to select the characteristic or

characteristics that are most appropriate for their region. This

requirement contributes to achieving the goals of the plan in two ways.

First, some fishermen will need to change their gear immediately;

hence, there will be an immediate risk reduction, although NMFS

believes that this will be only a small contribution. Second, these

lists can be modified over time to help achieve the ZMRG. As new

technology becomes available, it can be added to the list. If items on

the list do not appear to reduce the risk of entanglements, they can be

dropped.

Some of the proposed modifications are still in the development

stage. For example, NMFS suggested that a weak buoy line, when

developed, might substantially reduce the risk of entanglements. Other

concepts for gear development were discussed by the Gear Advisory

Group. NMFS noted in the proposed rule that further research on gear

modifications were necessary, and it committed to funding research on

this topic. NMFS intends to modify the gear ``menus'' when new take

reduction technology is demonstrated to be operational on the water.

Changes to Gear Marking Proposal

The proposal to place identifying marks on gear met with generally

favorable reviews, although a number of requests were made for a

simpler system. There was general agreement that it would be useful to

know what type of gear was entangling whales and where that gear was

set, although several commenters warned that it might be difficult to

interpret data from marked gear. A chief concern was that the proposed

system of marking was too complicated and time-consuming.

In this interim final rule, NMFS implements a simpler, quicker

method of marking gear. The marking system keeps the general concept of

identifying anchored gillnet, lobster and driftnet gear, but it

substantially reduces the number of areas that are to be designated.

This allows the use of only two color marks instead of three. The NMFS

marking system incorporates two specific suggestions made in the public

comment period. First, marking gear with paint is acceptable, provided

the mark is refreshed when faded. Second, there were suggestions that

marking the ground lines between lobster pots would be time consuming

and expensive and the marks would not last long. NMFS has decided to

defer the requirement to mark groundlines and will seek the advice of

the TRT on the value of this measure.

Changes to Lobster Restrictions in Cape Cod Bay Critical Habitat

NMFS proposed a series of gear restrictions for lobster pot gear

set in the Cape Cod Bay critical habitat during the period when right

whales are likely to be present (January 1 through May 15). These were

based on requirements instituted by the State of Massachusetts. Of the

proposed requirements, two are not implemented in this interim final

rule. These are: (1) The requirement that all buoy lines be sinking

line and (2) the requirement that the buoy be attached with a 150-lb

weak link. The purpose of the sinking buoy line requirement was to

avoid having a loop of rope floating in the water column when tides

were slack. (When there is a tidal current, all buoy lines are likely

to be straight.) However, buoy lines made entirely of sinking line rest

on the ocean bottom. They will chafe more quickly than buoy lines with

some floating line at the bottom and are more likely to be caught on

rocks. This requirement would have led to more lost gear. NMFS believes

that the increased gear loss creates a larger risk to whales than the

benefit of avoiding loose line in the water at slack tide conveys.

Therefore, these regulations allow up to one third of the bottom

portion of the buoy line to be made of floating line. This is

consistent with the current requirements of the State of Massachusetts

for this area.

The purpose of the 150-lb breaking strength was to minimize the

chance that a buoy would get caught on a whale. Tests in Cape Cod Bay

have shown definitively that 150 lbs is too weak to keep buoys on

during storms. This requirement would also increase ghost gear. For the

time being, instead of a 150 lb weak link, NMFS will require that all

buoys in the Cape Cod Bay critical habitat have weak links of a maximum

strength of up to 1100 lb. This breaking strength is based on the

advice of the Gear Advisory Group, which believed that a weak link with

a breaking strength of 1100 lb will allow gear to be effectively

deployed under all normal inshore conditions, including some areas

where currents and other oceanic conditions are more difficult that in

Cape Cod Bay. Right whales can exert a pull stronger than 1100 lb,

although the gear attached to the weak link would have to weigh more

than 1100 lb, or be anchored or snag on the bottom for a weak link of

that breaking strength to actually break. If ongoing research shows

that weaker breaking strengths can be used in the Cape Cod Bay critical

habitat without an increase in lost gear, this requirement will be

revised.

Changes to Contingency Closures

NMFS proposed that if four or more right whales are present in an

area for two or more consecutive weeks, that area would be closed to

lobster and gillnet gear until the right whales had left the area. NMFS

does not intend to implement this regulation at this time, although it

will seek the advice of the TRT on whether this would be a useful

measure. There are two reasons for not including this in the interim

final rule. First, fishermen said that if forced to move gear, they

would tend to set it just on the periphery of the closed area. This

would create a denser area of gear around the right whales, increasing

the risk that the whales would encounter gear on leaving the area.

Second, NMFS has not identified a process for closing an area that can

be put in place quickly enough to take into account the movements of

the animals. If NMFS were to decide to close an area 2 weeks after four

or more right whales were seen, it would take at least a week to

publish a Federal Register document after which it could take a week or

more for fishermen to move their gear. Thus, it would be difficult to

close an area on account of unusual right whale movements in a timely

way before the whales moved out of an area. There would be a high

likelihood of closing an area after the departure of the whales. NMFS

would still have authority to take

[[Page 39166]]

emergency measures, including area closures, under the MMPA and

Endangered Species Act if it is deemed necessary for the protection of

the whales.

NMFS initially proposed authorizing a suite of specific gear

requirements which, if used, would allow a person to fish in critical

habitat. NMFS further proposed that if a right whale were entangled in

a critical habitat by such authorized gear, NMFS would close that area.

Because this interim final rule does not authorize any specific gear,

this measure is not included in the regulations. However, if a right

whale is entangled in any gear in any critical habitat during the high

right whale use periods, NMFS will close that critical habitat to that

gear.

Comments and Responses

Over 13,000 comments (including form letters, postcards and

signatures on petitions) were received on the proposed rule. Comments

came from state and Federal agencies, Congressional offices, State

legislature representatives, towns, conservation groups, industry

associations, businesses, fishermen and other private individuals. Oral

testimony was received at twelve public hearings held from Maine

through Virginia.

1. Comments in Favor of Approval of the Large Whale Take Reduction Plan

Comment 1: Numerous letters were received from members of

conservation groups urging NMFS to implement the Large Whale Take

Reduction Plan as proposed. Most of those letters advocated involving

the fishing industry in developing solutions to the entanglement

problem. In addition, several comments were received expressing support

for the flexibility in the proposed rule which would allow NMFS to

respond quickly to the need for increased protection for large whales,

or to relax certain restrictions, and to recognize improvements in gear

technology.

Response: NMFS acknowledges this support of its mandates under the

Marine Mammal Protection Act and will continue to work with both the

fishing industry and other stakeholders to carry out its

responsibilities. The ALWTRP contains measures to mitigate future

interactions with large whales through disentanglement efforts, early

warning monitoring systems, gear research, and outreach efforts that

are designed to implement the best available fishing practices. NMFS

believes these efforts will accomplish the ALWTRP goal while setting in

place the infrastructure to identify and mitigate the causes for

entanglements and actively searching for better gear answers to the

issue. The ALWTRP contains adequate contingencies to protect the

severely endangered species involved while allowing the affected

fisheries to seek to improve their entanglement performance.

2. General Opposition to the Proposed Plan

Comment 2: Many letters and much testimony at public hearings were

received which did not provide comment on any specific measures

contained in the proposed rule but expressed opposition to the plan

itself or to the approach taken by NMFS. One conservation group stated

that the proposed measures for protecting endangered whales are

inadequate to either prevent the extinction of Northern Right Whales or

adequately protect other whale species.

Response: NMFS acknowledges the interest of the public in this

issue and has considered the public's concerns in developing this

interim final rule. The task of preventing the extinction of right

whales and protecting other whales is not solely the responsibility of

this plan, although the NMFS has conducted an ESA Section 7

consultation on this matter that concludes that the ALWTRP is not

likely to jeopardize the continued existence of any endangered or

threatened species, including the right whale. Other measures are in

place, or under development, under the Endangered Species Act and the

MMPA to provide protection to those species and as noted in Response to

Comment #1 above, are explained in the interim final rule and the

Environmental Assessment (EA). NMFS believes this plan initiates the

development of solutions to the large whale entanglement problem to the

full extent possible given the current knowledge of whale biology and

fishing gear technology.

3. Need for Action and Scientific Basis for the Determination of Need

for Take Reduction Measures

Comment 3: Several comments were received questioning the need to

reduce takes of humpback, finback, and minke whales, especially the

need to reduce takes of these species within the first 6 months of the

plan.

Response: The ALWTRP presents a strategy to address this issue, and

has identified two major goals. The first goal is to reduce serious

injuries and mortalities of right whales in fishing gear to below the

PBR level by January 1998. The second 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.

Comment 4: An analysis of offshore lobster fishing effort will

demonstrate that the risk to whales from the offshore lobster fishery

is minimal.

Response: NMFS agrees that the quantity of gear in the offshore

fishery is much less than that in the inshore fishery. However, NMFS

believes that the risk imposed by this fishery is real and that risk

reductions must be achieved. The fishery operates in areas of whale

migration and possible concentration, and entanglements of humpback and

right whales have recently been documented in this gear type. In

addition, it is likely that injuries sustained during entanglement in

this gear type are more serious because the gear is heavier. Since

whales are known to become entangled in the groundlines of lobster pot

trawls, the larger, heavier offshore trawls may pose a greater risk of

injury or death.

Comment 5: A gillnet industry association questions the reasoning

why the U.S. sink gillnet fishery is required: (1) to be considered for

regulatory action under this proposed rule, and (2) to be considered

for excessively restrictive action with regards to gear modification or

closures when there is lacking empirical evidence and science for this

gear type to be involved in incidental estimated serious injury and

mortality exceeding the PBR level.

Response: Although takes of right whales in U.S. sink gillnet gear

were not recorded during the 1991-1995 period chosen for analysis in

developing this plan, the data clearly indicate that takes of humpback

whales and minke whales have been recorded in sink gillnet gear during

that period, and all four whale species have been recorded entangled in

the gear type. The fishery in the U.S. also overlaps distribution of

all four whale species and the potential for takes continue to exist.

