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. 970129015-9044-09; I.D. 031997C]

RIN 0648-AI84

Taking of Marine Mammals Incidental to Commercial Fishing

Operations; Atlantic Large Whale Take Reduction Plan Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS by this action issues a final rule implementing a plan to

reduce serious injury and mortality to four large whale stocks that

occur incidental to certain fisheries. The target whale stocks are the

North Atlantic right whale (Eubalaena glacialis) western North Atlantic

stock; humpback whale (Megaptera novaeangliae) western North Atlantic

stock; fin whale (Balaenoptera physalus) western North Atlantic stock;

and minke whale (Balaenoptera acutorostrata), Canadian East Coast

stock. Covered by the plan are fisheries for multiple groundfish

species, including monkfish and dogfish, in the New England

Multispecies sink gillnet fishery; multiple species in the U.S. mid-

Atlantic coastal gillnet fisheries; lobster in the Gulf of Maine and

U.S. mid-Atlantic trap/pot fisheries; and sharks in the Southeastern

U.S. Atlantic gillnet fishery. This final rule includes time and area

closures for the lobster, anchored gillnet and shark gillnet fisheries;

gear requirements, including a general prohibition on having line

floating at the surface in these fisheries; a prohibition on storing

inactive gear at sea; and restrictions on setting shark gillnets off

the coasts of Georgia and Florida and drift gillnets in the mid-

Atlantic. The plan also contains non-regulatory aspects, including gear

research, public outreach, scientific research, a network to inform

mariners when right whales are in an area, and increasing efforts to

disentangle whales caught in fishing gear.

DATES: The regulations in this final rule are effective April 1, 1999.

ADDRESSES: Copies of progress reports on implementation of the Atlantic

Large Whale Take Reduction Plan (ALWTRP) and of the Final Regulatory

Flexibility Analysis for this rule may be obtained by writing Doug

Beach, NMFS, 1 Blackburn Dr., Gloucester, MA 01930. Copies of the most

recent Stock Assessment Reports for northern right whales, humpback

whales, fin whales and minke whales may be obtained by writing to

Gordon Waring, NMFS, 166 Water St., Woods Hole, MA 02543.

FOR FURTHER INFORMATION CONTACT: Kevin Chu, NMFS, Northeast Region,

508-495-2367; Katherine Wang, NMFS, Southeast Region, 727-570-5312; or

Greg Silber, NMFS, Office of Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

The Marine Mammal Protection Act (MMPA) requires commercial

fisheries to reduce the incidental mortality and serious injury of

marine mammals to insignificant levels approaching a zero mortality and

serious injury rate by April 30, 2001 (section 118(b)(1)).

For some marine mammal stocks and some fisheries, section 118(f)

requires NMFS to develop and implement take reduction plans to assist

in recovery or to prevent depletion. The immediate goal of a take

reduction plan is to reduce, within 6 months of its implementation, the

mortality and serious injury of stocks incidentally taken in the course

of U.S. commercial fishing operations to below the Potential Biological

Removal (PBR) levels established for such stocks. The PBR level is

defined in the MMPA as the maximum number of animals, not including

natural mortalities, that may be removed from a marine mammal stock

while allowing that stock to reach or maintain its optimum sustainable

population. The long-term goal of a take reduction plan is to reduce,

within 5 years of its implementation, the incidental mortality and

serious injury of strategic marine mammals taken in the course of

commercial fishing operations to insignificant levels approaching a

zero mortality and serious injury rate, taking into account the

economics of the fishery, the availability of existing technology, and

existing state or regional fishery management plans.

On July 22, 1997, NMFS published in the Federal Register an ALWTRP,

or a ``Plan'', and interim final regulations implementing that Plan (62

FR 39157). In this notice, NMFS reports on actions taken pursuant to

the Plan, and issues a final rule for it. The final rule makes minor

changes to the regulations in the interim final rule, but the general

outline of the Plan remains the same.

The Plan, in conjunction with other management actions, is intended

to meet the goals stated here for right whales, humpback, and fin

whales, all of which are listed as endangered species under the

Endangered Species Act (ESA), and for minke whales. The Plan may be

amended in the future to take account of new information or

circumstances.

The fisheries most affected by this plan are: anchored gillnet

fisheries, including the New England sink gillnet fishery; the Gulf of

Maine/U.S. Mid-Atlantic lobster trap/pot fishery; the U.S. mid-Atlantic

coastal gillnet fisheries; and the Southeastern U.S. Atlantic shark

gillnet fishery. The New England Multispecies sink gillnet fishery has

an historical incidental bycatch of humpback, minke, and possibly fin

whales. This gear type has been documented to entangle right whales in

Canadian waters. Additionally, entanglements of right whales in

unspecified gillnets have been recorded for U.S. waters, although U.S.

sink gillnets have not been conclusively identified as having entangled

right whales. The Gulf of Maine/U.S. mid-Atlantic lobster trap/pot

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

whales. The mid-Atlantic coastal gillnet fisheries have an historical

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

gillnet fishery (for which sharks are generally the target species) is

believed to be responsible for bycatch of at least one right whale.

Some waters are exempt from this plan. The basic rule for the

exempted water boundaries is that all waters landward of the first

bridge over any embayment, harbor, or inlet will be exempted. Some bays

that do not have bridges over them are also exempted, including Long

Island Sound and Delaware Bay. South of the Virginia/

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North Carolina border, all waters landward of the demarcation line of

the International Regulations for Preventing Collisions at Sea, 1972

(72 COLREGS line) are exempted. These are all areas where large whale

occurrences are so rare that NMFS believes gear requirements will have

no measurable effect on reducing entanglements. In a change from the

interim final rule, the only exempted waters in the Gulf of Maine are

those waters landward of the first bridge over any embayment. For a

discussion of the rationale for this change, see ``Changes From the

Interim Final Rule''. For a precise definition of the exempted areas,

see the regulation section of this final rule.

Current Entanglement Rates and Population Status

The information in this section is from the 1996 Stock Assessment

Reports (Waring et al., 1997) compiled by NMFS, as required by the

MMPA, from information collected for the 1998 Stock Assessment Reports,

and from 1997 and 1998 entanglement reports compiled by NMFS.

Additional information about the population biology and human-caused

sources of mortalities and serious injuries is included in the 1996

Stock Assessment Reports, which are available from NMFS (see

ADDRESSES). The 1998 Stock Assessment Reports are currently under

review.

Some entanglements of large whales were observed by the NMFS sea

sampling program; however, most records come from various sources such

as small vessel operators. Limitations on the use of the available

entanglement data include (1) not all observed events are reported; (2)

most reports are opportunistic rather than arriving from systematic

data collection, and, thus, conclusions cannot be made regarding actual

entanglement levels; (3) identification of the gear type or of the

fishery involved is often problematic; and (4) identification of the

location where the entanglement first occurred is often difficult since

the first observation usually occurs after the animal has left the

original location.

