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. 970129015-7072-02; I.D. 031997B]

RIN 0684-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: Proposed rule; request for comments.

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SUMMARY: NMFS by this action proposes a take reduction plan and

implementing regulations to reduce serious injury and mortality of four

large whale stocks that occur incidental to certain fisheries. The

whales stocks consist of 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 proposed plan

are fisheries: for multiple 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

Gulf of Maine and U.S. mid-Atlantic trap/pot fisheries; and for sharks

in the Southeastern U.S. Atlantic driftnet fishery. NMFS seeks comments

on this proposed plan and the proposed regulations to implement the

plan.

DATES: Comments on the proposed plan and proposed regulations to

implement the plan must be received by May 15, 1997.

ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of

Protected Resources, National Marine Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910-33226. Copies of the Team Report and

draft Environmental Assessment (EA) may be obtained by written request

from the Office of Protected Resources, or by telephoning one of the

contacts listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Kim Thounhurst, NMFS, Northeast

Region, 508/281-9368; Bridget Mansfield, NMFS, Southeast Region, 813/

570-5312; or Michael Payne, NMFS, Office of Protected Resources, 301/

713-2322.

SUPPLEMENTARY INFORMATION:

Background

Since it was first passed in 1972, one of the underlying goals of

the Marine Mammal Protection Act (MMPA) has been to reduce the

incidental serious injury and mortality of marine mammals permitted in

the course of commercial fishing operations to insignificant levels

approaching a zero mortality and serious injury rate (section 101(a)(2)

of the MMPA). The 1994 Amendments to the MMPA reaffirm this Zero

Mortality Rate Goal (ZMRG) (section 118 (b)(1)).

To facilitate reduction of incidental serious injury and mortality

to high priority marine mammal stocks, section 118(f) requires NMFS to

develop and implement a take reduction plan to assist in the recovery

or to prevent the depletion of each strategic stock that interacts with

a Category I or II fishery. Category I or II fisheries are fisheries

that have frequent or occasional incidental mortality and serious

injury of marine mammals, respectively. A strategic stock is a stock:

(1) For which the level of direct human-caused

[[Page 16520]]

mortality exceeds the potential biological removal (PBR) level; (2)

which is declining and is likely to be listed under the Endangered

Species Act (ESA) in the foreseeable future; or (3) which is listed as

a threatened or endangered species under the ESA or as a depleted

species under the MMPA. The immediate goal of a take reduction plan

(TRP) is to reduce, within 6 months of its implementation, the

mortality and serious injury of strategic stocks incidentally taken in

the course of commercial fishing operations to below the PBR levels

established for such stocks. The long-term goal of the 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.

NMFS established the Atlantic Large Whale Take Reduction Team (Team

or ALWTRT) on August 6, 1996 (61 FR 40819) to prepare a draft Atlantic

Large Whale Take Reduction Plan to reduce takes of humpback, fin and

right whales, which are listed as endangered species under the ESA (and

are thus considered strategic stocks under the MMPA) by commercial

fisheries. Although minke whales are not considered strategic at this

time, the Team was also asked to consider measures that would reduce

takes of minke whales. The Team prepared a report and submitted it to

NMFS; a more complete discussion of the Team Report and associated

recommendations is provided below.

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 take

right whales in Canadian waters. Additionally, entanglements of right

whales in unspecified gillnets have been recorded historically for U.S.

waters, although U.S. sink gillnets have not been conclusively

identified as having taken right whales. The Gulf of Maine/U.S. mid-

Atlantic lobster trap/pot fishery is a Category I fishery that has an

historical incidental 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. These fisheries are therefore addressed in

this proposed Atlantic Large Whale Take Reduction Plan (ALWTRP or

Plan). The pelagic drift gillnet fishery has recorded takes of large

whales, but those interactions are not being addressed in this Plan,

since it will be addressed in the Atlantic Offshore Cetacean Take

Reduction Plan, which is being developed.

In addition, the Team Report identified several other fisheries

operating on the U.S. Atlantic Coast which either use gear similar in

construction to gear used by the fisheries covered by this proposed

plan, and may therefore represent similar entanglement threat, or which

may have documented serious injury or mortality entanglements of right,

humpback, fin and/or minke whales. 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 is considering the

appropriateness of these classifications and may impose gear-marking

requirements and/or restrictions on some or all of these other

fisheries in the final plan. NMFS specifically invites comments on

whether these other fisheries utilize the same or similar gear as the

fisheries considered in this plan, whether the gear is fished in a

manner which causes or has the potential to cause serious injury or

mortality to marine mammals, whether efficient administration,

effective enforcement or similar considerations warrant uniform

regulations for similar gear types, and whether the gear-marking

requirements and/or other restrictions should apply to all fisheries

using similar gear.

The Team was tasked with developing a draft plan for reducing

mortality and serious injury to strategic large whale stocks, and minke

whales if time permitted, in the specified fisheries. The Team included

representatives of NMFS, the Marine Mammal Commission, Maine Department

of Marine Resources, Massachusetts Division of Marine Fisheries, Rhode

Island Division of Fish and Wildlife, Maryland Department of Natural

Resources, Virginia Marine Resources Commission, North Carolina

Division of Marine Fisheries, Georgia Department of Natural Resources,

Florida Department of Environmental Protection, New England Fishery

Management Council, Mid-Atlantic Fishery Management Council,

environmental organizations, academic and scientific organizations, and

participants in the fisheries considered in this plan. In selecting

these team members, NMFS sought an equitable balance among

representatives of resource user and non-user interests.

The team met six times between September 1996 and January 1997 and

submitted a report to NMFS on February 5, 1997 (Although the report was

entitled ``Draft Large Whale Take Reduction Plan'', consensus was not

reached. Consequently, it is referred to as the ``ALWTRT Report'' or

``Team Report''). While consensus was not reached, the Team provided a

significant and useful framework for NMFS to develop this proposed

ALWTRP and the associated implementing regulations. The report

submitted by the Team includes: (1) A review of the current information

on the status of the affected strategic marine mammal stocks; (2)

descriptions of the New England multispecies sink gillnet fishery, the

mid-Atlantic coastal gillnet fisheries, the Gulf of Maine and U.S. mid-

Atlantic lobster trap/pot fisheries, and the Southeastern U.S. Atlantic

drift gillnet fishery for sharks; (3) comments on potential measures to

reduce the bycatch of large whales; and (4) other comments regarding

research needs for implementation of the plan.

NMFS evaluated the Team Report and subsequent comments submitted by

team members in developing this proposed ALWTRP. NMFS considered

possible take reduction measures in terms of their potential

effectiveness toward reaching both the 6-month and the 5-year goals.

This ALWTRP includes specific take reduction goals as well as means to

monitor progress toward those goals.

Take Reduction Goals

Most of the measures in this proposed plan focus on ways to reduce

the risk of serious injury and mortality to right whales, both because

the right whale's population status is more critical than that of

either humpback or fin whales, and because right whales are the only

endangered large whale in U.S. Atlantic waters for which PBR is known

to be exceeded. The proposed measures are also expected to reduce the

risk of serious injury and mortality to humpback and fin whales due to

entanglement, and may reduce the same risks for minke whales. There is

overlap in several areas where fishing occurs and where right,

humpback, fin and minke whales are also known to occur, although

concurrent use of these areas by all species does not occur during much

of the year. Therefore, certain measures directed at reducing right

whale entanglements (such as required gear modifications) are proposed

to be expanded to year-round coverage

[[Page 16521]]

beginning in 1998 to be effective for all species considered by the

Plan.

Some entanglements of large whales were observed by the NMFS sea

sampling program; however, most records come from reports from various

sources such as small vessel operators. Limitations 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.

Right Whales

Based on data from 1991 through 1995, U.S. fishing gear is

estimated to be responsible for approximately 35 percent (6 events) of

known human-caused serious injury and mortality to right whales, while

Canadian fisheries are estimated to be responsible for 18 percent (3

events); the remaining 47 percent (8 events) is attributed to ship

strikes. The MMPA requires that TRPs include measures to reduce takes

of strategic marine mammals incidental to U.S. commercial fisheries to

below PBR levels.

NMFS estimates that a minimum of 1.2 right whales from the western

North Atlantic stock are seriously injured or killed annually by

entanglement in U.S. fishing gear. Of those entangled whales, lobster

gear is estimated to have entangled an annual average of 0.4 whales

over the last 5 years. The Southeastern U.S. drift gillnet fishery for

sharks is assumed to have entangled an annual average of 0.2 whales

over the same period. Whales entangled in unidentified gillnet gear

have been observed. The pelagic drift gillnet fishery is estimated to

be responsible for 0.4 fishery-induced mortalities and serious injuries

of right whales annually. The remaining known entanglements are from

unknown fisheries. With the exception of the swordfish driftnet take,

which was documented by the NMFS observer program, these entanglement

rates are considered minimum estimates based on known events.

Unobserved entanglements are known to occur, based on observed scarred

animals. These entanglements may be unobserved because less serious

entanglements may be brief in duration, mortality may be rapid, or the

entanglement may occur in an area where there is little sighting effort

(and, consequently, lower chances of observation and reporting). NMFS

is unable to estimate the number of these unobserved events.

NMFS has determined that to meet the 6-month goal set by the MMPA

to reduce takes by commercial fisheries to below the PBR level of 0.4

for this stock, the probability of entanglement of right whales by all

U.S. Atlantic fisheries must be reduced by more than 67% (from 1.2 to

less than 0.4). Reduction of takes in the pelagic drift gillnet fishery

will be considered in the Atlantic Offshore Cetacean Take Reduction

Plan (AOCTRP). A draft AOCTRP was submitted to NMFS on November 25,

1996, and publication of the proposed plan in the Federal Register is

expected in the near future.

NMFS estimates annual serious injury and mortality rates based on a

5-year period. 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 difficult to

establish whether the goal of reducing incidental takes of right whales

to below the PBR level is achieved within 6 months of the plan is

implemented. Since the PBR level for right whales is 0.4, if more than

two serious injuries or mortalities incidental to commercial fishing

operations occur within 5 years after the plan is promulgated, then the

PBR goal will not have been achieved.

Progress toward the 5-year goal may be more feasible to monitor

than that toward the 6-month goal. However, defining the 5-year goal is

somewhat more difficult, since at this time, NMFS has not issued a

final quantitative definition for ZMRG. NMFS expects to address the

regulatory definition of ZMRG in the near future. However, more than

one incident of serious injury or mortality in the fisheries covered

under the ALWTRP (which does not include all fisheries) during the

first 3 years after the plan is implemented would be a strong indicator

that the plan was not achieving its goals. Right whale entanglement

rates are proposed to be monitored as described below.

Humpback Whales

NMFS has determined that a reduction in take for the western North

Atlantic stock of humpback whales is not required to meet the 6-month

goal, because the estimated annual serious injury and mortality level

due to entanglement (in the four fisheries groups covered in this plan)

for this stock (3.4 minimum annual average for 1991-1995) is below the

stock's PBR level of 9.7.

As with right whales, a quantitative goal to achieve the 5-year

goal of ZMRG for humpback whales cannot be prescribed until ZMRG has

been defined in terms other than ``insignificant levels approaching a

zero mortality rate.'' If entanglement rates are observed to be

reduced, progress toward ZMRG would be assumed, but could not be

assessed more accurately until ZMRG is defined more precisely. The

humpback whale entanglement rate is proposed to be monitored as

described below.

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, and the estimated total take due

to entanglement is below PBR for this stock. Therefore, NMFS has

determined that a reduction in take for the western North Atlantic

stock of fin whales is not required for these fisheries to meet the 6-

month goal. However, entanglement of fin whales in lobster pot gear and

gillnet gear has been documented historically, and some reduction in

take may be necessary to achieve the ZMRG. As with right and humpback

whales, a quantitative goal to achieve the 5-year goal of ZMRG for fin

whales cannot be established with numerical precision at this time.

However, measures implemented to reduce the entanglement rate of right

and humpback whales would also be expected to reduce the entanglement

rate for fin whales, facilitating progress of that stock toward ZMRG.

Fin whale entanglement rate are to be monitored, as feasible, although

it should be noted that known entanglements are rare, and it may be

difficult to determine whether there has been a reduction.

Additionally, the number of entangled fin whale sightings is likely to

be negatively biased because carcasses usually sink immediately and are

therefore less likely to be observed.

Minke Whales

Although minke whales are not considered strategic at this time

(human-caused mortality and serious injury are not known to exceed the

PBR level of 21 for this stock, and this species is not listed as

threatened or endangered under the ESA or as depleted under the MMPA),

serious injuries and mortalities incidental to at least two of the

fisheries groups covered in this proposed plan are known to

[[Page 16522]]

occur. Therefore, the Team was asked to consider measures that would

reduce takes of minke whales in these fisheries. In light of the strict

time frame available to develop a TRP, the Team did not have time to

consider specific needs or measures to reduce entanglements of minke

whales. However, 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. The minke

whale entanglement rate is proposed to be monitored, to the extent

feasible. If entanglement rates are observed to be reduced, progress

toward ZMRG would be assumed, but could not be assessed more accurately

until ZMRG is defined more precisely. As with fin whales, minke

entanglement levels are likely to be underestimated because carcasses

are likely to sink immediately.

Monitoring Strategies

The following strategies for monitoring progress in take reduction

were outlined in the Team Report: (1) Collect adequate photographic

data to evaluate the incidence of new entanglement scarring and assess

presumed mortality levels; (2) expand field survey efforts for a

minimum of six years after implementation of gear modifications, to

assess population abundance and distribution; and (3) evaluate

effectiveness of gear modifications on future entanglement events. The

success of the take reduction measures that are implemented will be

evaluated at future Team meetings, with subsequent comments and

recommendations forwarded to NMFS.