Comment 6: There needs to be more accountability for the proposals

in the plan. While it states that the risk of entanglement must be

reduced by 67 percent, the document has been unable, by its own

admission, to offer any indication of the amount of risk reduction

which would occur from the imposition of any one of these proposals.

Response: Because it is not known where or when entanglements

occur, it

[[Page 39167]]

is not possible to quantify risk reductions at this time. Even a two-

thirds reduction in effort by all affected fisheries may not be

sufficient to achieve a two-thirds reduction in entanglements of right

whales if the areas where entanglements occur are not affected. On the

other hand, such huge effort reductions may be much more than

necessary. The measures being implemented are believed to have a

realistic potential of achieving the necessary reductions in

entanglements causing serious injury or mortality. Determining whether

the goals of this plan are achieved can only be made after the fact.

Comment 7: Many comments were received that stated that ship

traffic, not entanglements, is the real problem for the right whales.

One commenter noted that the information available in the Stock

Assessment Report suggests that interactions with fishing gear are just

as responsible for right whale deaths as ship strikes. However, other

available sources of information summarizing data over longer periods,

including reports prepared by NMFS, suggest that collisions with ships

are a greater cause of whale mortalities. Does the information reflect

an increase in the incidence of fishing-related mortalities or is there

simply some statistical anomaly, due to, for example, the small sample

size.

Response: The difference in the two sets of numbers is the

inclusion of serious injuries. NMFS is required to assess and reduce

the number of serious injuries as well as mortalities. Ship collisions

are rarely observed as injuries while injuries from fishery

interactions are commonly observed. Available data suggest that the

level of serious injuries and mortalities due to entanglement is

significant relative to the level due to ship strikes. The 1996 Stock

Assessment Report estimates that from 1991 to 1996 there were 1.1 cases

of serious injury and mortality to right whales from gear entanglements

and 1.4 such cases of ship strikes per year.

Comment 8: One scientist disagreed that the TRT was presented with

the best available data on large whale distribution and abundance

patterns in the Atlantic.

Response: NMFS agrees that it is preferable to have distribution

and abundance plots that are corrected for sighting effort. However,

because such plots were not available at the time of the TRT

deliberations, NMFS maintains that the TRT was presented with sighting

plots that represented the best available data.

Comment 9: One commenter expressed the opinion that NMFS had not

met at least one requirement of the Marine Mammal Protection Act

because the stock assessment reports do not describe the rate of

serious injury and mortality in units of fishing effort. The commenter

presented calculations relative to the amount of gear in the water and

stated that the rate of serious injury and mortality to right whales in

the lobster fishery is approaching a zero mortality and serious injury

rate.

Response: The MMPA does not require entanglement rates only be

expressed relative to fishing effort. This is only one measure. It is

not possible to express entanglement rates relative to a unit of

fishing effort for the lobster fishery because catch-per-unit-effort is

unknown. This calculation is only possible when a systematic sampling

program is available. This is not the case for most large whale

entanglement records. Therefore, NMFS uses the annual rate of

entanglement based on the known events reported from opportunistic

sources. Because the entanglement rate cannot be extrapolated to a

total serious injury and mortality estimate, the known annual rate is

considered to be a minimum. Furthermore, it is the responsibility of

NMFS to assess rates of interaction relative to the PBR of each marine

mammal stock, not to the amount of gear in the water.

Comment 10: NMFS is only picking on fishermen because they are less

able to defend themselves than shipping and military interests and

trying to make the fishing industry the scapegoat for historical

mismanagement of the right whale population or to transfer the fishery

to large corporations or to destroy the Maine economy so that fishery-

dependent communities are forced to close down and move to big cities.

Response: NMFS disagrees. The reason for this action is that

section 118 of the MMPA specifically requires NMFS to produce a plan to

reduce serious injuries and mortalities of marine mammals due to

commercial fishing operations. In other actions, NMFS is carrying out

other aspects of its responsibilities under the MMPA. For example, we

have taken action with respect to civilian and military ship activities

to reduce risks to whales.

Comment 11: The proposed plan does not adequately define or discuss

the PBRs. It is important that the term be defined and the methods of

how it is calculated discussed. Like other scientific parameters, there

needs to be confidence intervals for this metric and a formula given

for calculating the mean and confidence intervals.

Response: The PBR levels for the affected species are given above

(see Current Entanglement Rates and Future Targets). The MMPA defines

PBR as the product of the following: (A) The minimum population

estimate of the stock; (B) one half the maximum theoretical or

estimated net productivity rate of the stock at a small population

size; and (C) a recovery factor of between 0.1 and 1.0. The MMPA does

not specify a confidence interval for the PBR level.

Comment 12: It is unclear why NMFS has chosen to use the minimum

value of 1.2 for the number of right whales taken per year. This number

biases viewpoints, calculations and the resultant management plans

against the whales. In the case of right whales, it is expected that

about one-half to two-thirds of the whales disappear each year without

being sighted. It is likely that some portion of these whale injuries

are caused by fishing activities and have simply gone unreported and

unnoticed. Therefore, takes caused by entanglements could be much

higher than the assumed 1.2. The known gaps in available entanglement

data should be accounted for in making a realistic estimate of takes

caused by entanglements.

Response: NMFS agrees that entanglements could be greater than the

current estimate. However, NMFS cannot extrapolate data such as

entanglement reports, and thus recognizes them as minimum estimates of

interactions, serious injuries, or mortalities. The ALWTRP calls for

enhanced disentanglement efforts, early warning monitoring systems, and

outreach efforts to be implemented that will provide more accurate and

consistent reporting of future such events.

Comment 13: One commenter questioned the differences in

entanglement rates for right and humpback whales in comparing

information presented to the take reduction team and in the proposed

rule with that in the current draft 1996 stock assessment report.

Response: There were a number of inconsistencies between the

documents. This has been rectified by deriving all stock assessment

information from a single source, the MMPA-mandated Stock Assessment

Report. The 1996 Report is now being finalized and is available on

request (see ADDRESSES).

Comment 14: One commenter noted that the proposed rule does not

appear to include serious injury and mortality data from entanglements

in fishing gear for right whales in Canadian waters and stated that

these data must be included

[[Page 39168]]

and assessed against the overall PBR level.

Response: NMFS interprets the MMPA as requiring a reduction in

serious injury and mortality of marine mammals through interactions

with U.S. fisheries. Canadian takes are monitored by NMFS in order to

understand the status of the population and the overall effects of

human-induced serious injury and mortality, but the PBR goal of this

plan does not need to be reduced by such takes.

Comment 15: One whale research group noted that incidental takes of

humpback whales in commercial fisheries are also currently near the PBR

level, despite a paucity of sightings of juvenile whales in the

northeast in the past four years. Previous data indicate that juvenile

whales are those most likely to be seen entangled. If juvenile sighting

levels in the northeast overall return to the levels seen from 1980-

1990, it is possible the PBR level could be exceeded fairly rapidly.

NMFS should plan for what they will do in the event this takes place.

Response: NMFS appreciates the information on juvenile humpback

whales. If the entanglement rate of humpback whales is not reduced

during the course of the implementation of this plan, further

adjustments will be necessary. The available entanglement information

will be reviewed by the TRT during periodic evaluations.

Comment 16: One commenter stated that the description of the fin

whale stock in the proposed rule lacks sufficient detail and

recommended that NMFS elaborate on this stock assessment and include

the PBR estimate for this stock in the final rule.

Response: NMFS has included the PBR estimate for fin whales from

the 1996 Stock Assessment Report. Further information is available in

the Stock Assessment Report.

Comment 17: Minke whales, because of their smaller size and lower

energetic requirements, are more likely to be found outside major

identified whale concentration and gear modification areas, including

inshore waters. As such, their protection from the right whale measures

might be lower than that for other species.

Response: NMFS agrees. However, this plan institutes some measures

in all regulated waters, including waters outside right whale critical

habitats and other areas which have high concentrations of large

whales. Minke whales do occur in areas where more stringent measures

are being required. Therefore, some protection is expected for minke

whales through this plan. Note that the entanglement rate of minke

whales appears to be substantially below the PBR level for this stock.

No reduction is necessary in the rate of serious injury or mortality of

minke whales to meet the 6-month PBR goal, although some bycatch

reduction may be necessary to achieve the ZMRG.

Comment 18: There are three hundred right whales now known to

exist; the sustainable goal is 6,000; at which time the incidence of

right whale/gear conflicts can reasonably be projected to be twenty

times the current rate, which will seriously impact on fixed gear

fishermen, especially trap and pot fisherman who will be subject to

regulation by the ALWTRP.

Response: NMFS agrees that the rate of interaction could increase

when a marine mammal population increases. However, if a stock

increases substantially, the PBR level would also increase. Therefore,

the rate of interaction relative to the stock's PBR would not

necessarily increase.

Comment 19: The proposed conservation measures are useless and not

founded on scientific fact or analysis. This was proven through the

entanglement of a northern right whale just prior to May 20, 1997, when

the proposed management measures were already in effect as implemented

emergency regulations. This whale was identified as one seen earlier on

February 24, 1997, in Cape Cod Bay and not entangled. The irrefutable

conclusion was that this whale became entangled after February 24,

1997, in fishing gear deployed in the northeast under NMFS emergency

regulations. These regulations did not work because they were too

little done, too late.

Response: The emergency regulations were only effective in right

whale critical habitat in Cape Cod Bay during that period. NMFS is not

aware of any documentation either that the right whale entanglement

occurred in Cape Cod Bay or that the gear involved was from any

fisheries deploying gear in Cape Cod Bay. Furthermore, the time elapsed

between the two sightings (approximately 51 days) indicates that the

whale could have traveled some distance in the interim. Information

from satellite tracking indicates that right whales are capable of

traveling from Maine to New Jersey and back in 3 weeks.