North Atlantic Right Whales

The northern right whale is the rarest of all large cetaceans and

one of the most endangered species in the world. The western North

Atlantic population is estimated at 295 animals (Knowlton et al., 1994)

and is unlikely to be significantly higher. The best published estimate

of the population growth rate is 2.5 percent per year (Knowlton et al.,

1994). However, many uncertainties exist in this estimate, and further

assessment is required, notably in light of the known high levels of

anthropogenic mortality in this species. The PBR level for this

population is 0.4 incidents of serious injury or mortality per year.

Approximately one-third of all known right whale mortality is

caused by human activities (Kraus, 1990). Further, the small population

size and low annual reproductive rate suggest that human sources of

mortality may have a greater effect on population growth rates of the

right whale than on those of other whales. The principal factors

retarding growth of the population are believed to be ship strikes and

entanglement in fishing gear.

For the period 1991 through 1996, the total human-caused mortality

and serious injury to right whales is estimated as 2.3 incidents per

year. Of this figure, 1.0 incident per year is attributed to

entanglements and 1.3 to ship strikes. Note that some injuries or

mortalities may go undetected, particularly those that occur offshore.

Therefore, the estimates above should be considered minimum estimates.

In June 1997 (prior to the publication of the interim final rule),

there was an entanglement in U.S. offshore lobster gear off Chatham,

MA. This whale was disentangled without evidence of compromising injury

and is not likely to be classified as a ``serious injury'' when

analysis of the event is complete. There was another entanglement also

reported in U.S. waters in 1997, in which a right whale was seen

carrying a line from unknown gear. This whale was later seen by

researchers from the New England Aquarium, who believe the line may

have been shed during the summer.

Four entangled right whales were sighted in the Bay of Fundy in

1997, after the interim final rule was published. At least two of these

entanglements are likely to be classified as serious injuries or

mortalities when the reports are reviewed. None of these entanglements

can be positively attributed to U.S. fisheries. No entangled right

whales were seen in U.S. waters during the first 6 months of the

implementation of the Plan (from July 22, 1997, to January 22, 1998).

In 1998, there were extensive aerial surveys of right whale critical

habitats in the United States; no entangled right whales were seen

during these surveys.

In 1998, four right whales were reported entangled. On July 12, two

right whales were trapped in a weir near Grand Manan Island, Canada.

Both whales were released 2 days later with apparently minor scratches.

One right whale was seen entangled in rope of unidentified origin

on August 15 near Mingan Island in the Gulf of St. Lawrence. The whale

was too active to approach safely to disentangle it. It appeared to

free itself of most of the gear but may still be trailing some line.

One right whale was entangled twice (and actually disentangled

three times) in Cape Cod Bay. The whale had been first seen entangled

in 1997 in the Bay of Fundy. On July 24, 1998, the whale was seen near

Dennis, MA (Cape Cod Bay). Most, but not all, of the gear it had been

carrying from the 1997 entanglement was removed by the disentanglement

team on that date. (NMFS has not been able to identify the type of gear

responsible for this 1997 entanglement. However, the gear is still

being studied.) The same whale was seen again near Provincetown, MA, on

September 12 with a lobster buoy line through its mouth. This line was

cut but not completely removed at that time. The right whale was seen

again 2 days later (September 14) near Barnstable, MA. In the interim,

it had picked up additional lobster gear, which was entirely removed.

At last report, the whale was swimming freely but still had a thin line

in its mouth from the entanglement in 1997.

A final evaluation as to whether these entanglements will be

considered serious injuries has not yet been made. The agency is in the

process of developing guidelines to standardize this kind of

evaluation.

Humpback Whales

The best estimate of abundance for North Atlantic humpback whales

is 10,600 (Coefficient of Variation (CV) = 0.067, Smith et al., 1998).

The minimum population estimate for this stock is 10,019 (CV = 0.067)

(Waring et al., in prep). Within this population, the humpback whales

in the Gulf of Maine constitute a distinct, relatively small, feeding

sub-population. However, it is not genetically distinct from other sub-

populations in the western North Atlantic, which are all treated as a

single stock for the purposes of the Plan and the estimation of PBR.

For purposes of the current stock assessment, the maximum net

productivity rate for western North Atlantic humpback whales is assumed

to be 0.065 (Barlow and Clapham, 1997). The PBR level for this stock is

32.6 humpback whales per year.

For the period 1991 through 1996, the total estimated human-caused

mortality and serious injury to humpback whales in U.S. waters is

estimated as 5.8 per year. This is derived from three components: (1)

Entanglements that have been reported by NMFS observers, (2) additional

fishery interaction records, and (3) vessel collision records.

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Fin Whales

The best available estimate of abundance for the western North

Atlantic fin whale is 2,700 (CV = 0.59), which is considered

conservative (Waring et al., in prep). The minimum population estimate

is 1,704 (CV = 0.59) (ibid.). For purposes of the current stock

assessment, the maximum net productivity rate for fin whales is assumed

to be 0.04. The PBR for this stock is 3.4.

Entanglements of fin whales are rarely documented. Because of the

paucity of stranded animals or other records, NMFS has not calculated

an average entanglement rate, although it believes that serious

injuries or mortalities due to entanglements of fin whales occur at a

rate below 10 percent of PBR. A review of 26 records of stranded or

floating (dead or injured) fin whales for the period of 1992 through

1996 showed that three had formerly been entangled in fishing gear. Two

of these had net or rope marks on the body, and one had line through

the mouth and around the tail.

Minke Whales

Minke whales off the eastern coast of the United States are

considered to be part of the Canadian east coast population, which

inhabits the area from the eastern half of Davis Strait south to the

Gulf of Mexico. The best estimate of the population is 2,760 (CV =

0.32) (Waring et al., in prep.), which is considered conservative. The

minimum population estimate for Canadian east coast minke whales is

2,145 (CV = 0.32) (ibid.). The current and maximum net productivity

rates are not known, but the maximum rate is assumed to be 0.04. The

PBR for this stock of minke whales is 17.

Accurate estimates of human-caused mortality are not available for

this species because it is likely that many entanglements, injuries,

and mortalities go unobserved and/or unrecorded. The total annual

estimated average fishery-related mortality and serious injury to this

stock in fisheries that have been observed by NMFS is 0.8 minke whales.

However, the total number of entanglements from all fisheries is

unknown. The figure is believed to be less than PBR but greater than 10

percent of PBR. Entanglements are known to occur in Canadian waters as

well.