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 is

considering expanding field survey efforts to assess population

abundance and distribution. 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 evidence that the risk of entangling right, fin and

minke whales has been reduced.

It should be emphasized that not all whale entanglements result in

serious injury or mortality. Levels of entanglement-related

scarification in the right whale population have been analyzed (Kraus,

1990). Monitoring of scarification and comparison of historic levels in

the population, as noted in the Team Report, may help provide a basis

for determining whether the various take reduction measures in the

final plan are effective in decreasing levels of interaction between

whales and fishing gear. This must be considered together with

determining the effectiveness of gear modifications (which may leave

scars on whales, but not result in serious injuries and mortalities) in

decreasing the severity of entanglement-related injuries. The level of

non-serious injuries resulting from entanglements will provide further

indication of whether the 6-month and 5-year goals of the ALWTRP are

being achieved.

Monitoring fishing effort levels in conjunction with assessment of

gear effectiveness may provide another indicator of entanglement rates.

This will be considered when the Team periodically convenes to evaluate

the success of the ALWTRP. If fishing effort is reduced, entanglement

risk may also decline, although a linear relationship cannot be

assumed. Rather, entanglement risk may decrease by an unknown

percentage depending on the degree of overlap between historical

fishing effort and whale distribution.

Some marking of lobster pots, gillnets and associated surface gear

(e.g., buoys, high-fliers, or flags) is currently required or being

considered under Federal or state fishery management plans for the four

groups of fisheries covered by this plan. However, most lines and nets

in the water column remain unmarked. Most sightings of entangled whales

involve gear which cannot be conclusively tracked to a particular

fishery or area, due to the fact that only a fragment of line or net is

present.

Several entanglement records indicates that whales are capable of

dragging gear great distances. In one known instance, a right whale

that became entangled in a lobster pot trawl in the Bay of Fundy

dragged fragments of the trawl to Cape Cod, Massachusetts, where the

whale was struck by a vessel and washed up on the beach. Due to these

factors and the low per-gear interaction rate, NMFS believes that the

traditional observer program will not be effective in detecting or

monitoring large whale entanglements in most fisheries.

To increase the value of information from future entanglement

events, NMFS is proposing gear marking requirements to monitor the

effectiveness of this plan and to determine whether entanglements are

occurring in gear which has been damaged or displaced by storms or

user-group conflicts. NMFS seeks to implement this requirement in as

simple a manner as possible as described in the gear modifications

section below.

Take Reduction Strategies

The primary measures for take reduction discussed in the Team

Report include modifications to fishing gear and practices, area

restrictions, reduction of inactive fishing gear as marine debris, and

improved disentanglement efforts. Supplementary initiatives for take

reduction contained in the Team Report include fisher education and

outreach, better monitoring of the distribution of whale stocks and

entanglements, joint initiatives with Canada to reduce whale bycatch in

commercial fisheries, and exploration of market incentives to reduce

large whale bycatch in these fisheries. In this action, NMFS is

proposing strategies that seem best suited to follow the intent of the

Team and to achieve the goals set forth by the MMPA. NMFS expects that,

if implemented, these measures, taken together, would have a

significant effect in reducing the risk of entanglement of large whales

in the fisheries considered in this plan to levels that meet both the

6-month and 5-year goals.

Whales are extremely mobile and entanglements have occurred outside

the bounds of known high risk areas. It is, therefore, not possible to

identify all areas of risk. It is likewise difficult to determine if

the measures proposed in this plan will be sufficient to reduce

entanglements that result in serious injury and mortality to below PBR

levels, and eventually to the ZMRG, or to maintain take rates below

those levels. Further restrictions will be applied if these measures

are not successful.

It is not possible to conclusively quantify the decrease in risk of

entanglement that will result from the proposed measures in this

ALWTRP. The Team was presented with the best available data on large

whale distribution and abundance patterns in the Atlantic, as well as

similar information on fisheries effort and distribution. These data

were analyzed and compared to determine areas and times that represent

``high risk'' to whales based on high probability of whale occurrence

and/or high fishing effort. This analysis was used by the Team to

provide comments to NMFS regarding locations and times for area

[[Page 16523]]

closures or gear restrictions. For an analysis of the level of

entanglement risk from the Northeast sink gillnet fishery for all

areas, which was done by overlaying right and humpback whale densities

on fishing effort for different times of the year and assigning low,

medium or high risk, see the appendix 11 and other materials in the

ALWTRT Report. Whale densities during certain months in some areas are

such that the Team believed it was important to prevent future

expansion of fishery effort until effective gear modifications have

been developed and demonstrated. In other areas periodic increased

whale densities combined with certain levels of fishing effort may

create anomalous high risk periods.

The proposed requirements would govern fishing by all vessels in

New England multispecies sink gillnet fisheries, the mid-Atlantic

coastal gillnet fisheries, the Gulf of Maine/U.S. mid-Atlantic lobster

trap/pot fishery and the Southeastern U.S. Atlantic drift gillnet

fishery for sharks. As stated earlier, there are additional trap/pot,

gillnet or other gear that may have the potential to entangle whales.

These are primarily Category III fisheries which will be evaluated

during the 1998 List of Fisheries process for potential interaction

levels with large whales and possible elevation to Category I or II.

Although these fisheries are not included in take reduction or gear

marking measures under this proposed rule, the final rule may include

such measures.

Research Initiatives and Monitoring Strategies

The Team recommended initiation of a gear research and development

program to design and implement fishing techniques and technologies

that will reduce the entanglement rate and/or severity of injuries and

mortalities of large whales. The Team recommended that NMFS work with

industry and gear specialists to develop criteria for: (1) Certifying

individuals and institutions as qualified to design and evaluate

modifications for use consistent with requirements of the ALWTRP and

other TRPs; and (2) evaluating gear effectiveness toward reducing

marine mammal entanglements.

The Team Report identified several initial gear modifications for

investigation. These are the development of: (1) Tag lines (lightweight

line that poses no risk to whales, but would hold a buoy at the surface

and allow retrieval of a functional buoy line); (2) biodegradable or a

weak link at the bottom of the buoy line; (3) improvement of a weak

link at the top of the buoy line; (4) smooth or non-snagging gillnet

head rope; (5) biodegradable gear and gear components; (6) using

weights to sink floating pot trawl groundline, development of other

functional equivalents of sinking groundline, or requiring sinking

groundline; and (7) ``noisy'' gear, or gear more easily detected by

whales. Also identified in the Team Report as areas for further

investigation are the evaluation of the breaking strengths of weak

links and the performance of weak links in gillnets both between and

within net panels. The Team Report further comments that successful

gear modifications be considered for future incorporation into the plan

as implementation measures.

NMFS is forming a gear review and technical advisory group to work

with industry and gear technology specialists to develop gear and

fishing practices to reduce the number and impact of large whale

entanglements. NMFS recognizes that the current low rate of observed

entanglement and other difficulties in evaluating gear makes it

difficult or impossible to demonstrate conclusively that any gear

modification would reduce entanglement or serious injury and mortality

resulting from entanglement. Nonetheless, NMFS has included certain

gear modifications in this proposed rule although these measures have

not yet been evaluated by the NMFS gear review and technical advisory

group. NMFS believes that these modifications will reduce the risk of

entanglement, but seeks further review of these measures.

It is anticipated that the NMFS gear review group will conduct an

initial review of the proposed gear modifications prior to publication

of the final rule implementing this plan. NMFS proposes to immediately

implement the most stringent restrictions in areas and times when right

whale concentrations are highest. This strategy was initiated in

regulations implementing Framework Adjustment 23 to the Northeast

Multispecies Fishery Management Plan and emergency regulations for the

lobster fishery under the MMPA. The proposed rule incorporates these

restrictions and phases in additional restrictions.

Through gear marking requirements, NMFS hopes to obtain more useful

data regarding when and where entanglements occur, as well as in which

parts of the gear they are most likely to occur. This measure will not

reduce bycatch, but is expected to facilitate in monitoring

entanglement rates and assist in designing future bycatch reduction

measures to achieve ZMRG.

NMFS seeks to implement the gear marking requirement in as simple a

manner as possible. A system entailing color-coded marks is proposed.

The marking would include three color schemes, one color representing

the gear type corresponding to one of the fisheries in this plan, and

the second mark consisting of two colors indicating the region in which

the gear is being fished. Regions would include Cape Cod Bay critical

habitat, Great South Channel critical habitat, the Stellwagen Bank/

Jeffreys Ledge area, other Northeast waters, Mid-Atlantic coastal

waters, and Southeast waters. Gear marking must be accomplished so that

the result is a smooth line with no snags which could catch in a

whale's baleen.

Marking of buoy lines (within 2 feet of the buoy and approximately

midway in the water column) would be required by January 1, 1998, and

marking of nets (at both ends of each net in a string of gillnets and

every 100 feet in panels > 300 feet) and lobster pot trawl groundlines

(approximately midway between each pot) would be required by January 1,

1999. NMFS solicits comments on these proposed gear marking measures

and alternative suggestions. In addition, NMFS also requests comments

on whether gear-marking should be required for the other fisheries

discussed above which utilize similar gear.

Primary Take Reduction Initiatives

Fishing Method / Gear Modifications and Area Restrictions by Fishery

and Area

All Fisheries:

Documented whale behavior and information from actual entanglement

records suggest that both vertical (e.g., buoy lines) and horizontal

(e.g., gillnets or lobster pot trawl groundlines) components of fishing

gear represent entanglement risks. For example, of the 9 records of

right whale entanglements in gear identified as lobster gear since

1970, 4 apparently involved only the buoy line, 2 probably involved

only groundline, and 3 involved line that was from an unknown part of

the gear. Modifications to the current practices of rigging buoy lines

are proposed to reduce the number of vertical lines and to ensure that

pot trawls are not rigged with more than two vertical lines. Although

the level of risk reduction cannot be quantified because the current

number of vertical lines is unknown, implementation of these measures

will likely directly reduce the entanglement risk presented by vertical

buoy lines.

[[Page 16524]]

Sinking Buoy Line Requirement (except for driftnet gear): Buoy

lines are typically constructed of a section of sinking line near the

surface which is spliced or knotted to a longer section of floating

line that is attached to the anchor of a gillnet or the first pot of a

lobster pot trawl. Sinking line is preferred near the surface to

decrease the chance that the line will be severed by propellers of

vessels passing through an area. The attached floating line is less

expensive than sinking line and has several additional benefits. Using

floating line near the bottom can prevent the line from wrapping around

gear or rocks on the bottom and chafing as the gear is moved by

currents in the area. The length of buoy line used can depend on water

depth and tidal influence. In some areas the buoy line may be longer

than twice the water depth, and the tautness of the line is influenced

by the tidal cycle and other currents. Therefore, the line may be slack

during part of the current cycles in certain areas.

Slack floating line appears to represent a greater risk of

entanglement than taut line, particularly if the line is laying at or

near the surface. Right whales may be particularly susceptible to

entanglement in lines laying at or near the surface because of the

feeding behavior known as ``skim feeding'' during which whales move

slowly forward through a patch of zooplankton, keeping the mouth

slightly ajar for hours at a time. Right and humpback whales are also

known to feed at depth; however, the behavior when feeding near the

bottom or in the water column is poorly understood.

NMFS proposes to require sinking buoy lines or modified sinking

buoy lines, by January 1, 1998, in all lobster pot gear and gillnet

gear used by anchored gillnet fisheries covered by this plan be

required by January 1, 1998. In order to accommodate regional

differences in the practice of rigging buoy lines due to oceanographic

conditions, NMFS proposes to allow fishers to use a section of floating

line near the bottom of buoy lines in some areas. The Team discussed

using 10 fathoms (18.3 m) for this bottom floating section in some

areas such as the Great South Channel. Several TRT members mentioned

that allowing this amount of floating line in the buoy line in portions

of Stellwagen Bank and even the Great South Channel would represent

very little reduction in risk, since the water is not much deeper than

10 fathoms (18.3 m) in certain parts of those regions. Because

requiring one length, even for one area such as the Great South Channel

right whale critical habitat, is problematic, NMFS is proposing that

the floating line at the bottom of a modified sinking buoy line be no

longer than 10% of the depth of the water. NMFS is requesting comments

on whether 10 fathoms, 1 fathom, or other lengths is more appropriate

or whether a different percentage of the water column depth should be

specified as the minimum length.

Breakaway Buoy or Weak Buoy Line Requirement (except for driftnet

gear): NMFS proposes that by January 1, 1998, all buoy lines in lobster

pot gear and anchored gillnet gear considered in this plan be equipped

with a breakaway buoy at the top of the buoy line, or that traditional

buoy lines be replaced with a weak buoy line. The breakaway buoy or

weak buoy line would be designed to break in a whale entanglement

situation. Based on comments by the Team, NMFS is considering requiring

a maximum breaking strength of 150, 300 and 500 lbs (68 kg, 136 kg, and

227 kg, respectively). NMFS is proposing a 150 lb (68 kg) breaking

strength, which is the initial value recommended by the Commonwealth of

Massachusetts Endangered Whale Working Group and which was also

discussed by the Team. Comments are requested on the appropriateness

and practicality of these and other possible breaking strengths.

The purpose of this requirement is to reduce the serious injury and

mortality associated with an entanglement in the buoy line of fixed

gear. The goal of a breakaway buoy is to ensure that the buoy itself

does not contribute to the entanglement problem. A line without a buoy

or knot at the bitter end is expected to pass more easily through the

baleen of a whale and to slip more easily past an appendage. A line

which does not get hung up on the baleen or on an appendage because

there are no knots or buoys is believed to be less likely to initiate

thrashing behavior. It is believed that once a whale starts to thrash,

line can be wrapped around appendages and/or begin to cut into tissue.