4. Marine Mammal Protection Act Sections 101 and 118, and the Take

Reduction Team Process

Comment 20: On August 31, 1995, a NMFS 101(a)(5)(E) determination

stating no allowable takes of fin, humpback, northern right, and sperm

whale species requires that the ALWTRP achieve that goal. NMFS denial

at that time to issue any small take permits or exemptions to allow

entanglements of these species in fishing gear only underscores the

necessity for the ALWTRP to work and prove itself. The ALWTRP must

significantly and demonstrably prove that it will reduce entanglements

to levels required under Section 118 of the MMPA. The August 31, 1995,

finding would then require actions be taken to eliminate this risk to

the whale. By proposing untested gear modifications and only limited

seasonal closures, the ALWTRP limited restrictions fail to do so by

allowing for, and in fact, assuming entanglements will continue to

occur. Therefore, reliance on gear modifications and limited closures

creates a plan that does not afford the recovery of northern right

whales or other marine mammals, and creates a violation of NMFS's own

August 31, 1995 finding, Section 118 of the MMPA, and the Section 9

Take Prohibitions of the ESA.

Response: The purpose of the ALWTRP is to ``assist in the recovery

or prevent the depletion of each strategic stock.'' It is intended to

reduce the likelihood of a take; it should not be viewed as authorizing

any take of endangered species under the ESA. NMFS believes the

closures, surveillance and disentanglement efforts, gear modifications,

outreach and other aspects of this plan have a realistic potential of

achieving the goals of the MMPA in the required time frame. If the

goals are not achieved, NMFS will seek the advice of the TRT on next

steps.

Comment 21: Why is NMFS waiting until now to deal with this issue

if the MMPA has been a law since 1972? NMFS is only responding to an

artificial deadline.

Response: The take reduction plan process was initiated with

passage of the 1994 amendments to the MMPA. The final regulations

implementing Section 118 of the MMPA were not published until August

30, 1995. The Atlantic Large Whale Take Reduction Team was established

in August 1996. Once the team was established, a rigid timetable

prescribed in the MMPA was set in motion.

Comment 22: Several comments were received questioning the

placement of the lobster pot fishery in Category I on the MMPA List of

Fisheries. Some commenters believed that NMFS had only put the fishery

in Category I because of an entanglement of a right whale in Canadian

gear.

Response: NMFS has several records of entanglements that have

occurred in the lobster fishery and as such, believes that the fishery

is appropriately

[[Page 39169]]

categorized. No records of entanglements of whales in Canadian gear

were used to classify the fishery.

Comment 23: Several comments were received in objection to flaws in

the take reduction team process which included: (1) Insufficient time

frame to deal with the broad scope of unfamiliar issues, (2)

insufficient data on the whale entanglement problem, (3) lack of

systematic and comprehensive facilitation at meetings, (4) inconsistent

guidance from NMFS regarding the scope of the charge to the team and

the nature of acceptable take reduction recommendations, and (5)

arbitrary decision by NMFS to end the take reduction team deliberations

prematurely.

Response: NMFS acknowledges this critique of the take reduction

team process, which was received largely from TRT members, and hopes

that the experiences of the TRT members and the agency during the

promulgation of the proposed and interim final rules will help to

increase the productivity of the TRT process in the future.

Comment 24: The basis of the decision used to support this

rulemaking activity should be formally brought before the TRT. The

Administrative Procedures Act is specific in its requirements on

rulemaking, and the record of information necessary to avoid

``arbitrary and/or capricious'' decision making. NMFS did not follow

the recommendations of the team it assembled to study the problem of

whale take reduction. In addition, NMFS admits that it will not be able

to determine if its proposed regulations will achieve the goal of

reducing incidental whale deaths. Accordingly, since the proposed rules

are not based upon available scientific data, and because NMFS does not

have the ability to modify its decision based upon observable data

collected after it implements the proposed rules, the only rational

conclusion is that NMFS is acting in an arbitrary and capricious manner

in advancing the proposed rules. How can rules go forward with

reference to gear restrictions if NMFS has not conducted any detailed

assessment of gear technology?

Response: Section 118 of the MMPA sets forth strict guidelines for

implementing a take reduction plan. Despite the fact that a consensus

plan was not provided by the TRT, NMFS is mandated to implement a plan

based on its own findings and available data within the timetable

prescribed by the MMPA. NMFS has considered all of the deliberations of

the TRT in deciding what should be included in the interim final rule.

In addition, NMFS convened the Large Whale Gear Advisory Group in early

June and received additional input from the fishing industry. Precisely

because gear modification requirements as contained in the proposed

rule had not been fully tested in all areas under all operating

conditions, NMFS has decided to reduce or eliminate many of those

requirements unless or until there is more evidence that the gear

modification in question has a reasonable chance of reducing the impact

of entanglement without unduly compromising the ability of a fishing

vessel to operate its gear. The measures in the interim final rule are

based on the best scientific data available and are reasonably

calculated to result in a reduction in fishing gear interactions and to

meet MMPA objectives. Members of the public will have the opportunity

to further comment on this rule because it is being published as an

interim final rule. NMFS has the opportunity to modify this plan based

on observable data on entanglements, which it will collect during the

implementation of this rule. NMFS will reconvene the TRT to review the

effectiveness of this rule, based on those data, and to provide

additional recommendations.

Comment 25: There needs to be a clear definition of ``serious

injury.'' Even the best designed breakaway gear could result in line or

net fragments remaining on the animals, or within a whale's mouth.

These fragments might eventually cause injury. Without a clear

definition of ``serious injury,'' the industry remains vulnerable to

closures even if fishermen develop and accept radical gear

modifications.

Response: NMFS agrees. On April 1-2, 1997, NMFS held a workshop to

receive advice from experts on developing a system to assess serious

injury. NMFS intends to publish draft guidelines for determining

serious injury in the fall of 1997. For additional information, see

description above.

Comment 26: Several comments were received urging NMFS to move

quickly toward adopting a final quantitative definition for ZMRG.

Response: NMFS issued a proposed definition for the ZMRG, which has

subsequently been reviewed by a panel of population biologists. Based

on their recommendations and public comment, NMFS is currently

preparing the final rule outlining the quantitative definition and

expects to publish that rule in August 1997.

Comment 27: Since any adopted ALWTRP, along with its implementing

regulations, amounts to a de facto permit to take whales through

entanglement, NMFS should not allow any said regulations and plan to be

implemented until a sufficient monitoring program has been adopted and

funding guaranteed that can detect when any entanglement of a northern

right, and other endangered whales, has occurred. This conservation

group also requests that NMFS detail the ALWTRP's monitoring program

and certify its effectiveness and commitment for its funding, before

adopting the ALWTRP and its implementing regulations.

Response: NMFS is mandated to implement a ALWTRP within the time

period prescribed in the 1994 amendments of the MMPA. The ALWTRP and

its implementing regulations are not intended to permit the taking of

whales entangled in fishing gear. The ALWTRP and implementing

regulations establish measures designed to reduce the likelihood of

entanglements and mitigate the damage caused by entanglements to below

PBR levels. All applicable take restrictions remain in effect. Further,

monitoring will be on-going activity and, if necessary, the ALWTRP can

be modified to address any appropriate circumstances.

Comment 28: The MMPA requires the Secretary of Commerce to consider

the effect of regulations on ``the economic and technological

feasibility of implementation.'' (16 U.S.C. 1373(b)(5)). In presenting

the proposed rules, the Secretary has failed to comply with the express

requirements of the MMPA. Economic considerations of a fishery are to

be taken into account under the MMPA, including not only development of

a long-term goal under section 118(f)(2), but also the short-term PBR

standard, as defined and applied in the Act. In the PBR standard, the

Act implicitly acknowledges that any attempt to achieve a ``true zero''

figure is too costly given the economic considerations relevant to the

cost of avoiding the ``improbable situation'' of incidental mortality

or serious injury caused by commercial fisheries. In the development of

a PBR value, there is a clear recognition that the expenditure of

unlimited resources towards the avoidance of a single marine mammal

take is unacceptable.

Response: Section 118 (16 U.S.C. 1387) of the MMPA, not Section 103

(16 U.S.C. 1373), governs the promulgation of the interim final rule.

Nevertheless, NMFS is required to consider the economic and

technological feasibility of implementation. This was accomplished in

the Environmental Assessment and the Regulatory Flexibility Analysis.

The final rule has

[[Page 39170]]

been substantially changed in part due to public comments on the

economic and technological feasibility of the proposed rule. NMFS

disagrees that the calculation of the PBR level requires that economic

considerations be taken into account. NMFS acknowledges that the MMPA

requires that in implementing measures to achieve incidental take

levels approaching zero mortality and serious injury rates, it must

take into account the economics of the fishery, among other

considerations. As discussed above, such economic considerations have

been considered in developing this rule.

Comment 29: The proposed rules will cause an increase in the number

of vertical lines used by lobstermen in Maine. An increase in the

number of vertical lines would lead to an increase in the incidents of

Atlantic whales becoming entangled in lobster gear, thus resulting in a

greater number of incidental deaths of Atlantic whales. Accordingly,

since NMFS's proposed rules would increase the number of Atlantic whale

deaths, the implementation of the regulations would violate the ESA by

effectively taking an endangered species. Even if NMFS were to argue

taking of Atlantic whales, there can be no question that the

regulations would add significantly to the endangerment of the right

whale population.

Response: The interim final rule is substantially changed from the

proposed rule. The interim final rule has eliminated requirements that

arguably could have resulted in an increase of vertical lines used by

lobster fishers in Maine.