Atlantic Large Whale Take Reduction Plan

As stated earlier and as required by the MMPA, the Plan has two

goals. The short-term goal is to reduce serious injuries and

mortalities of right whales in U.S. commercial fisheries to below 0.4

animals per year by January 1998. The long-term goal is to reduce by

April 30, 2001, entanglement-related serious injuries and mortalities

of right whales, humpback whales, fin whales, and minke whales to

insignificant levels approaching a zero mortality and serious injury

rate, taking into account the economics of the fisheries, the

availability of existing technology, and existing state and regional

fishery management plans.

To reach the short-term goal, the Plan was expected to achieve the

necessary take reductions within 6 months through (1) establishing

closures of critical habitats to some gear types during times when

right whales are usually present; (2) restricting the way strike nets

are set in the southeastern U.S. gillnet fishery to minimize the risk

of entanglement and requiring observers on shark gillnet vessels

operating adjacent to the southeast U.S. critical habitat; (3)

requiring that all lobster and sink gillnet gear be set in such a way

as to prevent line from floating at the surface; (4) requiring all

lobster and anchored gillnet gear to have at least some additional

characteristics that may reduce the risks of entanglements, (5)

requiring that drift gillnets in the mid-Atlantic be either tended or

stored on board at night; (6) improving the voluntary network of

persons trained to assist in disentangling right whales; and (7)

prohibiting storage of inactive gear in the ocean.

Although NMFS is not aware of any right whales entangled in U.S.

fishing gear during the first 6 months of the implementation of the

Plan, it is unable to determine whether the short-term goal of the Plan

was met. Because right whale entanglements are rare and because there

is no way of knowing that all entanglements were detected, it is

impossible to demonstrate conclusively that the goals of the MMPA were

achieved. At the same time, NMFS cannot conclude that PBR was exceeded.

The 1997 entanglements that might be classified as serious injuries or

mortalities were first observed in Canadian waters. The two known

entanglements that occurred in U.S. waters during the first 6 months of

the Plan did not appear to be serious. It is clear, however, that

entanglement in fishing gear remains a danger to individual right

whales and that continued reductions in the risk of such entanglements

would be prudent, given the endangered status of the population.

The steps in the implementation of the Plan designed to achieve the

long-term goal include (1) improving public involvement in take

reduction efforts, including conducting outreach and educational

workshops for fishermen; (2) instituting ``Take Reduction Technology

Lists'' from which fishermen must choose gear characteristics that are

intended to decrease the risks of entanglement; (3) facilitating

research and development of fishing gear that will reduce the risk of

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

including encouraging more cooperation from fishermen; (5) implementing

a gear marking program, (6) developing contingency plans in cooperation

with states for when right whales are present at unexpected times and

places; (7) working with Canada to decrease entanglements in its

waters; (8) improving monitoring of the right whale population

distribution and biology; (9) conducting aerial surveys to monitor

whale distribution, fishing effort and shipping traffic, (10)

maintaining a network to alert maritime users about right whale

distribution; and (11) establishing the framework of an abbreviated

rule-making process to allow NMFS to change the requirements of the

plan through notification in the Federal Register, thereby improving

the responsiveness of NMFS.

NMFS intends to make active use of the Atlantic Large Whale Take

Reduction Team (TRT), an advisory group that includes fishermen,

scientists, and representatives of environmental groups and state

governments, to review progress on reaching the goals of the ALWTRP and

to make recommendations on how to continue to decrease serious injuries

and mortalities due to entanglements. NMFS also intends to continue to

seek technical advice on matters pertaining to gear development for its

Gear Advisory Group (GAG), which is composed of persons with direct

knowledge of fishing gear or disentangling large whales. NMFS convened

the GAG on October 7-8, 1998, and will convene the TRT on February 8-

10, 1999. NMFS may modify the plan if it receives a recommendation from

the teams to do so.

Report of First Year Activities

During the first year of the Plan, NMFS raised the level of funding

for research and development of fishing gear that reduces the risks of

entanglement, expanded its disentanglement efforts, increased efforts

to raise awareness of marine mammal entanglement problems, conducted or

contributed funds to conduct aerial surveys to monitor the distribution

of right whales, to collect

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photographs for individual identification, and to alert ship operators

of the locations of right whales, and increased funding for basic

research on right whale population and conservation biology.

The goal of the gear research is to develop new fishing gear or

methods that minimize the risk of entanglements by large whales, either

by reducing the chances that a whale will encounter the gear or by

reducing the likelihood that gear, when encountered, will entangle the

animal. Since the publication of the Plan in 1997, research has been

conducted in the following areas: (1) Design, development, testing, and

manufacture of inexpensive weak links, (2) remotely operated vehicle

observations of the configuration of gillnets and lobster gear, (3)

estimation of the tractive (pulling) force of right whales, (4) land

testing of gillnet modifications, (5) baleen tests with various lines,

knots, and splices (to understand how a line gets caught in baleen),

and (6) design and fabrication of underwater and dry load cell systems

for measuring the hauling and towing loads of fishing gear and the

tractive force of animals.

The current disentanglement effort consists of a primary team which

has field station support in the northern Gulf of Maine/Bay of Fundy,

central Gulf of Maine, southern Gulf of Maine, and Georgia/Florida. The

northern Gulf of Maine/Bay of Fundy field station is operational only

when biologists are conducting seasonal right whale research. The U.S.

Coast Guard (USCG) provides critical support in monitoring initial

entanglement reports and transporting persons experienced in

disentangling whales. Although the Disentanglement Team currently

attempts to respond to all legitimate entanglement reports, the

priority for response is for any immediately life-threatening event of

endangered right and humpback whales. NMFS has also created a permanent

contact point in Maine to supplement the existing infrastructure

operating out of the Center for Coastal Studies in Provincetown,

Massachusetts. Plans are also underway to establish a disentanglement

team in the mid-Atlantic region.

The success of the Plan depends on the cooperation of fishermen in

assisting disentanglement efforts as well as in providing ideas for

gear research. During the first year of the Plan, NMFS hired a person

in Maine to work directly with the fishermen on these matters. NMFS has

held 21 meetings in Maine to date, with over 300 fishermen in

attendance, of which about 200 have indicated they wish to participate

in additional training to further assist in any disentanglement effort

in their area. From this series of meetings, a network of qualified

responders will be established to coordinate reports, carry out

monitoring, and assist the existing Team in response to entangled

whales along the coast of Maine. NMFS also met with fishermen directly

at fishermen's forums and contracted Sea Grant to discuss proper

reporting and operational procedures regarding entangled whales and to

gather ideas for appropriate gear modifications. Continued outreach

activities in Maine, southern New England, the southeast U.S. and in

the Mid-Atlantic are planned.