The breakaway buoy is intended to prevent the entanglement from

progressing to that stage. While this modification may not reduce the

incidence of entanglement, breakaway buoys might be expected to at

least reduce the severity of an entanglement.

The intent of a weak buoy line is that it would snap if a whale

entangled in it but would be strong enough to haul up a heavier,

traditional buoy line that would in turn be used to haul up the fishing

gear. This measure may be the most effective gear modification of any

discussed by the Team for reducing the serious injury and mortality

rate from entanglement. As mentioned above, buoy line appears to have

been the part of the gear responsible for at least 4 of the 9 known

right whale entanglements in lobster pot gear. Right and humpback

whales have also been sighted entangled in buoy lines of sink gillnet

gear. If a brittle buoy line could be designed to break every time it

was encountered by a whale, this modification could reduce and possibly

eliminate the risk that entanglement would occur or at least ensure

that entanglement in a buoy line would result in serious injury or

mortality. NMFS assumes that use of such a brittle buoy line may not be

practicable, but that a weak line can be developed that will break at

least half of the time.

Since a breakaway buoy is not expected to reduce the possibility of

injury once a whale gets wrapped in line, the weak buoy line may

represent a greater conservation gain than would be achieved through

the breakaway buoy. However, the development of a weak buoy line is not

as far along as the development of a breakaway buoy. In addition, the

cost of developing and implementing a weak buoy line system may be

substantially greater than a breakaway buoy system. NMFS proposes to

require the use of breakaway buoys in 1998, but weak buoy lines are

encouraged to be used as an alternative. Comments are requested on

approaches to phasing in this requirement.

Gear inspection requirement: This proposed rule includes a

requirement that all gear used by the four specified fisheries be

hauled at least once every 30 days for inspection. This provision was

discussed by the ALWTRT for certain gear types to encourage fishers not

to ``store'' gear at sea.

Closures: In addition to gear modifications, the Team discussed the

use of time/area closures for sink gillnet and lobster pot gear in

areas of high use by right whales until fishing gear has been developed

that poses minimal risk of serious injury or mortality from

entanglement. Only gear demonstrated to pose minimal risk to whales

will be allowed in the restricted area.

Contingency Measures: Closure or other restrictions in the event of

an entanglement in modified gear: As noted above, NMFS is aware that it

will be difficult to determine with surety that required gear

modifications will reduce the rate of serious injury and mortality as

expected. NMFS proposes that if an injury or mortality of a right whale

occurs as the result of an entanglement in modified gear, NMFS will

assess the circumstances, including the level of injury, and determine

if

[[Page 16525]]

there is indication that the modification is not sufficient to reduce

the rate of serious injury or mortality to right whales. If such a

serious injury or mortality is attributable to modified gear in a

critical habitat area, NMFS would close the critical habitat area

during the restricted period. If such a serious injury or mortality is

attributable to modified gear in another restricted area, NMFS could

close the area or impose additional restrictions to ensure the

protection of right whales.

If the entanglement involved only the non-serious injury of a right

whale, or involved another large whale species, NMFS would again

investigate and determine whether the interaction was attributable to

modified gear. If the entanglement was attributable to modified gear,

NMFS could impose additional gear modifications or alternative fishing

practices, or close the area through a publication in the Federal

Register.

This measure would enable NMFS to take prompt action to protect

endangered whales if modified gear is not sufficiently effective. NMFS

will examine each entanglement event on a case by case basis to

determine whether the gear responsible is modified gear, and whether

the entanglement resulted in serious injury or mortality.

Closures or other restrictions based on unusual concentrations of

right whales: The measures in this rule are proposed to be implemented

in various areas based on current knowledge of migratory patterns of

right whales. Right whale movements are unpredictable, however, and

there are periods when right whales occur in certain U.S. waters at

other than expected times of the year and in areas other than right

whale critical habitat. Some of these times and areas may have large

amounts of fixed gear in the water. The risk of entanglement may be

particularly high in these unpredictable situations. For example, all

right whale entanglements in U.S. lobster gear where the location was

known occurred either outside critical habitat or outside the peak

season in critical habitat. As an added measure to reduce the

likelihood of entanglement in the anomalous years with unusual right

whale distribution patterns, the proposed regulations allow NMFS to

extend gear requirements or to close a restricted area. Notification of

such action would be published in the Federal Register. Under the

proposed rule, special area restrictions would be considered if four or

more right whales are sighted in an area for two consecutive weeks.

Right whales would be judged to have left the area if there are no

confirmed sightings for one week or more. NMFS requests comments on the

criteria for determining concentrations of right whales that may

require additional protection and suggestions for alternative criteria.

Risk reduction through other MMPA actions or fishery management

plan regulations: In addition to this proposed rule, certain other

measures that are expected to decrease the risk of entanglement of

whales in sink gillnets are either currently in effect or under

consideration, such as reductions in allowable days at sea and seasonal

or year-round area closures to protect groundfish. 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, which is expected to reduce the risk of

large whale entanglement associated with this gear by some fraction of

the same amount.

NMFS further notes that the Commonwealth of Massachusetts and the

New England Fishery Management Council (NEFMC) are considering net caps

in the sink gillnet fishery for future implementation to conserve

groundfish. These measures, if implemented, may further reduce the risk

of entanglement of right whales in sink gillnet gear, but are not a

part of this plan.

Some level of lobster pot gear effort reduction may occur under

gear conflict management measures such as those implemented by the

NEFMC in Southern New England. Further, NMFS is aware that 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, but are not a part of this plan.

Fishery-Specific Measures: The following measures are proposed for

the four groups of fisheries covered in the ALWTRP. The measures are

intended to decrease the risk of entangling large whales in gillnets

and lobster gear. Although they did not reach consensus, the Team

provided NMFS with a significant and useful framework for developing

proposed implementing regulations. The gear modifications proposed by

NMFS generally reflect the intent of the Team to reduce the risk of

entanglement without creating an undue burden on the fishing industry.

NMFS also considered whether the recommended measures would meet the

goals of the MMPA. Certain areas, identified as high use areas by large

whales during certain times of the year, were targeted for closures or

a high level of gear restrictions. The following area closures and gear

restrictions are intended to be implemented beginning in 1998 for the

period specified, except for measures proposed for the Southeast drift

gillnet fishery for sharks, which would be implemented beginning in

November 1997.

American Lobster Trap/Pot Fisheries

In addition to the buoy line requirements and contingency measures

described above for all fisheries, NMFS proposes the following area-

specific measures for the lobster trap/pot fisheries covered in this

plan.

As discussed above, groundlines of lobster pot trawls represent an

entanglement risk to whales, although the degree of risk relative to

other parts of the gear is unknown. The lobster industry uses either

sinking or floating groundline, depending on substrate and/or gear

densities. Floating line is preferred in many areas to avoid snagging

on rocky bottom or on other pots as well as to reduce chafing caused by

contact with pots and with the bottom. The degree to which line floats

between pots is unknown. Because right and humpback whales are known to

use the lower part of the water column for feeding or other activities,

even a modest curve to the groundline could still represent an

entanglement threat, especially where the length of groundline between

pots may be as long as the depth of the water column. The requirement

of sinking groundline would reduce the potential for a high profile of

the groundline and therefore reduce the entanglement threat represented

by that part of the pot trawl.

NMFS proposes to require modifications to lobster pot trawl

groundlines only in certain areas with primarily sandy bottoms to

minimize the amount of snagging and/or severing on rocky outcrops.

Restricting sinking lines to these areas would not be expected to have

a significant negative impact on the effectiveness in reducing whale

entanglements involving accidental encounters, since whales are not

likely to feed close to the bottom in rocky areas. However, there may

be cases when whales, particularly juveniles, are attracted to gear

even along rocky bottom, so some potential for entanglement remains.

The NMFS

[[Page 16526]]

gear review and technical advisory group is expected to consider

recommendations for alternatives to sinking groundline.

Cape Cod Bay Critical Habitat Area: Based on comments in the Team

Report, NMFS proposes to restrict fishing with lobster pot gear in the

Cape Cod Bay critical habitat area, including both Federal and

Commonwealth waters, from January 1 through May 15 of each year. Only

certain types of lobster pot gear would be allowed during this period

of high use by right whales. NMFS proposes to prohibit the use of

single lobster pots or trawls of less than 4 pots during this time

period. In addition, trawls could not be rigged with no more than 2

buoy lines. The purpose of these requirements is to reduce and/or

prevent an increase in the number of vertical lines in the water that a

whale might encounter. NMFS also proposes to require that all

groundlines used in lobster pot trawls in this area consist of sinking

line.

Based on comments in the Team Report, NMFS also proposes to

restrict fishing with lobster pot gear in the Cape Cod Bay critical

habitat area from May 16 through December 31. NMFS does not propose to

prohibit the use of single pots from May 16 through December 31,

because the likely response to this requirement may be for fishermen

who now use single pots in optimal lobster habitat to add pots to their

trawls rather than to decrease the number of buoy lines. Only one buoy

line would be allowed on trawls of less than 4 pots. Otherwise, gear

modifications proposed for the May 16 through December period are

similar to those for the January 1 through May 15 period and would

include breakaway buoy or weak buoy line, sinking buoy lines, and

sinking groundlines.

Great South Channel Critical Habitat Area: Based on comments in the

Team Report, NMFS proposes to close all of the Great South Channel

critical habitat area from April 1 to June 30 of each year to lobster

pot gear until the Assistant Administrator determines that alternative

fishing practices or gear modifications have been developed which

reduce the risk of serious injury or mortality to whales to acceptable

levels. As noted above, if right whale concentrations outside the usual

``high-use'' period warrant additional action, the area may be closed,

through a publication in the Federal Register.

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

Loran C 13710 line from April 1 to June 30 appears inconsistent with

what NMFS proposes for 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 proposing closure of the Great South Channel critical

habitat to lobster pot gear during the high right whale use period, but

proposes gear modifications 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,

nearshore 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.

In addition, differences in oceanographic conditions in the two

regions may make a particular gear modification less effective in one

area relative to the other. For example, the Great South Channel is

much deeper than Cape Cod Bay and exhibits much stronger tides,

requiring different fishing practices. NMFS' gear review and technical

advisory group will be asked to consider oceanographic conditions in

the Great South Channel in making gear recommendations that might be

effective and practicable in that area.

Although the Team Report contains discussion regarding the closure

of Groundfish Management Area I, which covers part of the Great South

Channel right whale critical habitat, to lobster fishing during the

high whale use period, NMFS does not propose closing the area to

lobster pot fishing at this time, as the frequency of right whale

sightings in this area (already closed to gillnet gear for groundfish

conservation measures) is quite low and the fishing effort minimal.

Comments on this decision are requested.

The Team Report provided comments on the lobster pot fisheries in

the Great South Channel critical habitat area outside of the known high

right whale use period. NMFS proposes to restrict lobster fishing in

the Great South Channel right whale critical habitat area from January

1 through March 31 and July 1 through December 31 of each year

(beginning in 1998). Proposed restrictions during this time period

include only sinking or modified sinking buoy lines, and breakaway

buoys or weak buoy lines.

Stellwagen Bank/Jeffreys Ledge Area: NMFS proposes to define the

Stellwagen Bank/Jeffreys Ledge (SB/JL) area as the area delineated by

the following points: the shoreline at 43\1/2\ deg. 00' N out to

70 deg. W, then south along that line to 42 deg. N, then west along

that line to the Massachusetts shoreline at the western end of Cape Cod

Bay, excluding right whale critical habitat. The Team Report includes

comments indicating a different northern boundary (43 deg.15' rather

than 43 deg.30'). The northern and eastern boundaries proposed here are

consistent with one of the groundfish area closures in the Northeast

Multispecies Fishery Management Plan.

Based on the Team Report and subsequent comments regarding this

area, NMFS proposes to restrict lobster fishing in the SB/JL area from

January 1 through December 31 of each year (beginning in 1998).

Proposed restrictions during this time period include sinking

groundline, sinking or modified sinking buoy lines, and breakaway buoys

or weak buoy lines.

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 SB/JL may be necessary.

All Other Areas throughout the East Coast Range of the American

Lobster Pot Fishery not Addressed by Previous Measures: NMFS proposes

to restrict fishing with American lobster pot gear from January 1 to

December 31 in all other U.S. state and Federal waters north of 41 deg.

N latitude and from December 1 to March 31 in all state and Federal

waters south of 41 deg. N latitude. Beginning January 1, 1998, NMFS

proposes to restrict these areas to allow only lobster pot gear that

has sinking buoy lines or modified sinking buoy lines. NMFS requests

comments on the possible exemption of waters landward of barrier

islands, such as those in New Jersey and North Carolina, and other

shallow water areas where whales are less likely to occur.

[[Page 16527]]

New England Multispecies Sink Gillnet Fishery

In addition to the buoy line requirements and contingency measures

described above for all fisheries, NMFS proposes the following area-

specific measures. Consistent with the comments of the Team Report,

NMFS proposes a suite of modifications specific to sink gillnets. The

purpose of these modifications is to maximize the probability that a

whale will be able to break free of a sink gillnet. The modifications

include prohibiting floating line everywhere except the headrope (cork

line) and the bottom-most section of the buoy line, placing weak links

between the net panels on the headrope and footrope (lead line) to

reduce amount of gear attached to whale in case of entanglement,

increasing length of the lines which connect the net to the anchor to

maximize the holding power of the anchors, and limiting the thickness

of headrope to enhance the likelihood that it will part when

encountered by a whale. These measures would be implemented

simultaneously because weak links are not expected to function properly

without sufficient anchoring and scope of the groundline/bridle, and

using more anchoring power without weak links could result in increased

rate of drowning. Industry TRT members indicated that some of these

modifications, such as an increased bridle-to-anchor length and

increased anchoring power, are already in use to minimize loss of gear

to mobile gear. NMFS solicits comments on the likely effectiveness of

this suite of gear modifications and in particular on minimal breaking

strengths of weak links which could be used while still allowing

fishermen to haul their gear. In addition, NMFS also requests comments

on typical depth or height of gillnets and whether that depth warrants

the requirement of weak links in the footrope as well as the headrope.