Comment 30: What is the definition of U.S. vessels? Do MMPA

regulations apply to vessels that do not have Federal permits or to

vessels in state waters? Does Section 118 apply only to commercial

fishing vessels? Commercial fisheries licensed and regulated by state

governments in areas under their state jurisdiction are not

``commercial fisheries'' as used in Section 118. It is unlawful for

NMFS to consider the taking of marine mammals by state fisheries to be

allowed any of the take exemptions provide under Section 118. Only

federally licensed and regulated marine fisheries are regulated by

Section 118 of the MMPA. The NMFS here attempts to regulate state

marine fisheries out of a political desire to protect the state

fisheries from the enforcement of the prohibition of the Endangered

Species Act and the MMPA for their entanglement of whales in their

fisheries operations.

Response: The MMPA grants legal authority to NMFS to regulate any

vessel allowed to engage in commercial fishing in all U.S. waters,

including both state and Federal waters. This interim final rule,

promulgated under authority of the MMPA, applies to any person or

vessel in the fisheries and areas encompassed by the rule, regardless

of whether the person or vessel has a Federal permit, and regardless of

whether the person fishes exclusively in state waters, unless otherwise

specified in the rule. The MMPA's legal authority applies without

regard to whether a fishery occurs in state waters or Federal waters.

Section 118 of the MMPA does not make a distinction between Federal or

state fisheries but applies to any fishery that interacts with marine

mammal stocks.

5. Comments on Geographic Scope of Regulations

Comment 31: One conservation group requested that NMFS require in

the ALWTRP, and implementing regulations, the elimination of all

vertical lines in lobster gear and complete banning of gill nets, both

fixed and drift, in the northeast.

Response: NMFS disagrees that measures of this severity are

necessary to meet either the initial PBR goal, or the long term goal.

Comment 32: Numerous comments were received objecting to what

appeared to be ``one-size-fits-all'' regulations for huge areas and

requesting that measures be fine-tuned for different geographical

areas.

Response: In acknowledging the comment, NMFS has devised a system

of choosing 1 or 2 options from separate gear modification lists for

lobster pot gear (with specialized options for inshore and offshore

gear) and gillnet gear that allows fishers the flexibility to choose

gear modifications appropriate for their region.

Comment 33: Comments were received regarding both the need to

implement restrictions equally from the southernmost points of the

migratory pathway up through the northernmost points up in Canada, as

well as questioning whether protective measures were necessary in

various areas along the U.S. East Coast because of an apparent lack of

right whale sightings in those areas.

Response: Because fishing operations are tremendously diverse and

variable, it is not possible to require similar modifications in every

area. Furthermore, the measures in this plan must address entanglement

of humpback, finback, and minke whales as well as right whales.

However, NMFS does not believe it necessary to require gear

modifications where there is no clear overlap between whales and gear.

This interim final rule considers those comments and establishes a plan

that covers the full range of the species (Florida to Maine) while

exempting certain near-shore, shallow areas where whales do not overlap

with gear. Therefore, the plan adequately addresses all areas which

represent significant overlap between the fisheries and whales

considered in the large whale take reduction plan.

Comment 34: One conservation group supported the need for gear

modification of lobster gear as described for use in the Stellwagen

Bank/Jeffreys Ledge area, but felt that the area was inappropriately

defined. Requirement for these types of gear modifications extending to

the beach and northward to a point north of where the bulk of right

whales sightings have occurred seems unduly restrictive. Another

commenter supported the definition as proposed.

Response: Based on examination of whale sighting information, the

definition of the Stellwagen Bank/Jeffreys Ledge (SB/JL) area has been

modified in this interim final rule. The northern boundary has been

changed from 43 deg.30'N lat. to 43 deg.15'N lat. to reflect whale

concentrations, and the area only relates to Federal waters to reflect

the lack of near-shore whale sightings. It should be noted that the

waters no longer included in the SB/JL area are not exempted, but are

part of the other northeast waters area which require certain gear

modifications.

Comment 35: NMFS intends to include all state and Federal waters.

It would be better to allow States to address this issue as needed in

their waters. The Commonwealth of Massachusetts, which has a critical

habitat within its waters, already has a plan on line for that area.

The State needs to be able to make adjustments and improvements in a

timely fashion, which it can do as needed. This would be difficult if

Federal rules are in the way for the same area.

Response: NMFS is aware of the difficulties of having both state

and Federal regulations in the same area. The Federal Government has

the responsibility of implementing the MMPA. However, NMFS intends to

work actively with the Commonwealth of Massachusetts, with which NMFS

has a cooperative agreement under the Endangered Species Act, to ensure

that both sets of regulations are consistent and responsive. The

requirements in this interim final rule mirror the current regulations

of the Commonwealth.

Comment 36: Many comments were received stating that the 41 deg.N

lat. line boundary designation used to separate

[[Page 39171]]

the lobster fishery appeared to be arbitrary and created problems in

southern New England, particularly western Long Island Sound.

Response: NMFS has moved the line north to 41 deg.30'N lat. and has

exempted certain near-shore waters, including Long Island Sound.

Comment 37: As a portion of the migratory route of the northern

right whale is in the waters of Canada, Greenpeace urges the NMFS to

commence bilateral talks with Canada to encourage the implementation of

similar fishing restrictions by Canada in order to protect the northern

right whale throughout its migratory range.

Response: NMFS agrees with the importance of working with Canada to

reduce marine mammal bycatch problems in both countries. Bilateral

discussions with Canada are ongoing. The Northeast Implementation Team

has DFO as a member to consider recovery action for both right and

humpback whales. Canada will also remain an advisor to the Large Whale

TRT and thus be part of that process. The Regional Administrator meets

regularly with Canada and other counter parts on issues of regional

importance of which marine mammal issues are always a part. NMFS will

forward this plan to DFO officials and urge Canada to take similar

steps.

6. Comments on the Process

Comment 38: One commenter urged that the emphasis be shifted to

those measures that are measurable and more likely to succeed without

jeopardizing the industry. Above all, the commenter urged NMFS to

immediately invest more resources for surveillance and monitoring to

increase the likelihood of detecting the rare entanglement.

Surveillance and monitoring will provide critically important data

regarding right whale biology and movements, and information needed for

stock assessments.

Response: NMFS intends to continue and expand the surveillance in

the New England Early Warning System (EWS) instituted in January 1997.

NMFS will have access to additional information on scarification

analysis and population biology once results of studies that are

already underway or completed are available. We will be working with

the States and USCG on ways to increase disentanglement efforts,

monitoring systems, and outreach and education programs designed to

determine where whales and fishing gear overlap on a timely basis.

Comment 39: The State of Maine recommended that the Take Reduction

Plan should be implemented as an interim plan for one year.

Response: The MMPA directs NMFS to publish a 5-year plan;

therefore, a 1-year interim plan would not meet the standards in the

MMPA. However, the plan is being published as an interim final rule

allowing a further public comment period, and calls for the phasing in

of many of the gear requirements. Furthermore, the plan will be

reviewed periodically in consultation with the TRT and adjusted as

necessary.

Comment 40: Maine proposes that a Coordinator position for a Whale

Response team be established. This position will be contracted with the

Center for Coastal Studies, Provincetown, MA, and funded in full by the

NMFS. This position will have three primary areas of responsibility:

Outreach and Education, Surveillance/Sighting reporting, and First

Response and Disentanglement.

Response: Although NMFS cannot guarantee that it can contribute

funds for such a position, it will be working with the States and USCG

on ways to increase disentanglement efforts, monitoring systems, gear

research and outreach and education programs and will be coordinating

these efforts with the States.

Comment 41: Several commenters requested that NMFS hold additional

public hearings, with an increased level of advertisement, because

adequate notice was not given for the hearings that were held. One

commenter also noted that the first round of public hearings were held

prior to the availability of the economic analysis data and

recommendations of the Large Whale Gear Advisory Group. Another

commenter requested that hearings be held after gear specifications are

finalized.

Response: NMFS held 12 public hearings and extended the comment

period to obtain more public input. In addition, NMFS convened the Gear

Advisory Group specifically to gather more advice on the difficult

issue of gear modifications. Therefore, NMFS believes that adequate

notice of the public hearings was given as evidenced by the large

turnout at many of the public hearings, and that every opportunity was

given for public comment and input to be provided to this

administrative process even for those who did not participate in the

first round of public hearings. NMFS is taking public comment on this

interim final rule prior to its effectiveness. NMFS will attempt to

ensure maximum public participation in all future deliberations

concerning the Take Reduction Plan and its implementing regulations.

Comment 42: The proposed rule has caused fishermen to become

unwilling to assist in efforts to save whales. The proposal will

alienate fishermen. NMFS needs the cooperation of fishermen for a take

reduction plan to work.

Response: NMFS agrees that cooperation of the fishing industry is

essential. NMFS has substantially modified the proposed rule in

response to the public's concerns to stimulate continued industry

cooperation and participation in solving the problem.

Comment 43: NMFS rulemaking authority under MMPA should not provide

a basis to relieve NMFS of concurrent federal responsibilities as

mandated under provisions of the National Environmental Policy Act of

1969 (NEPA-42 U.S.C.A. 4321 to 4370D) and the Administrative Procedures

Act (APA--5 U.S.C.A. Chapter 5).

Response: NMFS has fully complied with NEPA and the APA.

Comment 44: One commenter requested that before any implementation

of the final rule, NMFS provide documentation of compliance with the

provisions of the Regulatory Flexibility Act and the Small Business

Growth and Administrative Accountability Act.

Response: NMFS has complied with all applicable law. (See the

Classification section of this rule).

7. Gear Marking

Comment 45: The proposal to place identifying marks on gear met

with generally favorable reviews. There was general agreement that it

would be useful to know what type of gear was entangling whales and

where that gear was set, although several commenters warned that it

might be difficult to interpret data from marked gear. A chief concern

was that the proposed system of marking was too complicated, too costly

and time consuming. Also, many comments were received stating that

marking ground lines were too costly, time consuming and the marks

would not last long because of chafing.

Response: NMFS agrees that there is great value in marking gear,

for it will eventually help document where and in what fishery

entanglement are occurring. However, NMFS also recognizes that there

are many unanswered questions concerning the accuracy of the data that

can be obtained and the technology involved with marking gear. As a

result of the these concerns, the interim final rule calls for a

simpler, quicker method of marking gear that will keep the general

[[Page 39172]]

concept of identifying anchored gillnet, lobster and driftnet gear, but

it substantially reduces the number of areas that are to be designated.