Existing partnerships with the USCG and the Massachusetts Division

of Marine Fisheries and Massachusetts Environmental Trust have resulted

in significant additional resources for carrying out the tasks outlined

in the Plan. Similar partnerships with the 5th, 7th, and 8th U.S. Coast

Guard (USCG) districts are currently being finalized. The USCG

conducted aerial surveys for large whales, assisted in disentanglement

response support, and provided funds for additional aerial survey

contracts carried out by NMFS. The State of Massachusetts funded aerial

survey coverage of Cape Cod Bay, as well as a habitat characterization

study of the Bay in 1998. Right whale sightings information from all

sources were provided to the northeast right whale alert system,

designed to inform mariners of the presence of right whales in critical

habitats. The sighting data were coordinated, verified, and processed

by NMFS. Verified sightings for each survey day are disseminated by an

automated fax system immediately after processing, and made available

to all marine resource users through various media. The coordinates of

the right whale sightings were broadcast for 24 hours by USCG via

Broadcast Notice to Mariners and NAVTEX, NOAA Weather Radio, and Army

Corps of Engineers Traffic Controllers at Cape Cod Canal to both target

shipping traffic as well as other marine resource users. Maps with

right whale sightings boxes are also posted on Massachusetts and NMFS

web pages and linked to other sites such as WHALENET. An NMFS Inquiry

Line at the Northeast Regional Office provides right whale sighting

faxes on demand to all interested callers.

During the first year of the Plan, NMFS drafted a memorandum of

Agreement (MOA) with USCG districts 5, 7, and 8 to formalize

cooperation in protecting marine mammals and endangered species,

especially in implementing a disentanglement network. (This MOA is

currently undergoing final review within the Department of Commerce.)

An MOA was also signed with the Navy, USCG, and the Army Corps of

Engineers to formalize cooperation in measures to protect northern

right whales in the southeast United States. This has provided a

mechanism for funding the southeast U.S. aerial surveys of right whale

critical habitat and the associated right whale alert system. NMFS has

continued to provide administrative support for the right whale alert

system. It has also conducted aerial surveys to the east, north, and

south of critical habitat in order to determine whether there may be a

need to extend current critical habitat boundaries.

Aerial surveys are also being conducted in the U.S. coastal waters

of the mid-Atlantic states to document abundance and distribution of

humpback whales in relation to vessel traffic and fishing effort.

Outreach activities are an integral part of all components of the

ALWTRP. NMFS contracted the Sea Grant offices at the University of

Maine and University of Rhode Island to set up an outreach program in

the New England and Mid-Atlantic areas. Sea Grant organized meetings,

workshops, and seminars at key fishermen's forums held from Fall 1997

through Spring 1998, covering the area from North Carolina to Rhode

Island. Sea Grant also prepared outreach handout materials and videos

for use at these and other forums and for the local meetings set up in

the Northeast. A letter was sent to all state and Federal lobster and

gillnet fishermen in the Northeast providing information about right

whales, the entanglement problem, and fishermen's responsibilities

under the ALWTRP. As mentioned above, NMFS also hired a Maine Plan

Coordinator to work closely with the Maine Lobster Zone Council system

to carry out outreach education and gear research collaboration.

In 1998, NMFS also met with shark gillnetters to develop awareness

of right whales and their current plight. This meeting was designed to

explain threats to right whales in the southeast United States and to

discuss the precautions necessary around them and what additional

measures the fishery might take to decrease the risk of interactions.

In addition to the above mentioned meeting, letters were sent to all

known shark gillnetters explaining the ALWTRP regulations. The letters

explained the need to contact NMFS to arrange for observer coverage

during the right whale calving season. During the

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year, this observer program was established.

The Northeast Fisheries Science Center has increased its Protected

Species Branch staff to include a large whale research coordinator. Key

research on large whales conducted or funded by NMFS include (1)

maintaining the right and humpback whale photo ID catalogues where

individual identification of animals from photographs taken throughout

the western north Atlantic are processed; (2) analyzing data collected

from the right whale photo-identification catalogue for population

assessment; (3) expanding right whale genetics studies to determine the

matriarchal lines that make up the population; (4) supporting right

whale stranding response to maximize the information collected from

each carcass; (5) conducting directed right whale photo-identification

surveys in the Great South Channel; (6) assessing capabilities to

locate whales acoustically; (7) evaluating the status of the North

Atlantic humpback whale, and (8) surveying potential offshore summer

habitats for right whales.

Changes From the Interim Final Rule

1. Definition of ``Lobster Trap.'' The definition of the term

``lobster trap'' in the interim final rule was not as precise as it

should have been. Broadly interpreted, it could have been construed as

applying to gillnets and to bottom trawls that can catch lobster as

well as to traps. These gear types were not intended to be covered by

this term. Therefore, in this final rule, NMFS changes the definition

of ``lobster trap'' to be: ``any trap, structure or other enclosure

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

catching lobsters.'' The intent of this definition is to include traps

and pots into which lobsters may crawl and be caught by virtue of their

inability to find their way out, and not to include mobile gear or

devices that catch lobsters through entanglement. The definition

includes black sea bass traps and scup traps. The terminology ``lobster

trap'' is used in this final rule, instead of ``lobster pot'' (used in

the interim final rule) solely to make the terminology consistent with

fishery management regulations. The Plan applies to the same gear,

whether called ``traps'' or ``pots.''

2. Definition of ``Gillnet''. The definition of ``gillnet'' in the

interim final rule could cause confusion as to which nets were included

in the regulations. Therefore, in this final rule, NMFS is amending the

definition to be as follows: ``fishing gear consisting of a wall of

webbing (meshes) or nets, designed or configured so that the webbing

(meshes) or nets are placed in the water column, usually held

approximately vertically, and are designed to capture fish by

entanglement, gilling, or wedging. The term `gillnet' includes gillnets

of all types, including but not limited to, sink gillnets, other

anchored gillnets (e.g. stab and set nets), and drift gillnets.

Gillnets may or may not be attached to a vessel.'' The term is intended

to include gillnets with or without tie-downs.

3. Elimination of exempted waters in the Gulf of Maine. The State

of Maine and groups representing Maine fishermen did not agree with the

lines delineating the exempted waters in the Gulf of Maine. These

groups commented that the lines chosen by NMFS were confusing and

difficult to enforce. On any given day, most lobstermen in Maine fish

on both sides of the exemption lines established in the interim final

rule. Because most fishermen in Maine waters will need to comply with

the ALWTRP regulations for some of their gear (that are set in waters

not exempted by the interim final rule), NMFS eliminates the exempted

waters in the Gulf of Maine until such time as the TRT can advise NMFS

on the most appropriate boundaries for exempted waters in that area.