Cape Cod Bay Critical Habitat Area: The Team Report treated state

and Federal waters of right whale critical habitat in Cape Cod Bay

separately and did not reach consensus on gillnet restriction measures

in the Federal portion of these waters. The Team Report discussed

adopting for the state waters of Cape Cod Bay critical habitat the area

and gear restrictions implemented by the Commonwealth of Massachusetts

for this same area. NMFS supports the regulations adopted by the

Commonwealth of Massachusetts for protecting right whales from

entanglement in critical habitat within Massachusetts state waters of

Cape Cod Bay. To provide consistent protection for right whales

throughout the critical habitat area, NMFS proposes to treat state and

Federal waters as one unit in Cape Cod Bay. NMFS intends to work

closely with the Commonwealth of Massachusetts as the State

regulations, which were implemented under emergency authority, are

reviewed and modified through regular rulemaking procedures. NMFS will

review State regulations in the context of this take reduction plan and

its inherent goals.

Based on comments in the Team Report, NMFS proposes that the entire

right whale critical habitat in Cape Cod Bay be closed to sink gillnet

gear from January 1 through May 15 of each year, until the Assistant

Administrator determines that alternative fishing practices or gear

modifications which significantly reduce the risk of serious injury or

mortality to whales have been developed. As noted above, if whale

concentrations outside the usual ``high-use'' period warrant additional

action, the area may be closed for additional periods, through a

publication in the Federal Register.

To provide additional protection for all large whales, NMFS

proposes to restrict sink gillnet fishing in the entire Cape Cod Bay

critical habitat area from May 16 through December 31 of each year to

allow only sink gillnet gear that has been modified as described above.

Great South Channel Critical Habitat Area: Based on comments in the

Team Report, NMFS proposes to close the portion of right whale critical

habitat east of Loran C line 13710/43940 (Northwest Boundary) and

13710/43650 (Southwest Boundary) from April 1 through June 30 to sink

gillnet gear until the Assistant Administrator determines that

alternative fishing practices or gear modifications have been developed

which reduce the risk of serious injury or mortality to whales to

acceptable levels. As discussed above, if whale concentrations outside

the usual ``high-use'' period warrant additional action, the area may

be closed.

NMFS recognizes that the Team Report did not recommend a complete

closure of the entire Great South Channel critical habitat area to sink

gillnets. In the narrow band west of the Loran C points 13710/43940 and

13710/43650, the Team considered the likelihood of entanglement of

right whales remote. A recent NMFS analysis indicates that only 3% of

historical right whale sightings occurred along that western edge of

critical habitat. Further, this band is economically important to the

sink gillnet fishery.

Based on comments in the Team Report, NMFS proposes to restrict

sink gillnet fishing in the portions of the Great South Channel right

whale critical habitat area east of the Loran C 13710 line from January

1 to March 31 and July 1 to December 31 of each year and the portion of

right whale critical habitat west of Loran C 13710/43940 (Northwest

Boundary) and 13710/43650 (Southwest Boundary) (the ``sliver area'')

from January 1 through December 31 of each year to allow only sink

gillnet gear that has been modified according to the specifications

described above.

Stellwagen Bank/Jeffreys Ledge: This area is defined as for the

lobster pot fishery. Based on comments in the Team Report, NMFS

proposes year-round restrictions in the SB/JL area to allow only sink

gillnet gear that has been modified according to specifications

described above. Fishers should be aware that humpback and/or right

whales are present in the SB/JL area most months of the year and that

if gear modifications are not sufficient to reduce serious injury and

mortality to right and humpback whales to levels required under the

MMPA, additional restrictions or closures may be necessary.

All Other Areas throughout the Range of the Northeast Sink Gillnet

Fishery not Addressed by Previous Measures: NMFS proposes to restrict

fishing with sink gillnet gear from January 1 to December 31 in U.S.

state and Federal waters east of 72 deg. 30' W (dividing line between

Northeast sink gillnet fishery and mid-Atlantic coastal gillnet

fishery) and north of a line running due east from the North Carolina/

South Carolina border. Beginning January 1, 1998, NMFS proposes to

restrict sink gillnet fishing in this area to gear with sinking buoy

lines or modified sinking buoy lines, and breakaway buoys or weak buoy

lines. Beginning in 1999, the full suite of measures described above

are proposed to be required.

Since gillnet fisheries in Long Island Sound (inside a line from

Orient Point-Plum Island-Fishers Island-Watch Hill), and waters

landward of the first bridge embayments in Rhode Island and southern

Massachusetts are classified as Category III inshore gillnet fisheries

rather than as part of the Category I northeast sink gillnet fishery,

those inshore fisheries would be exempt under this proposed rule.

U.S. Mid-Atlantic Coastal Gillnet Fisheries

All anchored gillnet fisheries: NMFS proposes to restrict fishing

with all anchored gillnet gear from December 1 through March 31 in mid-

Atlantic waters from Shinnecock Inlet on the southern Long Island, New

York shore

[[Page 16528]]

south to a line running due east from the North Carolina-South Carolina

border. Mid-Atlantic gillnet fisheries classified as Category III

inshore gillnet fisheries are exempt from this proposed rule. NMFS

requests comments on the possible exemption of waters landward of

barrier islands, such as those in New Jersey and North Carolina, and

other shallow water areas where whales are less likely to occur.

Beginning January 1, 1998, and in addition to the buoy line

requirements and contingency measures described above for all

fisheries, NMFS proposes to restrict sink gillnet fishing in this area

during the period from December 1 through March 31 to gear that has

been modified according to the suite of measures outlined above for

Northeast sink gillnet gear.

Beginning in 1998, with respect to mid-Atlantic coastal gillnet

anchored gear that is not sink gillnet gear, NMFS proposes to require

only the standard requirements for sinking buoy lines or modified

sinking buoy lines, and breakaway buoys or weak buoy lines during the

winter/spring period from December 1 through March 31. Weak links are

not proposed for anchored gillnets other than sink gillnets because the

weak link system is not designed for nets fished on the surface or in

the upper \2/3\ of the water column.

Floating/drift gillnets: For the area and time outlined above, NMFS

proposes to require all vessels using driftnets to haul all such gear

and stow all such gear on the vessel before returning to port.

Southeast U.S. Driftnet Fishery

Based on comments in the Team Report, NMFS proposes that the area

from Sebastian Inlet, FL (27 deg.51 N latitude) to Savannah, GA

(32 deg. N latitude) out to 80 deg. W longitude, be closed to driftnet

fishing, except for strikenetting, each year from November 15 to March

31. Strikenetting would be permitted under certain conditions set forth

in the rule. Most of this area is right whale critical habitat.

Also based on comments in the Team Report, NMFS proposes to require

observer coverage for the use of driftnets in the area from West Palm

Beach (26 deg.46.5' N latitude) to Sebastian Inlet (27 deg.51' N

latitude), from November 15 to March 31 of each year. Notifications

must be provided at least 48 hours prior to the fishing trip so that

arrangements for an observer may be made. An observer must be taken on

a fishing trip in this area if requested by NMFS.

Reduction of Inactive Fishing Gear as Marine Debris. The Team

Report discusses measures that could be taken to minimize the amount of

fishing gear that has been damaged and set adrift, either by storms or

user group conflicts, as it is believed that some marine mammal

entanglements may involve such gear. Specific measures in the Team

Report include: (1) Encourage participants in all fisheries to avoid

discarding gear at sea; (2) encourage vessel operators to retrieve and

deposit on shore any inactive gear encountered (existing penalties that

would discourage this should be eliminated); (3) require any commercial

fishing vessel that accidentally captures or snags fixed gear in a

trawl or by other means or sets fixed gear adrift to retrieve all such

gear and deposit it on shore (existing penalties that would discourage

this should be eliminated); (4) require that such gear deposited on

shore which carries any identifying markings be reported to the

appropriate authorities. A system for tracking such gear should be

established, allowing owners to retrieve gear; (5) NMFS should take

appropriate measures for reducing gear conflicts that can result in

gear set adrift (examples are implementation of the Gear Conflict

Resolution for Offshore New England and the use of Vessel Tracking

Systems); (6) require use of biodegradable, corrodible, or other

rapidly degrading gear components where appropriate; (7) establish

dockside disposal/recycling facilities at all ports used by commercial

fisheries; and (8) make use of existing programs for recycling and

disposing of inactive gear.

NMFS agrees that the reduction of ``ghost'' gear may reduce the

number of entanglements of marine mammals in fishing gear. NMFS intends

to notify all Atlantic fisheries permit holders of the importance of

bringing gear back to shore to be discarded properly. Additionally,

NMFS proposes to review regulations currently in place concerning

fishing gear or fishing practices that may increase or decrease marine

``ghost'' gear and to determine what additional measures may be useful

in reducing the potential for whale entanglement by this gear.

NMFS has not included a Vessel Tracking System provision in this

proposed rule pending the outcome and final disposition of this

electronic monitoring system within the commercial fishing industry.

NMFS invites comments on this issue. This system may encourage mobile

gear vessels to avoid towing through areas where fixed gear is set and

may encourage vessels to pick up damaged and inactive gear.

Disentanglement Efforts. When entangled in most fishing gear, other

than extremely heavy or anchored gear, whales may swim off with some or

all of the gear still trailing. Some whales may eventually free

themselves or survive for substantial periods of time while trailing

gear, but the continued survival of such animals may be severely

jeopardized by this gear.

In 1984, the Center for Coastal Studies (CCS) in Provincetown, MA

developed an approach for disentangling free-swimming large whales.

This process can be very dangerous, and CCS is currently the only

organization authorized to attempt such disentanglements on the U.S.

Atlantic coast. NMFS has contracted CCS to perform this service in the

Northeast area by supporting current efforts and the establishment of a

regional Disentanglement Network (Network). Criteria for participation

in the Network have been established, and experienced teams have been

formed for New England waters. Additionally, rapid response capability

has been developed to allow deployment to remote coasts or at sea. A

relationship has been established with the Canadian Department of

Fisheries and Oceans and whale biologists operating in the Bay of Fundy

to respond to entanglement events in Canadian waters of the Gulf of

Maine. Local teams have been identified for other areas along the U.S.

Atlantic coast. These resources were developed primarily for response

to entangled right whales.

The Team Report discussed the following actions to improve and

expand the effort to disentangle large whales along the east coast of

the U.S.: (1) Continue authorization and support for the current

Disentanglement Network; (2) expand the Network to the U.S. Mid-

Atlantic region by training identified response/support teams in

Virginia, North Carolina and the Southeastern U.S. right whale critical

habitat regions, and by developing protocols appropriate to each

region; (3) support education and training of fishermen in

identification, reporting and disentangling large whales, where

appropriate, in all identified risk areas; (4) increase monitoring of

at-risk whales in the region through opportunistic and dedicated

surveys; (5) request support from the U.S. Coast Guard (USCG) in the SE

Region similar to the level of support committed in the NE region, to

achieve a coordinated effort; (6) seek support and coordination with

other agencies with similar or overlapping responsibilities; (7) ensure

fishermen are informed of requirements for reporting and

indemnification resulting from the issuance of incidental take permits,

and explore further possible

[[Page 16529]]

incentives for reporting entangled whales; (8) allow the Network to

authorize individuals to stand by or attach tracking equipment to

entangled gear; (9) consider all ways the 500-yard approach regulation

may affect right whale protection; (10) consider reimbursing vessel

operators for real expenses or loss of regulated fishing days when

standing by a whale confirmed by an authorized group as entangled; (11)

work with appropriate groups to ensure accurate, thorough and

standardized reporting of entanglements and results in a central

database; and (12) develop an analytical approach for future

entanglement reports which considers an increase in reporting due to

the actions referenced above, and which counts successful

disentanglements in assessments of take reduction.

NMFS intends to continue its authorization of and work to improve

the current Disentanglement Network. NMFS has been working

cooperatively with the Network and the USCG to extend the

disentanglement efforts into mid-Atlantic and Southeastern waters.

Currently, NMFS provides funds only for disentanglement in the

Northeast. Disentanglement efforts have already been initiated outside

New England waters; for example, during the winter of 1996, NMFS, USCG,

the states of Georgia and Florida, the New England Aquarium and the

Center for Coastal Studies worked cooperatively to attempt

disentanglement and subsequent tracking of a right whale off the east

coast of Florida. NMFS will work with CCS to form local ``first

response'' teams which can respond to entanglements in other areas and

of other species prior to (or in some cases in lieu of) dispatching the

CCS rapid response teams. Included among improvements to the

Disentanglement Network will be a strong educational component, to

train fishers to identify and report entangled large whales. Such

education will be included during skippers workshops planned under the

``Education and Outreach'' portion of this ALWTRP. Additional training

specific to the Disentanglement Network may also be held separately, as

needed. NMFS is also funding and/or working cooperatively with other

groups to expand the current survey effort to better monitor at-risk

areas. For example, year-round aerial and vessel surveys in the mid-

Atlantic have recently been funded. These surveys will increase

opportunities for sighting entangled whales.