Also, NMFS has decided to defer implementation of the requirement to

mark groundlines and will seek the advice of the TRT and the Gear

Advisory Group.

Comment 46: Several commenters stated that Canadian gear should be

marked.

Response: NMFS does not have authority to require marking on

Canadian gear. Information on the U.S. marking system will be provided

to Canadian managers for their information in considering a system.

Canada already requires some marking of gear, such as lobster trap

tags.

Comment 47: In order to determine if whales are endangered by Maine

fishermen, all lines should be marked by a color-coded piece of twine

no less than 6'' long attached within 6' of the buoy or marker. The

state lobster fishery is divided into seven in-shore zones and seven

off-shore zones. Each fisherman should mark their gear with the color

code assigned to the area in which they are fishing.

Response: NMFS acknowledges this suggestion and will discuss this

with the TRT, Gear Advisory Group, and the state of Maine.

8. 30-Day Inspection Requirement

Comment 48: Numerous comments were received questioning the

feasibility of requiring all fishing vessels to bring their gear to

shore for inspection every 30 days and the capability of NMFS to

enforce such a measure.

Response: The proposed regulation was widely misunderstood. The

intention was to eliminate the practice of ``wet storage'' of gear by

requiring that all vessels tend all their gear at least once every 30

days. The provision has been clarified in this rule.

9. Comments on Closures and Effort Reduction Measures

Comment 49: One conservation group supported NMFS emphasis on gear

modification as a major means of reducing the severity and number of

entanglement events on the following grounds: The only way to be sure

that a whale will not become entangled in fishing gear is to remove

interacting gear from the water. However, because of the low

entanglement rate, uncertainties as to where entanglements actually

occur, and the whereabouts of most of the right whale population during

most of the year, a mitigation strategy based on fishing closures seems

insupportable. The exception to this would be designated critical

habitat areas during high use times (as proposed by NMFS). However,

measures such as the closure of critical habitats are, by themselves,

insufficient.

Response: NMFS agrees with this approach particularly since

measures in the Large Whale Take Reduction Plan are intended to reduce

takes of humpback, finback, and minke whales as well as right whales.

Comment 50: The Marine Mammal Commission recommended that: (a) the

proposal to close Cape Cod Bay to gillnet gear during the area's peak

right whale season (1 January through 15 May) be expanded to include

lobster gear, which is now used only at extremely low levels at that

time of year; and (b) the proposal to close all of the Great South

Channel critical habitat to lobster gear and most, but not all of that

area to gillnet gear during the area's peak right whale season (1 April

through 30 June) be changed to include the ``sliver area'' within the

critical habitat that NMFS proposed to exclude from the closure for

purposes of gillnet fishing. Eliminating entangling gear at times and

in areas that right whales are known to be present will not only reduce

entanglement risks for this species, but also will assure that fishing

effort at those critical times does not increase in the future.

Response: NMFS believes that the current plan will reduce serious

injuries and mortalities of large whales to below the PBR levels, and

therefore does not believe this step is necessary at this time.

However, NMFS will consider it in future deliberations and will urge

the TRT to discuss these options as steps to continue progress toward

ZMRG.

Comment 51: The most effective management measure for the Studds-

Stellwagen Bank Sanctuary would be closure during the months of January

through April or May, with a contingency for longer closures when the

whales remain in the area, as they did in 1986. However, it is also

recognized that the Sanctuary, because of its considerable observer

effort, history of entanglements, and proximity to trained

disentanglement teams could be a very appropriate site for testing

fishing gear modified to reduce the threat of entanglement, provided

that appropriate safeguards are put in place to insure that if an

animal becomes entangled in modified gear, disentanglement teams could

be deployed to free the animal from that gear. Therefore, perhaps

somewhat paradoxically, closure may not be in the best interest of the

long term recovery of either right whales or humpbacks.

Response: NMFS appreciates the understanding of the complexity of

this issue.

Comment 52: One commenter felt that the proposed time-area closures

did not address the actual risk to the whales, because they ignored the

fact that whales are often found in the critical habitats during other

times when the level of fishing effort in the area is substantially

greater. The commenter recommended a year-round ban on all fishing in

critical habitat or in marine sanctuaries. Another commenter suggested

that the Jeffreys Ledge area be closed to fixed gear to reduce

entanglement risk.

Response: NMFS agrees that in the Gulf of Maine there is a year-

round risk to large whales from fishing gear and that critical habitat

and the Stellwagen Bank/Jeffreys Ledge area are of higher risk than

other waters and should be treated more carefully. However, NMFS does

not believe that year-round closures are required. During the summer

months in the Cape Cod Bay critical habitat and in the Stellwagen Bank/

Jeffreys Ledge area, the opportunities are particularly good for

sighting entangled whales and for getting a team out to disentangle a

whale, so risk is not necessarily a direct relationship to the number

of lines and whales in an area. NMFS will forward the commenter's

suggestion to the TRT for further consideration.

Comment 53: Several commenters indicated that they did not support

area closures until more information is available about the

effectiveness of gear marking and the impact of using modified gear.

Response: NMFS maintains that closures in high risk areas for right

whales are still necessary at this time and that the need to protect

the species cannot wait for more information from gear marking and

modified gear use.

Comment 54: One commenter concurred with the proposed area of

closure of Sebastian Inlet, FL, to Savannah, GA, from shore out to

80 deg. W long., but recommended the area north of Sebastian Inlet

remain closed from November 1 through April 15.

Response: An Early Warning System is in place to reduce ship

strikes of right whales off the coast of Florida and Georgia. Daily

surveillance flights are used to locate whales in the area, and any

whale sightings are transmitted to warn vessels transiting the area to

keep a close look-out for the whales. These daily reconnaissance

flights are currently conducted by The New England Aquarium from

December 1 through March 31 and have provided detailed information on

whale

[[Page 39173]]

abundance and distribution in the areas and times covered. The Georgia

Department of Natural Resources surveys coastal waters off Georgia for

right whales prior to the December start of the EWS in the SEUS. Very

few whales have been recorded in the area before late November or after

mid-March. Therefore, NMFS proposes to close this area from November 15

through March 31.

Comment 55: A net ban put into place in Florida has improved the

health of the ecosystem in marine waters there. This would also help

the whales if such a ban were put into place where the whales exist.

Response: NMFS has proposed to restrict the use of certain types of

nets in areas considered high use areas by right whales off the coast

of Florida and Georgia. It is expected that these restrictions will

reduce the potential for entanglement of large whales in fishing gear

in these areas.

Comment 56: Several commenters stated that NMFS did not recognize

the legitimacy and timeliness of fishing effort control measures being

considered in other plans as effective, logical whale entanglement risk

reduction measures. Suggestions were provided for expansion of the

vessel buy-back program to include Category I fisheries, moratoria on

new entrants into the fisheries of concern, trap limits, gillnet caps,

and buoy caps.

Response: NMFS acknowledges that other efforts to control gillnet

and lobster fishing effort may be beneficial in reducing entanglements

(see section on ``other entanglement reduction measures not part of

this plan''). However, the MMPA requires that NMFS produce a plan to

reduce serious injuries and mortalities to below the PBR level within 6

months. NMFS cannot plan on the completion of any of these other effort

reduction measures within that time frame, although they may be useful

in achieving the long-term goal of the plan.

Comment 57: The State of Maine was concerned that NMFS, while

acknowledging that current and anticipated fishery management effort

control measures will significantly reduce likelihood of an

entanglement of whales, would proceed to propose the rule subject to

this proceeding without first ascertaining the degree to which

entanglement is reduced by the ancillary management measures above.

Response: The MMPA set a strict timetable for producing a draft

plan, which was developed based on the information available in the

1996 Stock Assessment report. That report shows that current measures

have not yet reduced bycatch to below the PBR level. While the measures

referred to by the State of Maine are expected to help achieve the

ZMRG, they cannot be counted on to achieve the 6-month goal. There are

currently no effort reduction measures in the lobster fishery for both

state and Federal waters though they have been under discussion for

several years and strongly advocated by NMFS.

Comment 58: The offshore lobster industry recommended that

Groundfish Management Closure Area I be similarly closed to fishing

with lobster gear that poses a threat of entanglement to whales from

April through June as a means to avoid the development of a lobster

fishery in close proximity to the Great South Channel Critical Habitat.

Response: Except for the portion of Groundfish Management Closure

Area I that lies within the Great South Channel critical habitat, there

is little evidence that an additional closure is needed at this time,

since right whales are rarely seen in the area proposed to be closed.

However, NMFS will ask the TRT to discuss this option.

Comment 59: A gillnet industry association recommended that NMFS

close the critical habitat area east of the LORAN line with a northwest

boundary at 13710/43950 and a southwest boundary of 13710/43650 to all

gillnetting and lobster gear from March 1--May 31.

Response: NMFS appreciates this suggestion. As with the closure

proposed by the lobster industry of Groundfish Management Area I, this

measure does not seem necessary at this time, but could be useful in

the future if adjustments to the ALWTRP are determined to be necessary

to meet ZMRG.

Comment 60: Discussion in the proposed plan indicates that the

rationale for excluding the sliver area from the proposed Great South

Channel spring gillnet closure is that only three percent of the

historical right whale sightings in the critical habitat have occurred

in the sliver area. It also notes that, unlike lobster traps that would

be excluded from the sliver area in spring because of their potential

to entangle whales, gillnets must be tended regularly. The statement

implies that this would significantly reduce entanglement risks

compared to lobster traps, presumably because of a greater likelihood

of detecting and avoiding whales. Finally, the discussion notes that

the area is economically important to the sink gillnet fishery. Data

and analyses in support of these points are not provided and, in some

cases, the conclusion seems questionable.