Note, however, that the gear marking provisions that would have applied

in all non-exempted waters under the interim final rule have also been

changed and will not apply in most coastal waters in the Gulf of Maine.

4. Addition of exempted waters in Rhode Island. The State of Rhode

Island noted that the interim final rule failed to exempt some coastal

ponds from its regulations. In this final rule, waters are intended to

include the following rivers and coastal ponds where right whales have

never been seen: Winnapaug Pond, Green Hill Pond, Potter Pond, and the

Sakonnet River.

5. Gear marking requirements. In the interim final rule, the gear

marking system required the application of two color codes on the buoy

lines. In this final rule, the method of applying the marks has not

been changed from the interim final rule. However, gear marking is no

longer required in most areas.

The gear marking requirements of the interim final rule were

criticized by many. Some persons felt they were not specific enough to

give clear information about where entanglement problems occur. Others

were concerned that if gear was lost in a storm or towed by a boat to

another region and then entangled whales, it might give a false

impression of where the entanglement problem occurred. Some questioned

whether gear marking would provide any useful information, and others

wondered whether the method of marking would work.

In this final rule, NMFS no longer requires gear marking of lobster

and gillnet gear in most affected waters. Instead, it requires these

types of gear to be marked only in right whale critical habitat, in the

southeast observer area and on Stellwagen Bank and Jeffreys Ledge in

the Gulf of Maine. These are the areas where the risk of entanglement

is highest. If entanglements occur in the critical habitat areas during

times of high right whale use, they are subject to closure. The

Jeffreys Ledge/Stellwagen Bank area is an area used year-round by large

whales, and there have been calls for more action to lower

entanglements in that area. The marking scheme in the final rule could

give NMFS relatively precise information about entanglements that occur

in these key areas without requiring an extremely complex system that

would have to be devised to identify a large number of areas. It also

allows NMFS and the TRT to assess the value of gear marking and to

refine the technique without burdening most of the industry. If gear

marking proves workable and useful, the system could be expanded after

consultation with the Gear Advisory Group and the Take Reduction Team.

In a further change from the interim final rule, gillnetters in the

southeast U.S. need only mark their lines every 100 yards (91.4 m), not

every 100 feet (30.5 m), when this requirement comes into effect in

November 1999. The purpose of this change is to ease the marking burden

until it is known whether the system works as expected.

This gear marking requirement constitutes a collection of

information under the Paperwork Reduction Act. The Office of Management

and Budget (OMB) has given its approval to this collection of

information (OMB No. 0648-0364).

6. Gear requirements for lobster fishers in Cape Cod Bay critical

habitat. Several persons commented that the Federal government's

regulations for lobster gear in Cape Cod Bay critical habitat from

January 1 to May 15 were different from the regulations of the

Commonwealth of Massachusetts for the same area. NMFS believes that the

Commonwealth, working directly with the affected fishermen, has

developed a workable plan that has the allegiance of the fishermen to

lower the risk of entanglement. Therefore, in this final

[[Page 7534]]

rule, NMFS adopts the current version of the regulations established by

the Commonwealth for lobster gear set in this area and time.

Specifically, during the period from January 1 to May 15, weak links

with a breaking strength of no more than 500 lb (226.7 kg) must be

installed in all buoy lines, and it is permissible to set traps in

``doubles'', in which only two traps are joined together by a ground

line. Doubles can have only one buoy line. In the interim final rule,

the NMFS' regulations for Cape Cod Bay from Jan. 1 to May 15 called for

a breaking strength of 1100 lb (498.8 kg). The lower breaking strength

required by this final rule will reduce the risk that an entanglement

becomes serious. Fishing conditions in Cape Cod Bay appear to be such

that a 500 lb (226.7 kg). breaking strength does not pose a difficulty

for the industry. Allowing the use of doubles may reduce the number of

buoy lines in Cape Cod Bay. At least some fishermen have been using

four trap trawls (which may have two buoy lines) where they would

prefer to use a double (with one buoy line).

7. Elimination of anchoring options from the gillnet take reduction

technology list. The Gillnet Take Reduction Technology List in the

interim final rule allowed gillnets to hold down the lead line with

anchors, weights, or heavy rope as a bycatch reduction option. Allowing

the methods that increased the holding power of the lead line as

separate options without also requiring weak links to be installed in

the net panels has been determined to be ineffective. Without the weak

links, the extra weight could make it harder for the whale to carry a

net rather than help it to break free of the net as intended.

Therefore, in this final rule, NMFS eliminates from the Gillnet Take

Reduction Technology List the options for anchoring the lead line with

22-lb (10 kg) danforth-style anchors, 50 lb (22.7 kg) dead weights or

lead lines weighing 100 lb (45.4 kg) or more per 300 ft (92.4 m).

NMFS retains on the Gillnet Take Reduction Technology List the

option of putting weak links in the net panels. Although weak links

will only fail if the resistance to movement by the net is greater than

the breaking strength of the link (which was the original intent of the

anchoring requirements), NMFS notes that many gillnets are set with 22-

lb (10 kg) danforth-style anchors or weights with similar holding

capacity, whether or not such characteristics are on the Gillnet Take

Reduction Technology List.

The genesis of the anchoring options was a discussion within the

TRT of a suite of gear modifications consisting of weak links in the

nets and weighted lead lines. These discussions were based on a more

complex suite of gillnet modifications used in California with the aim

of reducing marine mammal entanglements. The TRT did not have before it

the full suite of modifications required by California. NMFS will

provide this to the TRT and to the GAG and will ask those groups to

consider the likely effectiveness of the California modifications and

the feasibility of applying those modifications to the New England

gillnet fishery. NMFS is also funding research on the forces that

gillnets can withstand under a range of conditions, including those

that might occur if a whale becomes entangled in the net. The GAG and

the TRT will also be asked to review the results of these tests.

8. The definition of ``anchored gillnet'' is modified slightly to

make clear that ``stab nets'' are included in this definition.

Likewise, the definition of ``sink gillnet'' is amended to clarify that

the regulations applying to sink gillnets are intended to apply to

``stab nets''. Similarly, the definition of ``gillnet'' has been

modified to clarify that what is termed ``meshes'' in some places is

included in the definition. The definition of ``Strikenet or to fish

with strikenet gear'' is amended slightly to make clear that strikenets

are considered a category of gillnets for the purposes of this rule and

that persons fishing with strikenets must comply with the call-in

requirement to fish anywhere within the SEUS observer area.

9. Several definitions were modified slightly to correct for

grammatical errors or to add clarity, including: (1) ``driftnet, drift

gillnet, or drift entanglement gear'', (2) ``tended gear or tend'', and

(3) ``weak link.''