NMFS has been working cooperatively with the USCG in the Southeast

U.S. as well as in the northeast to provide protection to whales. The

USCG helps fund the southeast and northeast Early Warning Systems,

which involve an aerial monitoring program designed to help avoid

collisions between vessels and right whales on their calving grounds.

The USCG also has been very helpful in providing vessel support for

disentanglement efforts and carcass recovery in the southeast. In order

to formalize this cooperative effort, NMFS may enter into a Memorandum

of Understanding with the southeastern USCG districts, as has been

accomplished with the First Coast Guard District operating in the

northeast. NMFS is already cooperating extensively with coastal state

agencies such as the Georgia Department of Environmental Resources and

the Florida Department of Environmental Protection in disentanglements

and other right whale recovery efforts. NMFS will continue working

cooperatively with these state agencies, and will seek to expand such

efforts to other state agencies involved with endangered marine species

issues. Recently, the states of Maine and Massachusetts have been

working with NMFS and the Disentanglement Network to develop whale

identification materials and information on disentanglement to be

distributed to vessels for use at sea.

NMFS understands that cooperation by fishermen and others in

reporting entangled whales is essential for the ultimate success of the

ALWTRP. Reporting entanglement events creates the opportunity for the

successful disentanglement of a whale that is entangled in fishing gear

and is still alive. Additionally, reports of entangled whales, both

dead or alive, improves the information available for assessing the

success of this plan and developing future measures.

Takes of marine mammals that are not listed as endangered or

threatened are authorized under section 118 of the MMPA for vessels

that are registered in the Marine Mammal Authorization Program.

However, takes of endangered species can only be authorized under

certain conditions specified in section 101(a)(5)(e) of the MMPA and if

an incidental take statement is issued under the Endangered Species Act

(ESA). Among other requirements, NMFS must determine that the expected

level incidental serious injury or mortality of a threatened or

endangered marine mammal resulting from commercial fishing operations

will have a negligible impact on such stock. Until these conditions

have been met, NMFS could not authorize takes of endangered whales,

even if a take occurs by a vessel operating in compliance with the

ALWTRP. Currently, takes from the western North Atlantic stocks of

right, humpback and fin whales are not authorized.

Consequently, NMFS does not have the authority to exempt fishers

from ESA provisions that prohibit taking endangered whales. NMFS does,

however, exercise broad prosecutorial discretion in deciding on a case

by case basis when to prosecute and what level of penalty to seek. When

exercising such discretion, NMFS will consider whether the taking was

reported promptly, and will regard timely reporting as a mitigating

factor when determining the appropriate enforcement response. This

approach balances NMFS' statutory duty to endorse provisions of the ESA

with its strong desire to minimize non-reporting for fear of

prosecution.

NMFS has considered the potential effects of the 500-yard interim

final rule on future disentanglement efforts, and has incorporated into

that rule an exception to allow approaches to investigate a right whale

or injury or to assist in disentanglement provided that permission is

received from NMFS designee prior to the approach. In addition, in

order to facilitate greater success of disentanglement events, NMFS is

considering other actions so that vessels operating in the Northeast

Multispecies and American lobster fisheries may assist in

disentanglement efforts. NMFS has no mechanism for authorizing

disbursement of funds for reimbursing vessel operators for expenses,

but encourages conservation organizations to consider implementing such

a program. NMFS will approach the fishery management councils regarding

reimbursing any loss of regulated fishing days resulting from a

fisher's participation in a disentanglement effort. A similar

provision, called the ``good samaritan'' provision, exists in several

fishery management plans to obtain credit for fishing time lost while

assisting search and rescue operations.

NMFS currently maintains a centralized entanglement data base, and

intends to work cooperatively with appropriate groups to improve the

quality of the data and standardize reporting. Improvements to the

current entanglement data base would include incorporation of

supplementary data from original sources and information from

examination of gear seen on or removed from whales. Tracking of

successful disentanglements are to be incorporated in the data base,

and

[[Page 16530]]

would be considered in assessing progress of take reduction measures.

As stated above, not all whale entanglements result in serious

injury or mortality. Monitoring of scarification and comparison of

historic levels in the population, as noted by the Team, may help

provide a basis for determining whether the various take reduction

measures proposed in this plan have been effective in decreasing levels

of interaction between whales and fishing gear.

Supplementary Take Reduction Initiatives

Fisher Education and Outreach

The Team Report acknowledges that effective implementation of the

ALWTRP will require the active participation of a majority of the

fishing industry. To encourage this, the Team Report suggests that NMFS

form an advisory group to assist in the implementation of educational

workshops and outreach strategies to disseminate information to

fishermen on measures to reduce large whale entanglements. The report

recommends that education and outreach workshops be held to: (1) Inform

fishermen of provisions of the ESA and MMPA, as well as intent and

requirements of the ALWTRP; (2) train fishermen in deployment and

maintenance of proposed gear modifications; (3) distribute fact sheets

for use in whale identification and provision of information on

seasonal distribution patterns; (4) train fishermen in protocol for

whale disentanglement; (5) supply observer, stranding and entanglement

data to fishermen; (6) encourage timely reporting of marine mammals

that may be entangled in fishing gear; and (7) solicit information from

fishermen on how to reduce marine mammal interactions. The Team Report

recommends that such workshops be held throughout the Northeast, Mid-

Atlantic and Southeast regions of the U.S. Atlantic coast, and that

fishermen be notified by mail of dates, locations and times of the

proposed workshops. The Team Report also recommends that public

relations materials should be developed and distributed through

newsletters, newspapers, radio, television news, and the Internet.

NMFS concurs with the recommendations of the Team Report to conduct

fishermen education workshops, as well as other outreach strategies.

Although NMFS does not propose to form a formal advisory group, NMFS

intends to seek assistance concerning the workshops from SeaGrant and

other groups that are experienced in outreach on marine issues.

Workshops are proposed to be held throughout the areas of the affected

fisheries to inform fishers of gear and area requirements as well as to

address other topics as outlined in the Team Report.

Other recommendations contained in the report include promotion of

``responsible fishing practices.'' For example, the Team Report

discusses the following measures with respect to the mid-Atlantic

gillnet fisheries: (1) Gillnets and other fishing gear should not be

set near whales; (2) gear should be removed as soon as possible if

whale(s) move into the area being fished; (3) fishers using un-anchored

gillnet gear during the high-risk period (December 1--March 31) should

remain with actively fishing gear; and (4) any observed entanglements

should be reported. NMFS proposes that such practices be discussed and

supported during the fishermen education workshops described above.

Monitoring of Whale Stock Distribution and Entanglements

The Team Report acknowledges that the long-term success of the plan

depends on the ability to monitor interactions between whales and

fisheries, as well as an improved knowledge of whale distribution and

movements. The Team Report asserts that successful real-time monitoring

of whale distribution could lead to better dynamic management (i.e.,

flexible area closures and/or gear modifications required during

certain periods in certain areas) designed to avoid or respond to

entanglements of large whales in fishing gear. The Team Report comments

that data collection and monitoring programs should be created where

needed, or existing programs improved to achieve a dynamic approach to

reducing large whale entanglements, as well as to assess the success of

the ALWTRP. The following items were included in the Team Report as

significant aspects of an overall take reduction program:

Whale Distribution and Movement Patterns

Issues to be addressed: (1) Distribution of whales; (2) movement

patterns; and (3) stability of distribution in high-use/critical

habitat areas. Possible measures to address these issues include

establishing long-term and real time monitoring of whale distribution

via aerial and vessel surveys, telemetry and photo documentation.

Whale Entanglements and Mortalities

Issues to be addressed: (1) Mechanisms of whale entanglements; (2)

geographic areas and portions of water column where whales become

entangled; (3) gear whales are entangled in, rate of entanglement,

serious injury and mortality; (4) effect on population size and

recovery; (5) survivorship of entangled whales; and (6) survivorship of

disentangled whales. Possible measures to address these issues are: (1)

train personnel to recognize signs of entanglement-related injuries and

improve stranding report consistency and accuracy; (2) establish

repository for gear removed from stranded and/or entangled whales and

develop process for examination and identification; and (3) develop

entanglement/interaction reporting protocols to encourage fisher

participation in monitoring and disentanglement efforts.

Fishing Effort

Issues to be addressed: (1) Status of current information on

occurrence and distribution regarding effort and gear type; and (2)

identification of information needed for effective monitoring. Possible

measures to address these issues are: (1) Improve reporting of fishing

effort for area fished, amount of gear, and species targeted, by day;

(2) develop improved methods for gear identification and reporting of

gear loss; (3) examine fishing practices other than those considered in

this ALWTRP for potential impacts to large whales; and (4) improve

fishery participation in data collection needs.

Dynamic Management

Issues to be addressed: (1) Surveillance-based management is useful

for supporting research for implementation of the ALWTRP; and (2)

research should echo the State of Massachusetts Plan for reducing right

whale takes. Possible measures to address these issues are: (1) NMFS

should work with appropriate agencies and research groups to develop a

surveillance-based management plan to protect right whales; and (2)

establish a narrow and appropriately focused system of dynamic

management.

NMFS agrees that the issues raised are important elements in

understanding the nature of whale entanglements and developing

subsequent management measures to reduce such entanglements. NMFS

currently monitors whale distribution and movement patterns, and

supports additional efforts for photo-identification, life history and

other studies. Real-time monitoring of whale movements for fishery

[[Page 16531]]

management purposes is being used by the State of Massachusetts in

conjunction with the newly established early warning system for ship

strikes in Cape Cod Bay. The success of this program will be reviewed

and may be expanded to other areas, if appropriate.

NMFS plans to seek ways to incorporate the comments in the Team

Report regarding entanglements and resulting mortalities into the

existing Disentanglement Network efforts. Additional research may be

supported through alternate funding sources such as Saltonstall-Kennedy

grants or other such sources. Improving current information on fishery

participation in data collection, methods for gear identification, and

reporting gear loss will be effected through a combination of

regulations and fisher education and outreach workshops. NMFS proposes

to investigate and consult with the appropriate state agencies to

improve information on fishery effort distribution. Monitoring effort

in terms of the amount of gear present in the water (e.g., number of

vertical lines or length of net) is an important element of determining

whether effort reduction measures have been successful, or whether it

has simply been displaced to other areas where whale entanglements may

still occur.

Joint Initiatives With Canada to Reduce Whale Bycatch in Commercial

Fisheries

Large whales are known to be taken in lobster, gillnet, trap and

weir fisheries in Canadian waters. The Team Report recognizes that

regulatory and management regimes differ between Canada and the U.S.,

and agrees with the position of Canada that there is need to develop

similar and complementary strategies to reduce the incidental take of

large whales by commercial fisheries in Canadian Atlantic waters. It is

the understanding of the Team that the Canadian Government is

considering legislation which, if implemented, would require recovery

plans for whale species identified as endangered, threatened or

vulnerable. Canada is expected to establish a consultative program

similar to the Team. This program would develop, within existing

regulatory and management frameworks, programs that are compatible and

complementary to the measures proposed by the Team. The Team Report

comments that once the ALWTRP is open to public comment, NMFS should

initiate discussions with the Canadian Department of Fisheries and

Oceans (DFO) to: (1) Obtain comments from DFO on the ALWTRP; (2) urge

Canada to develop a joint recovery plan under its Endangered Species

Act, when final; (3) institute mechanisms to reduce large whale

entanglements in Canadian waters, as well as a means to evaluate the

effectiveness of any proposed take reduction strategies; and (4)

outline a timetable for meetings between NMFS officials, Team

representatives and DFO to review progress toward reducing

entanglements of large whales in U.S. and Canadian waters.

NMFS has been working cooperatively with the DFO towards take

reduction efforts for both harbor porpoise and large whales for some

time. NMFS anticipates continuation of these cooperative efforts. DFO

participated as an observer on the Team, and indicated that Canada is

expected to enact a new Endangered Species Act. Under this act, DFO

would develop a joint recovery plan with NMFS, and form their own TRT.

NMFS intends to continue to support and encourage these conservation

efforts, 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.

Exploration of Market Incentives to Reduce Whale Bycatch in Commercial

Fisheries

The Team discussed the formation of a committee of Team members and

other interested parties to explore and develop incentives, including

market and other voluntary incentives, for reducing entanglements of

large whales. Also discussed was whether this committee should develop

a process for incorporating these incentives into the take reduction

effort. The committee, as envisioned by the Team, would include persons

with experience or expertise in conservation, market-based incentives,

seafood processing and distribution, and various fishing strategies.

NMFS has not proposed to include this aspect of the Team's Report

in the plan. NMFS believes it is more important to devote its resources

to other aspects of this plan. Such efforts may be considered at future

team meetings. Members of the Team and/or other interested parties may

form a committee to investigate market or other voluntary incentives to

reducing whale entanglements to present to the Team for consideration.

Classification

This proposed rule does not contain new collection-of-information

requirements subject to the Paperwork Reduction Act.

NMFS prepared an Initial Regulatory Flexibility Analysis (IFRA)

that describes the impact this proposed rule, if adopted, would have on

small entities. The American lobster pot, New England multispecies sink

gillnet, Mid-Atlantic coastal gillnet, and Southeast driftnet fisheries

are directly affected by the proposed action and are composed primarily

of small business entities. The number of state and federal permit

lobster permit holders is estimated to be 13,000. The numbers of

vessels in the New England multispecies sink gillnet, Mid-Atlantic

coastal gillnet, and Southeast shark driftnet fisheries are estimated

to be 350, 650, and 10, respectively. The proposed rule does not

include reporting or recordkeeping requirements, but does include

requirements that fishing gear be marked and that gear be modified in

various ways to reduce potential interactions with large whales. In

certain cases, area closures are proposed.