Response: Data on where whales are entangled and what factors

reduce the risk of entangling whales are scant. It is not possible to

demonstrate conclusively in advance that the NMFS risk assessment is

correct. NMFS will monitor this situation closely, including having

regular surveys in this area throughout the high right whale use time.

NMFS will present the survey data and entanglement data to the TRT for

its review.

Comment 61: The Marine Mammal Commission noted that the sliver area

excluded from the closure has a higher proportion of right whale

sightings than other parts of the right whale critical habitat that the

NMFS proposes to include in the closure.

Response: NMFS agrees that there are other areas that could be

excluded from the closure on strictly biological grounds. However, the

gillnet industry has only expressed interest in the sliver area. NMFS

will continue to monitor the sliver and other areas to determine if

other measures are necessary.

10. Dynamic Management

Comment 62: The Commonwealth of Massachusetts supports

surveillance-based management. For example on May 7, 1997, the

Massachusetts Division of Marine Fisheries suspended gear restrictions

within the Cape Cod Bay critical habitat nine days prior to the May 16,

1997, scheduled date, because whales were well-documented to have

departed the area. NMFS is urged to establish a process where changes

to the regulations or actions taken under a surveillance-based

management plan could be enacted without inordinate delays.

Response: NMFS has the flexibility to lift the closure or other

restrictions if warranted based on surveillance in the New England

Early Warning system. However, consideration must be given to effects

on the other three whale species protected by this plan. The

regulations implemented by NMFS this Spring were intended for right

whale protection. The Great South Channel is part of right whale

critical habitat; however, it is also a high-use area for other whale

species protected by this plan.

Comment 63: Because unpredictable combinations of oceanographic

conditions can cause whales to congregate unpredictably in areas of

previously low use, support was given in principle for the provision of

the NMFS regulations calling for identification of, and local action in

these areas of short term, localized concentrations of whales. The risk

evaluation and the decision on an

[[Page 39174]]

appropriate course of action should involve fishermen who work in the

region, and scientists familiar with whales in the region, rather than

allowing this decision to the discretion of Federal officials remote

from and unfamiliar with the region. This will help to assure that the

measures taken are most likely to be effective, and by including the

fishing community in the decision process, the compliance will be high.

Response: NMFS agrees that it is desirable to involve local

expertise in designing flexible management for small areas that must be

implemented quickly and efficiently, and it will work with the States

to develop contingency measures for unusual right whale distributions.

The final decision as to measures to be taken must reside with the

agency by law.

Comment 64: Many comments were received suggesting that NMFS use

radio beacons, sonar, or other acoustic deterrent devices or fences to

exclude whales from areas of the coast where they might become

entangled in gear.

Response: Large scale exclusion of whales from their habitat is not

an option for reducing incidental takes in fishing gear. NMFS must find

solutions to the entanglement problem that involve a minimum of

disruption to the whales. Acoustic deterrent devices on a smaller scale

(i.e., at the level of each piece of gear) have been proposed as an

option for research and development, as such a system has proven

effective to reduce entanglements of harbor porpoise in sink gillnets

in certain times/areas.

11. Other Right Whale Critical Habitat Measures

Comment 65: Several comments were received in support of NMFS

proposed gear modification measures for lobster gear in the Cape Cod

Bay right whale critical habitat during the January 1-May 15 period and

proposed closure measure for the Great South Channel during the April

1-June 30 period.

Response: NMFS has retained most of the critical habitat measures.

However, some of the gear modification requirements have not been

included due to insufficient information on operational feasibility.

Comment 66: Given the need to reduce entanglement risks for

humpback whales as well as right whales, the Marine Mammal Commission

recommends that the NMFS require the same gear restrictions proposed

for Cape Cod Bay between 16 May and 31 December (i.e., Type 2 lobster

gear) for at least the Stellwagen Bank portion of the area. Much of

Stellwagen Bank has a sandy bottom where sinking line should pose a

minimal risk of chafing or snagging on rocks. Requiring Type 2 gear for

the area would avoid different sets of restrictions for people who fish

in both Cape Cod Bay and adjacent Stellwagen Bank areas, provide right

whales with protection comparable to that in Cape Cod Bay, and offer an

added measure of protection for at least one key humpback whale habitat

during a peak humpback whale occurrence period.

Response: NMFS agrees that sinking groundline has the potential to

decrease entanglement risk in certain areas and has included this

modification as an option in the lobster gear technology list.

Comment 67: One commenter stated support for the special provision

for strikenets in the proposed rule, but recommended that observers be

required to be on board vessels operating with strikenets in the SEUS

restricted area during the closed period.

Response: A correction to the regulatory text regarding the special

provisions for strikenets is warranted. Section (e)(3)(iii) Special

provision for strikenets now reads: ``Fishing with strikenet gear is

exempt from the restriction under paragraph (e)(3)(i) of this section

if:

(A) No nets are set at night or when visibility is less than 500

yards (457.2 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 or

fin whale; and

(D) If a right, humpback or fin whale moves within 3 nautical miles

of the set gear, the gear is removed immediately from the water.'' This

correction allows for an exemption from the closed areas, provided the

special provisions are met, but will not allow an exemption for

strikenets from the observer requirement in Section (e)(3)(ii).

Comment 68: One commenter supported excluding the shark driftnet

fishery in designated right whale habitat areas during high use times

of the year and recommended that NMFS extend the critical habitat areas

based on current aerial data.

Response: NMFS is currently funding additional surveys to assess

the necessity of extending currently designated right whale critical

habitat. Current data suggest that the critical habitat expansion to

the south and east may be warranted. However, insufficient data

preclude a decision at this time.

Comment 69: The preamble to the rule states that the restriction of

the shark fishery in the southeast extends to the east to the 80 deg. W

long. line. However, in the implementing regulations, the restrictions

appear confined to critical habitat. This is not appropriate and is

less restrictive than was agreed to by the Atlantic Large Whale Take

Reduction Team.

Response: NMFS agrees. The regulatory text has been amended to

reflect that the restricted area extends out to the 80 deg.00' W long.

line.

12. Contingency Measures

General Comments

Comment 70: The State of Maine questioned several aspects of the

proposed rule concerning operational aspects of the fisheries subject

to the plan. The State was not confident that the NMFS would exercise

sound judgement in assessing an entanglement, selecting an appropriate

and reasonable response to an entanglement, or in determining what

constitutes an appropriately sized area to close in the event of an

atypical assemblage of right whales. Therefore, the State insisted that

this measure be modified to ensure that contingency measures, closures

or other restrictions be made jointly by the NMFS and the affected

state or states, that advice and guidance from affected fishermen,

marine mammalogists familiar with the species and its behavior, and

gear technologists.

Response: As noted above, NMFS will work with the States to develop

contingency measures for quicker responses to entanglements and

unexpected entanglement risks. However, the MMPA does not contain

provisions to allow NMFS to confer decision-making authority to States

or affected fishermen.

Unusual Right Whale Distribution Contingency

Comment 71: Several commenters recommended that NMFS establish a

protocol to evaluate and verify sighting information to be used as the

basis of a contingency closure. There were concerns about the size of a

closure that could come into effect in the case of unusual right whale

distributions. (The boundaries of such a closure were not specified in

the proposed plan.) Where or when appropriate, modifications to gear or

fishing practices should be considered as an alternative to closures.

Additionally, NMFS should develop a clear procedure for reopening

areas.

Response: NMFS agrees that a clear protocol for implementing and

lifting contingency closures would be necessary in order to expedite

their use.

[[Page 39175]]

The proposed contingency closure based on unusual right whale

distributions is not included in the final plan, however. Further, the

interim final rule contains measures to reopen any closed area. As

better gear technology is available it will be placed on the gear

technology list.

Comment 72: Offshore lobster gear is hauled about every 8 to 12

days; by the time a fisherman is notified that his gear must be moved

due to the presence of right whales, (and he can get to the gear to do

so), it is likely that the whales will have moved on. This may have the

undesired result of putting gear back in the whales' path in an attempt

to avoid them. Also, the most likely place to move gear will be around

the perimeter of the closure, creating a more condensed gear area

through which the whales will have to pass in order to leave.

Response: NMFS agrees that the timely closing of an area would have

been difficult. This is one of the reasons why this measure was not

implemented.

Gear Modification Failure Contingency

Comment 73: One commenter supported the proposal to either close

areas during restricted periods or impose additional gear modifications

or alternative fishing practices in the event of an entanglement,

serious injury, or mortality of a right whale in an interaction with

modified gear in critical habitat and recommended that NMFS convene or

consult with the TRT after each such event.

Response: NMFS has retained this category of contingency in this

rule. It will inform the TRT of any such event.

Comment 74: The Commonwealth of Massachusetts suggested that the

threat of closures based on entanglements in modified gear would

discourage fishermen from reporting sightings of entangled whales. It

also cautioned that injuries and mortalities are so rare that reacting

to the next one by instituting a closure will not provide the

conservation benefits that are implied.

Response: NMFS agrees that the possibility of a fishery being

closed is a strong disincentive to report entanglements. It has not

retained that contingency in this plan, except in critical habitats. In

critical habitat surveillance efforts and research cruises may

compensate for any decrease in reporting by fishermen.

Comment 75: That the NMFS reserved for the Federal Government the

sole judgment as to whether an entanglement was ``attributable to

modified gear'' or the failure thereof to perform as expected was

patently offensive to the State of Maine.

Response: NMFS is aware that it is not sole expert on entanglements

or on any aspect of whale conservation. As it has in the past, it will

seek advice of the TRT (on which the State of Maine had two

representatives) and of the Gear Advisory Group (on which the State of

Maine had one representative) on matters relating to gear and

entanglements of large whales. As stated before, final authority for

implementing the MMPA rests with NMFS and cannot be delegated.