10. New definitions for ``shark gillnetting'' and ``to strikenet

for sharks'' are included to clarify the fisheries affected by this

rule. These new definitions do not change the fisheries intended to be

covered by the Plan.

Fishery-Specific Measures of the Plan

American Lobster Trap/Pot Fisheries

Except for gear set in exempted waters, all lobster trap gear must

be set in such a way as to avoid having line floating at the surface at

any time. Floating line is allowed between two buoys on the same buoy

line and between a buoy and a high flyer.

Throughout the year, lobster trap buoy lines in the Great South

Channel must be marked with red and yellow marks. Lobster trap gear is

prohibited from the Great South Channel critical habitat area from

April 1 through June 30, until the Assistant Administrator for

Fisheries (AA) determines that alternative fishing practices or gear

modifications have been developed that reduce the risk of serious

injury or mortality to whales to acceptable levels. From July 1 through

March 31, lobster trap gear set in the Great South Channel critical

habitat must have at least two characteristics from the Take Reduction

Technology List that follows. Note that, although portions of the Great

South Channel critical habitat would be considered offshore, NMFS

believes that the weaker maximum breaking strengths allowed for inshore

gear are more appropriate in the critical habitat, since right whales

may return to the area when not expected. Therefore, the Great South

Channel critical habitat is not considered ``offshore'' for the

purposes of the Plan. Lobster trap gear set in this area must comply

with the inshore gear characteristics.

From January 1 through May 15, lobster trap gear may not be set in

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

lobster trap gear set during that time must have all four of the

following characteristics: (1) All buoys must be attached to the buoy

line with a weak link with a maximum breaking strength of up to 500 lb

(226.7 kg). (2) All traps must be set in either ``doubles'' (two trap

trawls with a single buoy line) or trawls of four or more traps. Single

traps and trawls with exactly three traps are not allowed. (3) All buoy

lines must be made of sinking line, except for the bottom third of the

line, which may be floating line. (4) All ground lines between traps

must be made of sinking line. These measures are intended to conform to

the current requirements set by the State of Massachusetts for its

portion of the critical habitat during that period. From May 16 to

December 31, lobster trap gear set in the Federal portion of the Cape

Cod Bay critical habitat must have at least two characteristics from

the Take Reduction Technology List. Throughout the year, the buoy lines

of lobster trap gear set in the Cape Cod Bay critical habitat must be

marked with red and orange marks.

The Stellwagen Bank/Jeffreys Ledge (SB/JL) area is defined as all

Federal waters in the Gulf of Maine that lie to the south of the

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

right whale critical habitat. In this area, lobster trap gear must

always have at least two characteristics from the Lobster Take

Reduction Technology list. In addition, the buoy lines of lobster trap

gear set in this area must be marked with red and black marks.

Fishermen

[[Page 7535]]

should be aware that humpback and/or right whales are present in this

area most months of the year. If the gear modifications are not

sufficient to reduce serious injury and mortality to right and humpback

whales to achieve the 5-year zero mortality and serious injury rate

goal, additional restrictions or closures in some or all of this area

may be necessary. A decision to close any portion of this area would be

made in consultation with the TRT, and after public comment.

In all other areas, lobster trap gear must be set with at least one

characteristic from the Lobster Take Reduction Technology list. This

requirement applies year-round in the inshore and offshore lobster

fishery north of 41 deg.30' N lat. and from December 1 through March 31

in the inshore and offshore lobster fishery south of 41 deg.30' N lat.

Some of the gear characteristics are applicable only to offshore

lobster fishing because conditions offshore require heavier gear.

However, fishermen using offshore gear are encouraged to use the

inshore standards. No gear marking is required in these other areas.

Figure 1 shows the boundaries of the areas where the requirements

for the lobster fishery apply.

The Lobster Take Reduction Technology List is as follows:

1. All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.

2. All buoys are attached to the buoy line with a weak link having

a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may

include swivels, plastic weak links, rope of appropriate breaking

strength, hog rings, or rope stapled to a buoy stick.

3. For lobster traps set in offshore lobster areas only, all buoys

are attached to the buoy line with a weak link having a maximum

breaking strength of up to 3780 lb (1714.3 kg).

4. For traps set in offshore lobster areas only, all buoys are

attached to the buoy line by a section of rope no more than \3/4\ the

diameter of the buoy line.

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[[Page 7537]]

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

6. All ground lines are made of sinking line.

Anchored Gillnet Fisheries

All sink gillnet gear and other anchored gillnet gear must be set

in such a way as to avoid having line floating at the surface at any

time. Floating line is allowed between two buoys on the same buoy line

and between a buoy and a high flyer attached to the same buoy line.

Sink gillnet gear is prohibited from most of the Great South

Channel critical habitat area from April 1 through June 30, until the

AA determines that alternative fishing practices or gear modifications

have been developed that reduce the risk of serious injury or mortality

to whales to acceptable levels. Sink gillnets may be used year-round in

the ``sliver area'' and from July 1 to March 31 in the entire Great

South Channel critical habitat, provided that such gear has at least

two characteristics from the Gillnet Take Reduction Technology list.

Throughout the year, gillnet buoy lines in the Great South Channel must

be marked with yellow and green marks.

From January 1 to May 15, the Cape Cod Bay critical habitat is

closed to sink gillnet gear. From May 16 to December 31, gillnet gear

set in the Cape Cod Bay critical habitat must have at least two

characteristics from the Gillnet Take Reduction Technology List.

Throughout the year, the buoy lines of gillnet gear set in the Cape Cod

Bay critical habitat must be marked with green and orange marks.

Gillnet gear in the SB/JL area (as defined in this notice under

``Fishery-specific Measures of the Plan, American Lobster Trap/Pot

Fisheries'') must always have at least two characteristics from the

Gillnet Take Reduction Technology List. In addition, the buoy lines of

gillnet gear set in this area must be marked with green and black

marks. Fishermen should be aware that humpback and/or right whales are

present in the SB/JL area most months of the year. If the gear

modifications are not sufficient to reduce serious injury or mortality

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

year zero mortality and serious injury rate goal, additional

restrictions or closures of certain portions of the SB/JL area may be

necessary.

In all other ``northeast waters'' (defined as Federal and state

waters east of 72 deg.30' W long.), gillnet gear must be set with at

least one characteristic from the Gillnet Take Reduction Technology

List at all times. Mid-Atlantic gillnets (gillnets set west of

72 deg.30' W long. and north of 33 deg.51' N lat.) must have at least

one characteristic from this list from December 1 to March 31. No gear

marking is required in either area.

Figure 2 shows the boundaries of the areas where the requirements

for the sink gillnet fishery apply.