Currently, the American Lobster Fishery, the New England

Multispecies Fishery, the weakfish and striped bass portion of the mid-

Atlantic coastal gillnet fishery, and the Atlantic shark fishery are

subject to Federal regulations under 50 CFR Part 649, Subpart F of Part

648, Part 697, and Part 678, respectively. This proposed rule is

designed to complement those existing regulations and fishery

management objectives by reducing the bycatch of large whales in these

fisheries. A variety of regulatory alternatives were considered,

including no action, area closures, and various gear modifications and

restrictions as discussed above. With respect to some critical habitat

areas, area closures are proposed in order to provide the necessary

level of protection for the critically endangered northern right whale.

In most cases, however, gear modifications represent the preferred

alternative; the plan was designed to achieve the goals of the MMPA

while minimizing the economic impact on small entities.

The Assistant Administrator for Fisheries, NOAA, prepared a draft

environmental assessment (draft EA) for this proposed rule under the

National Environmental Policy Act. A copy of the draft EA and the IFRA

is available upon request (see ADDRESSES).

References

Blaylock, R.A., J.W. Hain, L.J. Hansen, D.L. Palka, and G.T.

Waring. 1995. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock

Assessments. NOAA Technical Memorandum NMFS, NOAA-TM-NMFS-SEFSC-363.

211p.

Team Report. 1997. Draft Atlantic Large Whale Take Reduction

Report. Report prepared by the Atlantic Large Whale Take Reduction

Team and submitted to the

[[Page 16532]]

National Marine Fisheries Service February 4, 1997. 79pp.

List of Subjects in 50 CFR Part 229

Administrative practice and procedure, Confidential business

information, Fisheries, Marine mammals, Reporting and recordkeeping

requirements.

Dated: April 1, 1997.

Charles Karnella,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 229 is

proposed to be amended to read as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE

MAMMAL PROTECTION ACT OF 1972

1. The authority citation for part 229 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq.

2. In section 229.2, definitions of ``American lobster or

Lobster'', ``Anchored gillnet'', ``Breakaway buoy'', ``Bridle'', ``Buoy

line'', ``Driftnet, drift gillnet or drift entanglement net'', ``Fish

with or fishing with'', ``Footrope'', ``Gillnet'', ``Groundline'',

``Headrope'', ``Lobster pot'', ``Lobster pot trawl'', Mid-Atlantic

coastal waters'', Northeast waters'', ``Other anchored gillnet'',

``Sink gillnet'', ``Sinking line'', Southeast waters'', ``Spotter

plane'', ``Stellwagen Bank/Jeffreys Ledge area'', ``Strikenet or to

fish with strikenet gear'', ``Tended gear or tend'', ``U.S. waters'',

``Weak buoy line'', and ``weak link'' are added in alphabetical order

to read:

Sec. 229.2 Definitions.

* * * * *

American lobster or lobster means the species Homarus americanus.

Anchored gillnet means any gillnet gear, including sink gillnets,

that is set anywhere in the water column and which is anchored, secured

or weighted to the bottom.

* * * * *

Breakaway buoy means a buoy line equipped with a breakable section

near the top (buoy) end of the line that will part when subjected to

certain pull pressure and, after parting, will result in a knotless

end, not thicker than the diameter of the line.

Bridle means the lines connecting a gillnet to an anchor or buoy

line.

Buoy line means a line connecting fishing gear in the water to a

buoy at the surface of the water.

* * * * *

Driftnet, drift gillnet, or drift entanglement gear means gillnet

gear that is not anchored, secured or weighted to the bottom.

Fish with or fishing with means to use, set, or haul back gear or

allow gear that is set to remain in the water.

* * * * *

Footrope means the line, weighted or otherwise, to which the bottom

edge of a gillnet is attached.

Gillnet means fishing gear consisting of a wall of webbing or nets,

designed or configured so that the webbing or nets are held

approximately vertically in the water column designed to capture fish

by entanglement, gilling, or wedging. Gillnets include gillnets of all

types such as sink gillnets, other anchored gillnets, and drift

gillnets.

Groundline, with reference to lobster pot gear, means a line

connecting lobster pots in a lobster pot trawl, and, with reference to

gillnet gear, means a line connecting a gillnet or gillnet bridle to an

anchor or buoy line.

Headrope means the line at the top of a gillnet from which the mesh

portion of the net is hung.

* * * * *

Lobster pot means any trap, structure or other device that is

placed on the ocean bottom and is designed to or is capable of catching

lobsters.

Lobster pot trawl means more than one lobster pot attached to a

groundline.

Mid-Atlantic coastal waters means waters west of the area bounded

by the following points: the southern shoreline of Long Island, New

York at 72 deg.30'W, then due south to the intersection of 72 deg.30'W

with a line running due east from the North Carolina/South Carolina

border, then due west along that line to the North Carolina/South

Carolina border.

* * * * *

Northeast waters means those U.S. waters east of 72 deg.30'W and

north of a line running due east from the Virginia-North Carolina

border.

* * * * *

Other anchored gillnet means any anchored gillnet except sink

gillnet.

* * * * *

Sink gillnet has the meaning specified in 50 CFR 648.2.

Sinking line means line that sinks and does not float at any point

in the water column. Polypropylene line is not sinking line unless it

contains a lead core.

* * * * *

Southeast waters means waters south of a line extending due

eastward from the North Carolina/South Carolina border.

* * * * *

Spotter plane means a plane that is deployed for the purpose of

locating schools of target fish for a fishing vessel that intends to

set fishing gear on them.

* * * * *

Stellwagen Bank/Jeffreys Ledge area means the area bounded by the

Maine shoreline at 43 deg.30' N, then due east to 43 deg.30'N/

70 deg.00' W, then south to 42 deg.00' N/70 deg.00'W, then due west to

the Massachusetts shoreline, then along the Cape Cod shoreline to

42 deg.04.8' N/70 deg.10' W, then to 42 deg.12' N/70 deg.15' W, to

42 deg.12' N/70 deg.30' W, to 42 deg.00' N/70 deg.30' W, then due west

to the Massachusetts shoreline at 42 deg.00'N.

Strikenet or to fish with strikenet gear means a gillnet, or a net

similar in construction to a gillnet, that is designed so that when it

is deployed, it encircles or encloses an area of water either with the

net, or by utilizing the shoreline to complete encirclement.

* * * * *

Tended gear or tend means active fishing gear that is physically

attached to a vessel or to fish so that active gear is attached to the

vessel.

U.S. waters means both state waters and waters of the U.S.

exclusive economic zone along the east coast of the United States from

the Canadian/U.S. border southward to a line extending eastward from

the southernmost tip of Florida on the Florida shore.

* * * * *

Weak buoy line means a buoy line that will part when subjected to

certain pull pressure and, after parting, will result in a knotless

end, not thicker than the diameter of the line.

Weak link means a breakable device that will part when subjected to

certain pull pressure.

3. In Sec. 229.3, paragraphs (g) through (j) are added to read as

follows:

Sec. 229.3 Prohibitions.

* * * * *

(g) It is prohibited to fish with lobster pot gear in the areas and

for the times specified in Sec. 229.32(b) (3), (4), (5), (6) and (7)

unless the lobster pot gear meets the marking requirements specified in

Sec. 229.32(b)(1) and complies with the closures, modifications, and

restrictions specified in Sec. 229.32(b) (2), (3), (4), (5), (6) and

(7).

(h) It is prohibited to fish with sink gillnet gear in the areas

and for the times specified in Sec. 229.32(c) (3), (4), (5), (6) and

(7) unless the sink gillnet gear meets the marking requirements

specified in Sec. 229.32(c)(1) and complies with the closures,

modifications, and restrictions specified in Sec. 229.32(c) (2), (3),

(4), (5), (6) and (7).

[[Page 16533]]

(i) It is prohibited to fish with coastal gillnet in the areas and

for the times specified in Sec. 229.32(d)(3) unless the coastal gillnet

gear meets the marking requirements specified in Sec. 229.32(d)(1) and

complies with the restrictions specified in Sec. 229.32(d) (2) and (3).

(j) It is prohibited to fish with shark driftnet gear in the areas

and for the times specified in Sec. 229.32(e) (2) and (3) unless the

coastal gillnet gear meets the marking requirements specified in

Sec. 229.32(e)(1) and complies with the restrictions and requirements

specified in Sec. 229.32(e) (2) and (3).

4. A new Sec. 229.32 is added to subpart C to read as follows:

Subpart C--Take Reduction Plan Regulations and Emergency

Regulations

Sec. 229.32 Atlantic large whale take reduction plan regulations.

(a) Gear marking provisions. (1) Gear marking required for

specified gear. (i) Specified gear. Specified fishing gear consists of:

lobster pot gear or sink gillnet gear in Northeast waters; lobster pot

gear or mid-Atlantic coastal gillnet gear in the mid-Atlantic coastal

waters area; and shark driftnet gear in Southeast waters.

(ii) Requirement. On or after January 1, 1998 and as otherwise

required in paragraphs (b)(1), (c)(1), (d)(1), and (e)(1) of this

section, any person who owns or fishes with specified fishing gear must

mark that gear in order to identify the gear type and the region where

it is used according to the gear marking code specified by paragraphs

(a)(2) and (3) of this section, unless otherwise required by the

Assistant Administrator under paragraph (f) of this section.

(2) Gear-type color code. Gear must be marked with the appropriate

color to designate gear-type as follows:

Lobster pot gear........................... Red.

Sink gillnet gear.......................... Green.

Other anchored gillnet gear................ Yellow.

Driftnet gear.............................. Blue.

(3) Region color code. Gear must be marked with the appropriate

color to designate the area where the gear is set as follows:

Cape Cod Bay critical habitat area..... Blue/orange.

Great South Channel critical habitat Red/blue.

area.

Stellwagen Bank/Jeffreys Ledge area.... Yellow/orange.

Other Northeast waters................. Green/orange.

Mid-Atlantic coastal waters............ Red/orange.

Southeastern U.S. waters............... Green/red.

(4) Markings. Each color of the color codes must be permanently

marked on or along the line or lines specified under paragraphs (b)(1),

(c)(1), (d)(1), and (e)(1) of this section. Each color of the color

codes must be marked so that the colors are clearly visible when the

gear is hauled or removed from the water. Each color of the region

color code must be between 2 and 3 inches (5.1-7.6 cm) wide. The gear-

type color code must be between 4 and 5 inches (10.2-12.7 cm) wide. The

color codes must be placed on the line either in the following order or

in reverse order: The first color of the region color code, the second

color of the region code, and the gear color code. All colors of these

color codes must be placed immediately next to each other. If the color

of the line next to a color code is the same or similar to a color

code, an area of one to 2 inches (2.5-5.1 cm) next to that color code

must be permanently marked with a white band. In marking or affixing

the color code or associated neutral band, the line may be dyed or

marked with thin colored whipping line, thin colored plastic or heat

shrink tubing, or other material, or thin line may be woven into or

through the line, but the marking material must not be connected by a

knot in the line or increase the diameter of the line by more than 5

percent of its original diameter. If the Assistant Administrator

revises the gear marking requirements under paragraph (f) of this

section, the gear must be marked in compliance with those requirements.

(5) Inspection of gear and marking. At least once every 30 days,

all specified gear that is in the water must be hauled and inspected to

ensure that the gear is properly marked and otherwise in compliance

with this section.

(b) Restrictions applicable to lobster pot gear. (1) Gear marking

requirements. No person may fish with lobster pot gear unless that gear

is marked by gear type and region according to the gear marking code

specified under paragraph (a) of this section. On and after January 1,

1998, all buoy lines must be marked within 2 feet (0.6 m) of the top of

the buoy line and approximately midway along the length of each buoy

line according to the gear type and region. On and after January 1,

1999, each section of groundline must be marked approximately midway

between each pot according to gear type and region.

(2) Gear modifications and restrictions (i) Type 1 lobster pot

gear. Type 1 lobster pot gear is gear which complies with the following

requirements:

(A) Multi-pot trawls. It is a multiple pot trawl consisting of four

or more lobster pots;

(B) Limit on buoy lines. No more than two buoy lines are used per

trawl;

(C) Sinking buoy lines. All buoy lines are sinking line;

(D) Breakaway buoys or weak buoy lines. All buoy lines and buoys

comply with one of the following:

(1) The buoy line is attached at the top of the line to a breakaway

buoy. Unless the Assistant Administrator revises the gear requirements

under paragraph (f) of this section, the breakaway buoy must be

designed with a breaking strength of no more than 150 pounds (68 kg);

or

(2) The buoy line has a weak buoy line that is at least as long as

the depth of the water at mean high water, is attached to the buoy at

the top of the line, and is attached to a functional buoy line resting

on the ocean bottom at the bottom of the weak buoy line. Unless the

Assistant Administrator revises the gear requirements under paragraph

(f) of this section, the weak buoy line must be designed with a

breaking strength of no more than 150 pounds (68 kg); and

(E) Sinking groundline. All groundlines are sinking line.

(ii) Type 2 lobster pot gear. Type 2 lobster pot gear is gear which

complies with the following requirements.

(A) Limit on buoy lines. No more than one buoy line is used per

trawl consisting of fewer than four pots, and no more than two buoy

lines are used on any trawl consisting of four or more pots; and

(B) Sinking buoy lines, breakway buoys or weak buoy lines, and

sinking groundline. The gear complies with the gear requirements of

paragraph (b)(2)(i) (C), (D) and (E) of this section.