13. Gear Modifications

General Comments

The vast majority of the comments submitted addressed the proposed

gear modifications and specifically stated that the proposed

regulations would have resulted in gear that was too weak to withstand

the normal operational needs of the fishing industry. Additional

concerns were raised regarding increased potential for entanglement

that could result from changes in fishing practices in response to the

proposed modifications or from increased ghost gear. As proposed, NMFS

created a Large Whale Gear Advisory Group (LWGAG) that met June 4-5,

1997, in Peabody, Massachusetts. Twenty members of the fishing

industry, four representatives of states, three researchers, and nine

NMFS employees attended all or part of the meeting. NMFS provided the

LWGAG with summaries of written and oral public comments, which had

been received to date regarding gear modifications. After an update on

gear studies and a brief discussion of whale entanglement, three teams

were formed to brainstorm ways to reduce the possibility of

entanglement. The participants divided themselves into teams

representing inshore lobstermen, gillnetters and offshore lobstermen.

The inshore lobster team had representatives from Rhode Island to

downeast Maine. Gillnetters included fishermen from New Jersey to

Maine, while offshore lobstermen from southern New England, the mid-

shelf, and east to the Hague Line were represented. Each group produced

a list of suggested options, broken down into immediate and future

options, and an extensive list of research and development needs. These

recommendations were considered in the drafting of this final rule.

Numerous comments were received on specific aspects of the gear

modifications proposed in the proposed regulations. The following

comments are representative of the comments received and address the

concerns raised by the commenters. NMFS acknowledges the practical

limitations of the proposed gear modifications raised by the public and

believes that this interim final rule recognizes different hydrological

conditions that affect fishing practices and gear and provides measures

more compatible with commercial fishing practices, while still

achieving mandates under the MMPA. NMFS intends to continue this

cooperative effort by involving the Large Whale Gear Advisory Group and

Large Whale Take Reduction Team in future development of gear

modifications and research.

Comment 76: The NMFS LWGAG Inshore Lobster subgroup recommended the

following options for immediate implementation in the inshore (i.e.,

inside Lobster Management Area 3) lobster fishery: (1) Prohibition on

buoy lines greater than \7/16\'', (2) prohibition on line floating on

the surface, (3) requirement for breakaways (at buoy; all within 1100

lb; breakaways can consist of swivels, 6 thread line (min. 1 fathom),

plastic weak-links, staples, or hog rings; (4) recommend remove ban on

poly/floating line from proposed rule; (5) light colored buoy lines;

(6) require gear tending at least every 30 days (to ensure no wet

storage); (7) credit given for use of fewer vertical lines; and (8)

fewer knots.

Response: Many of the suggestions that were provided to NMFS at the

Gear Advisory meeting have been included in the interim final rule.

Other suggestions that were given need further evaluations and in

subsequent meetings of the LWGAG and the TRT. These will be discussed

and if determined to be effective measure to reduce entanglements they

will be added to options list for use by fishermen.

Comment 77: The NMFS LWGAG Offshore Lobster subgroup recommended

the following measures to be required for immediate implementation in

the offshore (i.e., outside Lobster Management Area 3) lobster fishery:

(1) Vessels fishing south of 41 deg. N lat. are exempt from these

regulations except during the months of December through March; (2) the

Great South Channel Critical habitat area will be closed to lobster

gear during the months of April through June; (3) there shall be no

line floating at the surface of the water; (4) there shall be a weak

link at the top of the buoy line. The maximum strength of the weak link

shall be no more than that of \1/2\'' polypropylene rope or \3/4\ the

diameter of the buoy line; (5) there shall be no knots in the buoy line

except above the weak link (to tie on surface gear); and (6) there

shall be no more than 2 buoy lines per trawl.

[[Page 39176]]

Response: See response to comment 76.

Comment 78: The LWGAG offshore lobster subgroup also recommended

the following options as suggested, not mandatory, fishing practices:

(1) Buoy lines should be no more than 2.5 times the water depth; (2)

traps should be no more than 25 fathoms apart on the groundlines; (3)

fishers should make their trawls as long as legally possible to reduce

the number of buoy lines within their strings of gear; and (4) gear

should be tended no less than once a month.

Response: See response to comment 76.

Comment 79: The NMFS Large Whale Gear Advisory Group Gillnet

subgroup recommended the following options for immediate implementation

in the gillnet fishery: (1) Anchor the gear with the holding power of a

22 lb danforth style anchor, or a 50 lb dead weight at each end, or rig

net with greater than 100 lb lead line; (2) the buoy line will not be

rigged to float on the surface (excluding the tide ball & high flyer);

(3) top buoy line breakaway system not to exceed 1100 lb, resulting in

a bitter end not exceeding 1.5 inches in diameter;

Response: See response to comment 76.

Comment 80: Several commenters suggested that the current fishing

practices might be sufficient to keep entanglement rates at acceptable

levels and questioned whether proposed gear modification requirements

might increase entanglement rates. A particular concern raised was the

potential for increased amounts of ghost gear in which whales could

become entangled.

Response: NMFS disagrees that current practices are sufficient to

reduce risk to whales. Although there is no evidence to suggest that

entanglements, particularly those which result in serious injury or

mortality, involve ghost gear, NMFS agrees that the increase in ghost

gear is a concern not only for whales but also for other marine life.

NMFS agrees that the requirements of the proposed rule may have

resulted in substantial amounts of lost gear. It believes that the

potential for increased ghost gear which could result from this interim

final rule is minimal.

Comment 81: Devices should not have to be proven to reduce whale

entanglement prior to widespread use, but they should be able to meet

reasonable expectations for substantially reducing risk (e.g., a

decrease in breaking strength that resulted in the gear retaining 75

percent of its original characteristics would not constitute a

substantial reduction in the risk of entanglement).

Response: NMFS appreciates this suggestion of a standard for risk

reduction.

Comment 82: The minimal gear modifications proposed for the Studds-

Stellwagen Bank National Marine Sanctuary area may not be sufficient to

insure that further entanglements are avoided. While a rare event, two

(possibly three) northern right whale entanglements, and a considerable

number of entangled humpbacks, have been observed within the Sanctuary

since 1985. While one cannot be sure that these entanglements actually

occurred in the Sanctuary, neither can one say with any certainty that

they occurred elsewhere.

Response: NMFS had proposed extensive modifications for this area

that are calculated to provide a realistic potential of reducing

serious entanglement to levels required by the MMPA. NMFS agrees that

the Sanctuary is a high risk area, however, and that it is important to

provide adequate protection for all four whale species in the area,

particularly right and humpback whales.

Comment 83: NMFS should work toward long-term gear solutions that

might include developing new gear types or shifting fishermen over to

existing gear that would be less risky to marine mammals. For example,

if bottom longlining proves to be an acceptable alternative for the

harvest of certain groundfish species (groundfish: cod, haddock,

pollock) and spiny dogfish, then gillnetters should be encouraged to

shift to this gear type in areas of high risk to large whales. The

three-month closure in the Great South Channel and the 4.5 month

closure in Cape Cod Bay could provide opportunities for fishermen to

shift to other gear types, and this should be encouraged.

Response: NMFS appreciates this suggestion. It will continue to

examine alternative measures and ask the TRT to consider ways to

encourage alternate fishing practices that may pose less risk of marine

mammal entanglements.

Comment 84: Since the disbanding of the Take Reduction Team,

concerns have been raised by right whale scientists that a top

breakaway in the buoy line may be less appropriate than a bottom

breakaway, but clearly both should be tested operationally. It may be

that a phased approach to implementation would accommodate the need for

field testing before requiring broad use of breakaways throughout the

EEZ.

Response: NMFS agrees that a bottom breakaway could be useful in

mitigating certain types of entanglements. The function of top

breakaways versus bottom breakaways are different and would address

different aspects of entanglement. The operational constraints on

bottom breakaways are much greater than breakaways at the buoy, thus

technological solutions would require extensive testing. Some progress

has been made in developing a bottom breakaway (see next comment), but

NMFS does not have any information at this time on feasibility of this

device for implementation in fixed gear fisheries.

Comment 85: A conservation group suggested that failing to require

a breakaway link at the bottom of buoy lines ensures that potential

solutions will not be developed. This group suggests that NMFS require

the development and use of such a link as soon as it becomes

operationally feasible. Gear without such a device would still

represent a significant entanglement risk to whales, and such gear

should not be allowed into sensitive areas such as critical habitat. A

device that could be used as a bottom breakaway is being developed.

Response: NMFS acknowledges this information on progress toward

developing a bottom weak link and will consider such recommendations

for future evaluation. NMFS will ask the TRT and LWGAG to evaluate

innovative technological solutions that are presented for consideration

to add to the Take Reduction Technology Lists.

Comment 86: One conservation group suggested that a weak link with

a breaking strength of 400 lb might work in Cape Cod Bay critical

habitat, based on operational testing. Alternatively, to make the use

of weaker link devices more acceptable to industry, NMFS might explore

the development of a stronger accessory device that could be placed on

gear when severe storms are predicted for an area.

Response: NMFS acknowledges this timely information. However,

concern remains that, although 400 lb may be promising for Cape Cod

Bay, this breaking strength may not be sufficient for all areas where

gear is deployed. Therefore, NMFS has used a 1100 lb breaking strength

as proposed by the Large Whale Gear Advisory Group until further

testing can be conducted to determine the lowest breaking strength that

can be used in particular areas. It will seek a discussion in the TRT

and LWGAG about the feasibility of developing an alternative device

that could be placed on gear when storms are predicted, although it

would be

[[Page 39177]]

difficult to regulate the use of such a device.

Comment 87: Splicing is not likely to make a difference in saving

whales.

Response: Splicing is no longer required in the interim final rule,

although NMFS encourages its use, on the grounds that a splice is less

likely than a knot to snag on a whale.

Comment 88: Floating line is preferred in many fishing areas to

reduce chafing caused by contact with pots or with the bottom and the

actual degree to which line floats between pots is unknown.

Nevertheless, to reduce the potential for a high profile in the

groundline and therefore reduce the risk of entanglement, this

conservation group supports requiring sinking groundline in areas

identified as high-use areas for large whales.