The Gillnet Take Reduction Technology List is as follows:

1. All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.

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[[Page 7539]]

2. All buoys are attached to the buoy line with a weak link having

a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may

include swivels, plastic weak links, rope of appropriate breaking

strength, hog rings, or rope stapled to a buoy stick.

3. Weak links with a breaking strength of up to 1100 lb (498.8 kg)

are installed in the float rope between net panels.

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

Mid-Atlantic Coastal Gillnet Fishery--Drift Gillnets

From December 1 to March 31, all vessels using driftnets in the

mid-Atlantic gillnet area are required to haul all such gear and stow

all such gear on the vessel before returning to port. If driftnets are

set at night, they must remain attached to the vessel.

Southeast U.S. Shark Gillnet Fishery

The area from 27 deg.51' N lat. (near Sebastian Inlet, FL) to

32 deg.00' N lat. (near Savannah, GA) extending from the shore outward

to 80 deg. W long. is closed to shark gillnet fishing, except for

strikenetting, each year from November 15 to March 31. Strikenetting is

permitted under certain conditions set forth in the rule. In addition,

observer coverage is required for the use of gillnets in the area from

West Palm Beach (26 deg.46.5' N lat.) to Sebastian Inlet (27 deg.51' N

lat.) from November 15 through March 31 and for the use of strikenets

in the area between West Palm Beach, FL, and Savannah, GA, for the same

time period. Vessel operators intending to use these gear types in

these areas must notify NMFS at least 48 hours in advance of departure

to arrange for observer coverage. It should be noted that state waters

in this area presently ban gillnetting. In addition, shark gillnets,

including strikenets, must be marked with green and blue marks to

identify the fishery and region in which the gear is fished.

Figure 3 shows the boundaries of the areas where the requirements

for the shark gillnet fishery apply.

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[[Page 7541]]

Other Entanglement Reduction Measures Not Specified in This Plan:

Other measures under the Magnuson-Stevens Fishery Conservation and

Management Act that are expected to decrease the risk of entanglement

of whales in sink gillnets are either currently in effect or under

consideration. Reductions in allowable days at sea and seasonal or

year-round area closures to protect groundfish will reduce the risk of

entangling right whales. A significant portion of the SB/JL restricted

area is closed year-round to all gillnets (and other gear capable of

catching groundfish). In addition, currently there are 1-month closures

to gillnet and other groundfish fish gear in March, April, May, and

June along the coast of the Gulf of Maine. Additional closures are

being considered by the New England Fishery Management Council. A

prohibition against setting gillnets with mesh size greater than 7

inches in the mid-Atlantic (from the South Carolina/North Carolina

border to Delaware) from February 15 to March 15 coincides with a

portion of the time when humpback whales are present in the area and

when right whales may be migrating through the area on their way north.

Proposed closures to monkfish gillnets in the Mid-Atlantic coincide

with the time when humpback whales are likely to be in the area.

Some level of lobster trap gear effort reduction is expected to be

proposed and implemented under the provisions of the Atlantic Coast

Marine Fisheries Cooperative Act. The Atlantic States Marine Fisheries

Commission has recommended that the maximum number of traps a person

may set be limited in state and inshore Federal waters of the Gulf of

Maine to 800 traps and to 2000 traps in Gulf of Maine offshore waters

by the year 2000. Trap reductions may occur in areas south of Cape Cod

as well. Some offshore areas south of Georges Bank are closed to

lobster trap gear during some summer months in order to reduce

conflicts with mobile gear. While the closed areas are not the usual

right whale habitat, the times when lobster gear is prohibited include

periods when right whales may wander into the areas. Gear conflict

reduction measures are also expected to decrease the amount of lost

gear, which should reduce the risk that whales would become entangled

in ``ghost'' gear. Any effort reduction measures implemented for the

lobster fishery would reduce the risk of entanglement of whales in that

gear.

Comments and Responses

Comments on the interim final rule were received from the States of

Maine and Rhode Island; the New England Fishery Management Council; the

Rhode Island Coastal Resources Management Council; 19 conservation

organizations including the Center for Marine Conservation, Chequamegon

Audubon Society, Greenpeace, Humane Society of the U.S., the

International Wildlife Coalition, and a joint letter from 18

conservation organizations (including most of the aforementioned ones);

6 fishermen's organizations, including Cape Cod Gillnetter's

Association, Maine Lobster Promotion Council, Maine Lobstermen's

Association, Maine Zone E Council, Offshore Lobster ad hoc Whale

Working Group, and the New Hampshire Commercial Fishermen's

Association; Cetacean Research Unit; Marine Mammal Commission; New

England Aquarium; Washington Legal Foundation; and 23 individuals.

Approximately 4700 signatures were received on petitions urging NMFS to

strengthen the regulations in the interim final rule.

Comments in Support of the Interim Final Rule

Comment 1: A number of commenters expressed support for the interim

final rule and appreciation for NMFS responsiveness to the concerns and

suggestions made by the fishing industry on the proposed rule. These

commenters felt that the interim final rule was a good step toward

developing a cooperative relationship with the fishing industry to

reduce the bycatch of large whales.

Response: NMFS appreciates the expressions of support. It believes

that the cooperation of the fishing industry is essential to make the

ALWTRP achieve its goals.

Comment 2: Several commenters believed that the ALWTRP had a

realistic potential of achieving its stated goals.

Response: NMFS agrees, provided that the partnership with the

industry continues to make progress in reducing serious injuries and

mortalities of large whales in fishing gear. The zero mortality rate

goal may be difficult to achieve. To reach it will require continued

efforts to develop effective gear modifications and to improve the

disentanglement teams.

Comment 3: The State of Maine expressed appreciation for NMFS

commitment to fund a position to function as a liaison among the

fishermen, coastal communities, the State, and NMFS.

Response: This position is important to the outreach and gear

research efforts of NMFS in Maine to improve cooperation on the ALWTRP.

When funding is available, NMFS hopes to fund a second such liaison

position for southern New England.

Comments in General Opposition to the Plan and the Interim Final

Rule

Comment 4: Many comments and petitions were received urging NMFS to

strengthen the interim final rule on the grounds that the interim

regulations offer virtually no protection for right whales and would

probably not prevent future entanglements.

Response: NMFS acknowledges that some persons and groups are

disappointed in the regulations implemented by the interim final rule.