(iii) Type 3 lobster pot gear. Type 3 lobster pot gear is gear

which complies with the following requirements:

(A) Sinking or modified sinking buoy lines. All buoy lines are

sinking line, except that floating line may be used if:

(1) The floating line is not attached to the buoy, is used only in

the bottom-

[[Page 16534]]

most section of the buoy line, and is not longer than 10 percent of

the depth of the water at mean low water;

(2) The floating line is not larger than \1/2\ inch (1.27 cm) in

diameter; and

(3) The floating line section of the buoy line is attached to the

sinking line by a splice and not by a knot; and

(B) Limit of buoy lines, breakaway buoys or weak buoy lines, and

sinking groundline. The gear complies with the gear requirements of

paragraph (b)(2)(i) (B), (D) and (E) of this section.

(iv) Type 4 lobster pot gear. Type 4 lobster pot gear is gear which

complies with the following requirements:

(A) Sinking or modified sinking buoy lines. It complies with the

requirements of paragraph (b)(2)(iii)(A) of this section.

(B) Limit on buoy lines and breakway buoys or weak buoy lines. It

complies with the gear requirements of paragraph (b)(2)(i) (B) and (D)

of this section.

(3) Cape Cod Bay. (i) Restricted area. The Cape Cod Bay restricted

area consists of the Cape Cod Bay Critical Habitat area specified under

50 CFR 216.13(b) (copies of a chart depicting this area are available

from the NE Regional Administrator upon request) unless the Assistant

Administrator extends that area under paragraph (f) of this section.

(ii) Type 1 gear restrictions. During the winter/spring restricted

period, no person may fish with lobster pot gear in the Cape Cod Bay

restricted area unless the lobster pot gear complies with the Type 1

gear requirements specified under paragraph (b)(2)(i) of this section;

or, if the Assistant Administrator revises the gear requirements under

paragraph (f) of this section, the gear complies with those

requirements. The winter/spring restricted period for this area is from

January 1 until May 15 of each year unless the Assistant Administrator

revises the restricted period under paragraph (f) of this section.

(iii) Type 4 gear restrictions. On or after January 1, 1998, during

the summer/fall restricted period, no person may fish with lobster pot

gear in the Cape Cod Bay restricted area unless the lobster pot gear

complies with the Type 4 gear requirements specified under paragraph

(b)(2)(iv) of this section; or, if the Assistant Administrator revises

the gear requirements under paragraph (f) of this section, the gear

complies with those requirements. The summer/fall restricted period for

this area is from May 16 through December 31, unless the Assistant

Administrator revises the restricted period under paragraph (f) of this

section.

(4) Great South Channel. (i) Restricted area. The Great South

Channel restricted area consists of the Great South Channel Critical

Habitat area specified under 50 CFR 216.13(a) (copies of a chart

depicting this area are available from the NE Regional Administrator

upon request) unless the Assistant Administrator extends that area

under paragraph (f) of this section.

(ii) Closure. During the spring closed period, no person may fish

with lobster gear in the Great South Channel restricted area unless the

Assistant Administrator specifies gear modifications or alternative

fishing practices under paragraph (f) of this section and the gear or

practices comply with those specifications. The spring closed period

for this area is from April 1 until June 30 of each year unless the

Assistant Administrator revises the closed period under paragraph (f)

of this section.

(iii) Type 3 gear restrictions. Beginning on January 1, 1998,

during the winter/summer/fall restricted period, no person may fish

with lobster pot gear in the Great South Channel restricted area unless

the lobster pot gear complies with the Type 3 gear requirements

specified under paragraph (b)(2)(iii) of this section; or, if the

Assistant Administrator revises the gear modification requirements

under paragraph (f) of this section, the gear complies with those

requirements. The winter/summer/fall restricted period for this area is

from January 1 through March 31 and from July 1 through December 31 of

each year, unless the Assistant Administrator revises the restricted

period under paragraph (f) of this section.

(5) Stellwagen Bank/Jeffreys Ledge. (i) Restricted area. The

Stellwagen Bank/Jeffreys Ledge restricted area (copies of a chart

depicting this area are available from the NE Regional Administrator

upon request) consists of the area bounded by the Maine shoreline at

43 deg.30' N, then due east to 43 deg.30'N/70 deg.00' W, then south to

42 deg.00' N/70 deg.00'W, then due west to the Massachusetts shoreline,

then along the Cape Cod shoreline to 42 deg.04.8' N/70 deg.10' W, then

to 42 deg.12' N/70 deg.15' W, to 42 deg.12' N/70 deg.30' W, to

42 deg.00' N/70 deg.30' W, then due west to the Massachusetts shoreline

at 42 deg.00'N unless the Assistant Administrator extends that area

under paragraph (f) of this section.

(ii) Type 3 gear restrictions. On or after January 1, 1998, no

person may fish with lobster pot gear in the Stellwagen Bank/Jeffreys

Ledge restricted area unless the lobster pot gear complies with the

Type 3 gear restriction requirements specified under paragraph

(b)(3)(iii) of this section; or, if the Assistant Administrator revises

the gear modification requirements under paragraph (f) of this section,

the gear complies with those requirements. This restriction applies

throughout the year unless the Assistant Administrator revises the

restricted period under paragraph (f) of this section.

(6) Other northern waters. (i) Description of the other northern

waters. Other northern waters consist of all U.S. waters north of

41 deg.00' N except the Cape Cod Bay restricted area, Great South

Channel restricted areas, and the Stellwagen Bank/Jeffreys Ledge

restricted area.

(ii) Type 4 gear restrictions. On or after January 1, 1998, no

person may fish with lobster pot gear in other northern waters unless

the lobster pot gear complies with the Type 4 gear restriction

requirements specified under paragraph (b)(2)(iv) of this section; or,

if the Assistant Administrator revises the gear modification

requirements under paragraph (f) of this section, the gear complies

with those requirements. This restriction applies throughout the year

unless the Assistant Administrator revises the restricted period under

paragraph (f) of this section.

(7) All other lobster waters. (i) Description of all other lobster

waters. All other lobster waters consist of all U.S. waters south of

41 deg.00' N.

(ii) Type 4 gear restrictions. On or after January 1, 1998, during

the winter restricted period, no person may fish with lobster pot gear

in all other lobster waters unless the lobster pot gear complies with

the Type 4 gear restriction requirements specified under paragraph

(b)(2)(iv) of this section; or, if the Assistant Administrator revises

the gear modification requirements under paragraph (f) of this section,

the gear complies with those requirements. The winter restricted period

for this area is from December 1 through March 31, unless the Assistant

Administrator modifies the restricted period under paragraph (f) of

this section.

(c) Restrictions applicable to Northeast sink gillnet gear. (1)

Sink gillnet gear marking requirements. No person may fish with sink

gillnet gear in Northeast waters unless that gear is marked by gear

type and region according to the gear marking code specified under

paragraph (a) of this section. On and after January 1, 1998, all buoy

lines must be marked within 2 feet (0.6 m) of the top of the buoy line

and approximately midway along the length of the buoy line according to

gear type and region. On and after January 1, 1999, all net panels in

each string of a sink gillnet must be marked along the headrope at both

ends of each panel according to gear type and region.

[[Page 16535]]

(2) Gear modifications and restrictions. (i) Type 1 sink gillnet

gear modifications. Type 1 sink gillnet gear is gear which complies

with the following requirements:

(A) Sinking line. All groundlines, bridle lines, anchor lines and

other lines, except the headrope and bottom-most section of the buoy

lines, are sinking line;

(B) Headrope specifications. The headrope:

(1) Is equipped with net floats and the diameter of the headrope

does not exceed 5/16 inch (0.79 cm); or

(2) Has a foam core and the diameter of the headrope does not

exceed \1/2\ inch (1.27 cm);

(C) Sinking or modified sinking buoy lines. All buoy lines are

sinking line, except that floating line may be used if:

(1) The floating line is not attached to the buoy, is used only in

the bottom-most section of the buoy line, and is not longer than 10

percent of the depth of the water at mean low water;

(2) The floating line is not larger than \1/2\ inch (1.27 cm) in

diameter; and

(3) The floating line section of the buoy line is attached to the

sinking line by a splice and not by a knot;

(D) Breakaway buoys or weak buoy lines. All buoy lines and buoys

comply with one of the following:

(1) The buoy line is attached at the top of the line to a breakaway

buoy. Unless the Assistant Administrator revises the gear requirements

under paragraph (f) of this section, the breakaway buoy must be

designed with a breaking strength of no more than 150 pounds (68 kg);

or

(2) The buoy line has a weak buoy line that is at least as long as

the depth of the water at mean high water, is attached to the buoy at

the top of the line, and is attached to a functional buoy line resting

on the ocean bottom at the bottom of the weak buoy line. Unless the

Assistant Administrator revises the gear requirements under paragraph

(f) of this section, the weak buoy line must be designed with a

breaking strength of no more than 150 pounds (68 kg);

(E) Weak links. The gillnet is equipped with weak links on the

headrope and on the footrope between each net panel. Unless the

Assistant Administrator revises the gear requirements under paragraph

(f) of this section, each weak link must be designed with a breaking

strength of no more than 150 pounds (68 kg); and

(F) Securely anchored. Each gillnet is securely anchored so that

the anchor will not dislodge when there is a pull on any weak link of

more than the applicable maximum breaking strength for the weak link.

(G) Groundline. At each end of a string of net panels, an anchor is

attached to the gillnet by a groundline and bridle with a combined

length which is equal to or greater than 90 feet (27.7 m).

(ii) Type 2 sink gillnet gear modifications. Type 2 sink gillnet

gear is gear which complies with the requirements of paragraph

(c)(2)(i)(C) and (D) of this section (requirements for sinking buoy

lines or modified sinking buoy lines, and breakaway buoys or weak buoy

lines).

(3) Cape Cod Bay. (i) Restricted area. The Cape Cod Bay restricted

area consists of the Cape Cod Bay Critical Habitat area specified under

50 CFR 216.13(b) (copies of a chart depicting this area are available

from the NE Regional Administrator upon request) unless the Assistant

Administrator extends that area under paragraph (f) of this section.

(ii) Closure. During the winter/spring closed period, no person may

fish with sink gillnet gear in the Cape Cod Bay restricted area unless

the Assistant Administrator specifies gear modifications or alternative

fishing practices under paragraph (f) of this section and the gear or

practices comply with those specifications. The winter/spring closed

period for this area is from January 1 until May 15 of each year unless

the Assistant Administrator revises the closed period under paragraph

(f) of this section.

(iii) Type 1 gear restrictions. During the summer/fall restricted

period, no person may fish with sink gillnet gear in the Cape Cod Bay

restricted area unless the gear complies with the Type 1 gear

requirements specified under paragraph (b)(2)(i) of this section; or,

if the Assistant Administrator revises the gear requirements under

paragraph (f) of this section, the gear complies with those

requirements. The summer/fall restricted period for this area is from

May 16 through December 31 of each year unless the Assistant

Administrator revises the restricted period under paragraph (f) of this

section.

(4) Great South Channel restricted area (excluding the sliver

area). (i) Restricted area. The Great South Channel restricted area,

excluding the sliver area, consists of the area bounded by lines

connecting the following four points: 41 deg.02.2' N/69 deg.02' W,

41 deg.43.5' N/69 deg.36.3' W, 42 deg.10' N/68 deg.31' W, and

41 deg.38' N/68 deg.13' W (copies of a chart depicting this area are

available from the NE Regional Administrator upon request), unless the

Assistant Administrator extends that area under paragraph (f) of this

section. This described area excludes the sliver area specified under

paragraph (c)(5)(i) of this section.

(ii) Closure. During the spring closed period, no person may fish

with sink gillnet gear in the Great South Channel restricted area,

excluding the sliver area, unless the Assistant Administrator specifies

gear modifications or alternative fishing practices under paragraph (f)

of this section. The spring closed period for this area is from April 1

until June 30 of each year unless the Administrator revises the closed

period under paragraph (f) of this section.

(iii) Type 1 gear restrictions. Beginning on January 1, 1998,

during the winter/summer/fall restricted period, no person may fish

with sink gillnet gear in the Great South Channel restricted area

unless the sink gillnet gear complies with the Type 1 gear requirements

specified under paragraph (c)(2)(i) of this section; or, if the

Assistant Administrator revises the gear modification requirements

under paragraph (f) of this section, the gear complies with those

requirements. The winter/summer/fall restricted period for this area is

from January 1 through March 31 and from July 1 through December 31 of

each year, unless the Assistant Administrator revises the restricted

period under paragraph (f) of this section.

(5) Great South Channel sliver restricted area. (i) Restricted

area. The Great South Channel sliver restricted area consists of the

area bounded by lines connecting the following points: 41 deg.02.2'N/

69 deg.02'W, 41 deg.43.5'N/69 deg.36.3'W, 41 deg.40'N/69 deg.45'W, and

41 deg.00'N/69 deg.05'W, (copies of a chart depicting this area are

available from the NE Regional Administrator upon request), unless the

Assistant Administrator extends that area under paragraph (f) of this

section.

(ii) Type 1 gear restrictions. On or after January 1, 1998, no

person may fish with sink gillnet gear in the Great South Channel

sliver restricted area unless the sink gillnet gear complies with the

Type 1 gear restrictions specified under paragraph (c)(2)(i) of this

section or, if the Assistant Administrator revises the gear

modification requirements under paragraph (f) of this section, the gear

complies with those requirements. This restriction applies throughout

the year unless the Assistant Administrator revises the restricted

period under paragraph (f) of this section.