Response: NMFS agrees that sinking groundline has the potential to

decrease entanglement risk in certain areas and has maintained this

modification as an option in the lobster gear technology list.

Comment 89: One commenter suggested that a workable alternative to

requiring sinking groundline would be to require vessels to set lobster

pot trawls in the direction of ``fair tide'', or down tide with the

current pushing the vessel, to keep ground lines taut and low between

traps. This was also discussed by the LWGAG.

Response: NMFS acknowledges this suggestion of an alternative

fishing practice but further research is necessary to determine if this

practice is consistent in different types of hydrological conditions.

14. Comments on Strategies for Implementing Gear Modifications

Comment 90: One commenter stated that the measures in the NMFS

proposed plan may be appropriate as emergency measures for critical

habitat and some high risk habitats, but that it is premature to

require major, untested gear modifications over large areas outside of

the highest risk areas. In particular, these modifications could cause

unforeseen problems for whales, such as the increase of ghost gear.

Other commenters recommended that any modifications implemented should

be phased in and should be operationally sound, enforceable, and

affordable.

Response: NMFS agrees with these concerns given the current lack of

technological solutions and has substantially revised the proposed rule

in response to these concerns.

Comment 91: One conservation group suggested that expensive

modifications should have an economic phase-in period. This group

suggested a system of phasing in gear modifications beginning in the

right whale critical habitat areas in 1997 and ending with the wider

areas in 2002, proceeding in annual increments of 1/3 of the gear each

vessel has in each area. Modifications required in each of the

succeeding years would be consistent with technology current at that

time. The commenter suggested that existing and proposed gillnet and

trap tag programs would facilitate enforcement of this strategy.

Response: The changes in this final rule reduce the costs

significantly. Flexibility has been built into the interim final rule

to adopt a phased-in approach for gear modification as they are

developed. As new gear is determined to be operational and effective in

reducing entanglements it will be added to the gear technology list

described in this rule for use by fishermen.

Comment 92: One conservation group recommended that gear

modifications not be allowed in closed or restricted areas until they

could be demonstrated to reduce the risk of serious injury or mortality

to whales to levels approaching zero.

Response: It is not clear how any management measure could be

demonstrated to reduce the risks of entanglements to levels approaching

zero. It will be the combinations of all the parts of the plan that

will reduce the risk of entanglements. In general, hypotheses can be

disproved but not proved. However, as new technology is developed, NMFS

will seek advice of the TRT and the LWGAG as to whether it appears a

feasible for reducing entanglement risk to deploy.

Comment 93: The NMFS should develop criteria for certifying

individuals and institutions as qualified to design, evaluate, and

approve modifications for use consistent with the ALWTRP. The basis for

approval of any given technique or technology should be that it is

judged to be equal to or superior to current practice.

Response: The design of gear modifications could be done by anyone

with a good idea. No concept should be rejected just because a person

is not certified. Evaluation will be done by NMFS gear specialists, the

LWGAG and the TRT and by fishermen involved in testing the gear. NMFS

cannot delegate authority to individuals or institutions to approve

gear for use.

Comment 94: Any examination or review of gear modifications must

fully address the issue of HOW whales become entangled in fishing gear.

Pending the availability of scientific research that explains this

phenomena, no gear modifications can or should be tested in the natural

environment on endangered or other whales.

Response: NMFS agrees that knowledge of the mechanics of

entanglement is important to resolve the entanglement problem. However,

since so few entanglements have been witnessed, NMFS believes it is

unreasonable to require this standard for allowing the use of certain

gear modifications.

Comment 95: Several commenters requested that NMFS subsidize the

fishing industry for modifying their gear.

Response: At this time, NMFS has no authority or funding from

Congress to subsidize the fishing industry for gear modifications.

Comment 96: Several members of the fishing industry offered to test

experimental gear provided by NMFS rather than be asked to experiment

with gear that they need to make a living.

Response: The suggestion is appreciated and will be discussed with

the Gear Advisory Team.

15. Comments on the Social and/or Economic Impact and Associated

Analyses

Comment 97: Numerous comments were received expressing the opinion

that the proposed rule would have a devastating effect not only on the

fishing industry, but also on the entire coastal community, and that

the economic impact outweighed the potential benefit to right whales.

Response: NMFS has responded to these concerns and believes that

this interim final rule represents a plan that will achieve the goals

established in the MMPA with an economic impact substantially reduced

from that which would have resulted from the proposed rule.

Comment 98: The economic analysis should include the costs of labor

that it would require to paint and rig the gear.

Response: The economic analysis did not ignore labor costs. The

labor costs were acknowledged to be substantial in several instances

throughout the Environmental Assessment prepared for the proposed rule.

At the time, however, insufficient information was available to provide

a quantitative estimate of labor costs. To the extent practicable, NMFS

included labor costs in the final EA for the ALWTRP.

Comment 99: Economic analysis is an underestimate.

Response: The economic analysis was conducted with the best

scientific and commercial data available at the time, and when data

were lacking, qualitative assessments were made about the likely costs.

[[Page 39178]]

Comment 100: The State of Maine prepared an alternative economic

analysis to challenge implementation of the ALWTRP on grounds of severe

economic impact to the Maine lobster fishery.

Response: NMFS agrees in concept with the State of Maine's overall

conclusion that the proposed regulations would have imposed a

substantial economic impact on the Maine lobster fishery. NMFS has

responded to this concern in developing a final rule that provides

maximum flexibility to affected Maine lobster fishermen in meeting the

gear modification requirements as a way to significantly reduce the

economic impact. In the majority of instances, the suite of options in

the lobster take reduction technology list are consistent with fishing

practices commonly used by Maine lobstermen and serve to minimize

compliance costs with the ALWTRP. Consequently, the original economic

analysis is no longer valid for this interim final rule. Nevertheless,

NMFS is not, in agreement with several assertions made by the State of

Maine, nor is it in agreement with several aspects of its economic

analysis. NMFS will provide a discussion of the Maine analysis upon

request.

16. Regulation of Other Fisheries Which May Pose an Entanglement Risk

to Large Whales

Comment 101: Several comments were received regarding NMFS's

proposal to regulate several fisheries other than the four proposed to

be regulated by the ALWTRP based on the fact that those other fisheries

either have or may entangle large whales. Comments were received

recommending that NMFS consider revising the classification of these

fisheries from Category III to Category II and consider imposing gear

marking requirements on these fisheries. Other comments recommended

against imposing additional gear requirements or restrictions until

such time as NMFS has evidence indicating that these fisheries pose an

entanglement threat to large whales.

Response: A summary of historical entanglement information for the

``other fisheries'' was presented in the Draft Take Reduction Team Plan

submitted by the TRT. Several of the other fisheries listed have

documented takes of one or more of the four whale species protected by

this plan. Therefore the potential for take in the future exists. In

addition, as explained in the proposed rule, the other fisheries for

which take has not yet been documented may represent a similar threat

because gear types are similar. For example, all gear types which use

vertical lines in areas where whales occur may represent an equal

entanglement threat. The proposed list of fisheries for 1998 is

currently out for public comment and NMFS solicits comments on the

reclassification of these ``other fisheries''. Note that section 118 of

the MMPA gives the AA the authority to classify a fishery based on

analogy with similar fisheries.

17. Comments on Expansion of Disentanglement Effort

Comment 102: One commenter cited a case where a whale was seen

entangled and not disentangled because the entanglement did not appear

to be life threatening. That whale eventually died, and the cause of

death was attributed to the entanglement. The commenter contended that

this case demonstrates that disentanglement efforts could help resolve

the problem and regulators should put stock in the efforts to reduce

serious injury and mortality, especially since this may convince

fishermen to cooperate with government to report right whale sightings.

Response: NMFS agrees that disentanglement can be an effective

measure for reducing the chances of serious injury or mortality from

those entanglements that have already occurred and happen to be seen

and reported in time to maximize the chances of a successful

disentanglement. This is a major aspect of the plan. NMFS believes that

measures are necessary, both to prevent whales from becoming entangled

in the first place and to minimize the impacts on those whales that

become entangled and are never disentangled.

Comment 103: Several comments were received supporting the

expansion of the disentanglement effort while stating that

disentanglement does not substitute for the need to modify or restrict

gear. One conservation group noted the lack of any data to show that

disentanglement has contributed to the long term survival of any animal

(particularly right whales) that has been entangled in fishing gear.

Response: NMFS agrees that measures other than disentanglement must

be taken. Although no research on long term survival of disentangled

animals has been conducted, analyses are underway that may provide

information on this issue. Several years of data are available, since

organized disentanglement has been conducted in the northeast since

1984.

Comment 104: Several comments were received indicating that the

fishing industry must be involved in the disentanglement network for it

to have any hope of succeeding. One commenter noted that it is vital to

get the most possible benefit from ``first responders''. Often they are

the only ones in the position to act effectively, and are able to

provide valuable information on the particulars of the entanglement.

Response: NMFS agrees that the commercial fishing industry is a

vital component of the disentanglement network. In fact, many whale

entanglement records received by NMFS have originated from reports by

commercial fishers. The chances of a successful disentanglement are

maximized when the individuals monitoring an entangled whale are

familiar with the needs of the disentanglement team and can stay with

the whale to feed information to the primary team and assist the

primary team on scene. NMFS hopes to increase the network of

individuals trained to provide first response.

Comment 105: One commenter stated that well-intentioned but

untrained and uninformed boaters and fishermen might unnecessarily

injure either themselves or the whales they are attempting to help and

suggested that fishermen and other interested boaters receive training

in identifying whales and evaluating entanglements, as well as the

basic do's and don'ts of disentanglement. Another commenter suggested

that hotline telephone numbers be established and the numbers given to

fishermen to expedite help for whale entanglements/problems.

Response: NMFS agrees that this is a concern. Information on how to

report an entanglement, including hotline numbers, and on what not to

do, has been provided to vessel operators in the past. N

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