(6) Stellwagen Bank/Jeffreys Ledge restricted area. (i) Description

of the restricted area. The Stellwagen Bank/Jeffreys Ledge restricted

area (copies of

[[Page 16536]]

a chart depicting this area are available from the NE Regional

Administrator upon request) consists of the area bounded by the Maine

shoreline at 43 deg.30' N due east 43 deg.3'N/70 deg.00' W, then south

to 42 deg.00' N/70 deg.00' W, then due west to the Massachusetts

shoreline at 42 deg.00'N, then along the Cape Cod shoreline to

42 deg.04.8' N/70 deg.10' W, then to 42 deg.12' N/70 deg.15' W, then to

42 deg.12' N/70 deg.30' W, then to 42 deg.00' N/70 deg.30' W, then west

to the Massachusetts shoreline (copies of a chart depicting this area

are available from the NE Regional Administrator upon request), unless

the Assistant Administrator extends that area under paragraph (f) of

this section.

(ii) Type 1 gear restrictions. On or after January 1, 1998, no

person may fish with sink gillnet gear in the Stellwagen Bank/Jeffreys

Ledge restricted area unless the sink gillnet gear complies with the

Type 1 gear restrictions specified under paragraph (c)(2)(i) of this

section; or, if the Assistant Administrator revises the gear

modification requirements under paragraph (f) of this section, the gear

complies with those requirements. This restriction applies throughout

the year unless the Assistant Administrator revises the restricted

period under paragraph (f) of this section.

(7) Other Northeast waters area. (i) Description of the other

Northeast waters area. The other Northeast waters area consists of all

Northeast waters except for the Cape Cod Bay restricted area, the Great

South Channel and Great South Channel sliver restricted areas, all

waters landward of the first bridge of any embayment in Rhode Island,

and southern Massachusetts (to Monomoy Island) and all waters west of a

line from the north fork of the eastern end of Long Island, NY (Orient

Point to Plum Island to Fisher Island) to Watch Hill Rhode Island.

(ii) Type 2 gear restrictions. From January 1 through December 31,

1998, no person may fish with sink gillnet gear in the other Northeast

waters area unless the sink gillnet gear complies with the Type 2 gear

modification requirements specified under paragraph (c)(2)(ii) of this

section; or, if the Assistant Administrator revises the gear

modification requirements under paragraph (f) of this section, the gear

complies with those requirements. This restriction applies throughout

the year unless the Assistant Administrator revises the restricted

period under paragraph (f) of this section.

(iii) Type 1 gear restrictions. On or after January 1, 1999, no

person may fish with sink gillnet gear in the other Northeast waters

area unless the sink gillnet gear complies with the Type 1 gear

modification requirements specified under paragraph (c)(2)(i) of this

section; or, if the Assistant Administrator revises the gear

modification requirements under paragraph (f) of this section, the gear

complies with those requirements. This restriction applies throughout

the year unless the Assistant Administrator revises the restricted

period under paragraph (f) of this section.

(d) Restrictions applicable to mid-Atlantic coastal gillnet gear.

(1) Gear marking requirements. No person may fish with mid-Atlantic

coastal gillnet gear unless that gear is marked by gear type and region

according to the gear marking code specified under paragraph (a) of

this section. On and after January 1, 1998, all buoy lines must be

marked within 2 feet (0.6 m) of the top of the buoy line and midway

along the length of the buoy line according to gear type and region. On

and after January 1, 1999, all net panels in each string of a gillnet

must be marked along the headrope at both ends of each panel according

to gear type and region.

(2) Mid-Atlantic coastal gillnet gear modifications and

restrictions. (i) Type 1 mid-Atlantic coastal gillnet gear. Type 1 mid-

Atlantic coastal gillnet gear is sink gillnet gear which complies with

the following requirements:

(A) Sinking line. All groundlines, bridle lines, anchor lines and

other lines, except the headrope and bottom-most section of the buoy

lines, are sinking line;

(B) Headrope specifications. The headrope:

(1) Is equipped with net floats and the diameter of the headrope

does not exceed \5/16\ inch (0.79 cm); or

(2) Has a foam core and the diameter of the headrope does not

exceed \1/2\ inch (1.27 cm);

(C) Sinking or modified sinking buoy lines. All buoy lines are

sinking line, except that floating line may be used if:

(1) The floating line is not attached to the buoy, is used only in

the bottom-most section of the buoy line, and is not longer than 10

percent of the depth of the water at mean low water;

(2) The floating line is not larger than \1/2\ inch (1.27 cm) in

diameter; and

(3) The floating line section of the buoy line is attached to the

sinking line by a splice and not by a knot;

(D) Breakaway buoys or weak buoy lines. All buoy lines and buoys

comply with one of the following:

(1) The buoy line is attached at the top of the line to a breakaway

buoy. Unless the Assistant Administrator revises the gear requirements

under paragraph (f) of this section, the breakaway buoy must be

designed with a breaking strength of no more than 150 pounds (68 kg);

or

(2) The buoy line has a weak buoy line that is at least as long as

the depth of the water at mean high water, is attached to the buoy at

the top of the line, and is attached to a functional buoy line resting

on the ocean bottom at the bottom of the weak buoy line. Unless the

Assistant Administrator revises the gear requirements under paragraph

(f) of this section, the weak buoy line must be designed with a

breaking strength of no more than 150 pounds (68 kg);

(E) Weak links. The gillnet is equipped with weak links on the

headrope and on the footrope between each net panel. Unless the

Assistant Administrator revises the gear requirements under paragraph

(f) of this section, each weak link must be designed with a breaking

strength of no more than 150 pounds (68 kg);

(F) Securely anchored. Each gillnet is securely anchored so that

the anchor will not dislodge when there is a pull on any weak link of

more than the applicable maximum breaking strength for the weak; and

(G) Groundline. At each end of a string of net panels, an anchor is

attached to the gillnet by a groundline and bridle with a combined

length which is equal to or greater than 90 feet (27.7 m).

(ii) Type 2 mid-Atlantic coastal gillnet gear. Type 2 mid-Atlantic

coastal gillnet gear is anchored gillnet gear, other than sink gillnet

gear, which complies with the requirements of paragraph (d)(2)(i) (C)

and (D) of this section (sinking buoy lines or modified sinking buoy

lines, and breakaway buoys or weak buoy lines).

(3) Mid-Atlantic coastal waters area. (i) Description. The mid-

Atlantic coastal waters area consists of all mid-Atlantic waters except

that the following waters are excluded:

(A) Waters landward of the first bridge of any embayment in Raritan

and lower New York Bays in the New York Bight;

(B) Waters north of a line drawn from the southern point of

Nantuxent Cove (mouth of Cedar Creek, New Jersey) to the southern

boundary of Bombay Hook National Wildlife Refuge at Kelly Island,

Delaware (Port Mahon);

(C) Waters in the Chesapeake Bay north of the Chesapeake Bay

Bridge/Tunnel; and

(D) All waters between the Outer Banks and the mainland from

Morehead City, North Carolina, to the Virginia/North Carolina border.

[[Page 16537]]

(ii) Type 1 (sink gillnet) mid-Atlantic coastal gillnet gear

restrictions. On or after January 1, 1998, during the winter/spring

restricted period, no person may fish with sink gillnet gear in the

Mid-Atlantic coastal waters area unless the gillnet gear complies with

the Type 1 gillnet gear restrictions specified under paragraph

(d)(2)(i) of this section. The winter/spring restricted period for this

area is from December 1 through March 31 unless the Assistant

Administrator revises that restricted period under paragraph (f) of

this section.

(iii) Type 2 (other anchored gillnet) mid-Atlantic coastal gillnet

gear restrictions. On or after January 1, 1998, during the winter/

spring restricted period, no person may fish with other anchored

gillnet gear in the Mid-Atlantic coastal waters area unless the gillnet

gear complies with the Type 2 gillnet gear restrictions specified under

paragraph (d)(2)(ii) of this section. The winter/spring restricted

period for this area is from December 1 through March 31 unless the

Assistant Administrator revises that restricted period under paragraph

(f) of this section.

(iv) Driftnet gear--fishing practices requirements. No person may

fish at night with driftnet gear in the mid-Atlantic coastal waters

area unless that gear is tended. Before a vessel returns to port, all

driftnet gear set by that vessel in the mid-Atlantic coastal waters

area must be removed from the water and stowed on board the vessel.

(e) Restrictions on shark driftnet gear. (1) Gear marking

requirements. No person may fish with drift gillnet gear in Southeast

waters unless that gear is marked by gear type and region according to

the gear marking code specified under paragraph (a) of this section. On

and after November 1, 1998, all buoy lines must be marked within 2 feet

(0.6 m) of the top of the buoy line and midway along the length of the

buoy line according to gear type and region. On and after November 1,

1999, each net panel must be marked along both the float line and the

lead line and at least once every 100 feet (30.8 m) along the floatline

and bottom line.

(2) Management areas. (i) SEUS restricted area. The Southeast U.S.

restricted area consists of the SEUS critical habitat area described in

50 CFR 226.13(c) plus an additional area along the coast north to

32 deg.00' N (near Savannah, Georgia) from the shore and extending

eastward out 15 nautical miles from the shore, and an additional small

area along the coast south to 27 deg.51' N (near Sebastian Inlet,

Florida) and extending from the shore eastward out 5 nautical miles

from the shore (copies of a chart depicting this area are available

from the SE Regional Administrator upon request), unless the Assistant

Administrator extends that area under paragraph (f) of this section.

(ii) SEUS observer area. The SEUS observer area consists of the

area south of the SEUS restricted area and an additional area along the

coast south to 26 deg.46.05' N (near West Palm Beach, Florida) and

extending from the shore eastward out 5 nautical miles (copies of a

chart depicting this area are available from the SE Regional

Administrator upon request), unless the Assistant Administrator extends

that area under paragraph (f) of this section.

(3) Restrictions. (i) Closure. Except as provided under paragraph

(e)(3)(iii) of this section, no person may fish with driftnet gear in

the SEUS restricted area during the closed period. The closed period

for this area is from November 1 through March 31 of the following

year, unless the Assistant Administrator extends that closed period

under paragraph (f) of this section.

(ii) Observer requirement. No person may fish with driftnet gear in

the SEUS observer area unless the captain of the vessel calls the SE

Regional Office in St. Petersburg, Florida not less than 48 hours prior

to departing on any fishing trip in order to arrange for observer

coverage. If the Regional Office requests that an observer be taken on

a fishing trip, no person may fish with driftnet gear in the SEUS

observer area unless the observer is on board the vessel during the

trip.

(iii) Special provision for strikenets. Fishing with strikenet gear

is exempt from the restriction under paragraph (e)(3)(iii) of this

section if:

(A) No nets are set at night or when visibility is less than 500

yards (460 m);

(B) Each set is made under the observation of a spotter plane;

(C) No net is set within 3 nautical miles of a right, humpback or

fin whale; and

(D) If a right, humpback of fin whale moves within 3 nautical miles

of the set gear, the gear is removed immediately from the water.

(f) Contingency measures and other provisions. In addition to any

other emergency authority under the MMPA, the Endangered Species Act,

the Magnuson-Stevens Fishery Conservation and Management Act, or other

appropriate authority, the Assistant Administrator may take action

under this section in the following situations:

(1) Unusual right whale patterns. The Assistant Administrator may

impose additional temporary restrictions on specified gear under

paragraph (a)(1)(i) of this section for the purpose of reducing the

risk of interactions with right whales through a publication in the

Federal Register if right whales are determined to be resident in the

area. This determination will be based on sightings of four or more

right whales in the area for 2 or more consecutive weeks or on

alternative criteria specified by the Assistant Administrator under

this paragraph (f). These additional restrictions may extend any

restricted area specified under this section or restrict any other area

along the Atlantic coast of the U.S., may revise any closed or

restricted period specified under this section to regulate gear

specified under paragraph (a)(1)(i) of this section, or take other

similar action. The Assistant Administrator may remove these additional

temporary restrictions through a publication in the Federal Register if

right whales are determined to have left the area. This determination

will be based on sighting efforts that produce no confirmed sightings

for 1 week or more or other evidence that the right whales have left

the area.

(2) Gear failure. If a serious injury or mortality of a northern

right whale occurs in an interaction with gear specified under

paragraph (a)(1)(i) of this section in a restricted area and during a

restricted period specified under this section, NMFS will assess the

interaction. If NMFS determines that the interaction is attributable to

restricted gear used in a critical habitat area, the Assistant

Administrator shall close the area during the restricted period. If

NMFS determines that the interaction is attributable to restricted gear

used in any other restricted area, the Assistant Administrator shall

close the restricted area during the restricted period or impose

additional gear modifications or alternative fishing practices that

will significantly reduce the risk of serious injury or mortality to

right whales. The closure or additional restrictions will be imposed

through a publication in the Federal Register.

(3) Gear concerns. If an entanglement of a right whale or the

serious injury or mortality of any endangered whale occurs as a result

of an interaction with gear specified under paragraph (a)(1)(i) of this

section at any time or in any area, NMFS will assess the interaction.

If NMFS determines that the interaction is attributable to restricted

gear, the Assistant Administrator may impose additional gear

modifications or alternative fishing practices through a publication in

the Federal Register, or may close a restricted area or areas until

additional gear modifications or alternative fishing practices are

imposed through a publication in the Federal Register.

[[Page 16538]]

(4) Other special measures. If NMFS verifies that certain gear

restrictions are effective in reducing serious injuries and mortalities

of endangered whales; if new gear technology is developed and

determined to be appropriate; if revised breaking strengths are

determined to be appropriate; if new marking systems are developed and

determined to be appropriate; if alternative criteria for identifying

whether right whales are resident in an area is determined to be

appropriate; if gear testing operations are considered appropriate; or

for similar purposes, the Assistant Administrator may revise the

requirements of this section through a publication in the Federal

Register.

[FR Doc. 97-8738 Filed 4-4-97; 8:45 am]

BILLING CODE 3510-22-P