NMFS continues to believe that the approach taken by the ALWTRP has a

reasonable chance of achieving its difficult goals. The ALWTRP is not

just a set of regulations. It is a series of intertwined activities

that include gear research, outreach and education, disentanglement,

closed periods and gear restrictions. The Plan emphasizes cooperation

with the fishing industry, which is essential for progress on gear

development and is helpful for disentangling whales. Because there were

no known cases of serious entanglements of right whales in U.S. waters

during the first 6 months of the plan, because fishermen are developing

and testing new ways to rig their gear to avoid entanglements, and

because of the assistance of and the interest in disentanglement on the

part of the fishing community, NMFS believes that the Plan has already

reduced the risk of serious injury and mortality due to bycatch in U.S.

fishing gear.

The ALWTRP is not a static plan. If it is not achieving its goals

or if better ways to achieve the goals are identified, it can be

modified. The support and cooperation of the fishing communities will

be important in continuing to make progress on right whale

conservation.

Comment 5: The ALWTRP will do nothing to fulfill the obligations of

NMFS to reduce the take of northern right whales under section 118 of

the MMPA.

Response: NMFS disagrees. The ALWTRP balances cooperation and

regulation. NMFS believes the ALWTRP has a realistic chance of

achieving its goals.

Comment 6: NMFS cannot quantitatively measure the level of risk

reduction of various measures, and, therefore, it cannot assert that

the plan is expected to achieve the necessary take reductions within 6

months.

[[Page 7542]]

Response: NMFS agrees that it is impossible to quantify the risk

reduction of any of the measures in the ALWTRP. It acknowledged this

when it published the interim final rule. However, the same problem

besets all the measures seriously considered by NMFS or the TRT because

entanglements are so unpredictable and take place at such a low rate.

The TRT recognized this during its discussions. Even wide-scale

closures cannot be quantified as to the degree of risk reduction. The

impossibility of quantifying risk reduction should not force the

Government into choosing the only quantifiable approach to the

problem--total closure of all fixed gear fisheries where right whales

might occur.

Comment 7: There is no guarantee that the ALWTRP or the associated

interim final rule will result in the needed cooperation with the

fishing industry. That cooperation can only be achieved through an

intensive constituent outreach program.

Response: NMFS agrees. Constituent outreach is a key component of

the ALWTRP, even though the benefits are not quantifiable. Outreach

efforts have expanded greatly in the past year. Fishermen are reporting

entangled whales, and they are experimenting with various gear

modifications. Although more work may need to be done, progress is

being made.

Comment 8: NMFS must balance a cooperative approach with the

implementation of a take reduction plan that prevents entanglements

rather than merely relies on disentanglement as a take reduction

strategy.

Response: The ALWTRP contains specific measures to prevent

entanglements, such as closures of critical habitat to some gear types

and restrictions on ways that gear can be rigged. In addition to these

measures and to strengthening the disentanglement program, NMFS has a

third key component of the plan, namely research and development of

gear that will either lower the risk of entanglement or reduce the risk

that an entanglement will result in a serious injury.

Comment 9: A number of commenters criticized various aspects of the

ALWTRP because they were weaker than the consensus portions of the TRT

report, particularly in the mid-Atlantic anchored gillnet fisheries and

for the SB/JL area.

Response: The TRT report was not a consensus document. Although the

TRT reached consensus on parts of a plan, the understanding within the

team was that these parts were contingent on reaching agreement on a

complete set of recommendations. Because no overall consensus was

reached, NMFS is unable to assume that all members of the TRT still

support any particular part of the negotiations.

Comment 10: Several commenters criticized the ALWTRP because it was

weaker than proposals that the industry had submitted to NMFS for

various areas, including for Cape Cod Bay and the SB/JL area.

Response: Prior to the publication of the proposed ALWTRP, a group

of industry and state agencies in the Gulf of Maine formed an informal

Industry/State Agency Take Reduction Team (ISATRT) to advise NMFS on

bycatch reduction measures. After the comment period for the proposed

rule, it was no longer apparent that the industry supported the

recommendations made by its representatives on the ISATRT.

Comment 11: The ALWTRP is almost worse than doing nothing, as it

creates the appearance of meaningful action when, in fact, nothing has

been done to reduce risk.

Response: As explained earlier, NMFS believes that the ALWTRP has a

reasonable chance of reducing the risk of entanglement.

Comments Regarding Gear and Take Reduction Technology Lists

Comment 12: Several commenters liked the ``menu'' approach allowed

by the Take Reduction Technology Lists and believed this approach

allowed flexibility in adapting individual fishing operations to the

requirements of the ALWTRP.

Response: NMFS appreciates this support for the flexibility allowed

by the Take Reduction Technology Lists. Note, however, that many

comments were received that opposed the Take Reduction Technology

Lists.

Comment 13: Many commenters opposed the gear technology lists

because they are not a departure from current fishing practices that

have entangled whales. Therefore, the lists would not achieve the

required bycatch reductions.

Response: The gear technology lists were not intended by themselves

to meet the short-term goal of the ALWTRP, i.e., reducing right whale

entanglements to below PBR. The reason for implementing the gear

technology lists is to initiate a flexible process of gear modification

over the next 4 years. As progress is made in developing fishing gear

and practices that lower the risk of a serious entanglement beyond that

gained from using the options on the current lists, new options will be

added, and, if appropriate, less effective options may be deleted.

There may also be a small immediate risk reduction because some

fishermen not using any of these options would have to improve the way

they set their gear. The gear technology lists may be modified in the

future if new gear is developed and tested in field trials or if any of

the characteristics on the list are determined by NMFS to be

insufficient to reduce entanglement risks.

Comment 14: NMFS should revise the gear technology lists to require

the use of gear characteristics that are more risk averse than is

current practice.

Response: NMFS intends to continue funding research into gear

technologies that reduce entanglement in order to upgrade the lists.

Various possible weak links are being investigated. The operational

forces exerted on fixed gear are being measured and the theoretical and

actual forces exerted by whales are being studied to determine the best

breaking strengths to use. So far, however, no new technology has been

tested and determined to both lower the risk of a serious entanglement

and be operationally feasible. NMFS intends to seek the advice of the

TRT and the GAG, and to seek public comment, before changing the lists.

Comment 15: The gear technology lists undermine NMFS authority

because these are regulations that serve no functional purpose.

Response: NMFS disagrees that the regulations serve no functional

purpose and, therefore, does not agree with the conclusion that the

lists undermine the authority of NMFS. As explained above, NMFS expects

some fishermen to improve the way their gear is set, providing a small

decrease in the risk of entanglement. Also, by establishing the concept

of gear technology lists now and by working with fishermen and gear

technology experts to develop gear modifications that will further

reduce entanglement risk, more progress can be made in the future as we

strive to achieve the long-term goal of the Plan.

Comment 16: A number of the options included on the gear technology

lists have been proposed without adequate research to indicate that

they may reduce entanglements.

Response: Because the process (or processes) by which entanglements

occur is not known, it is difficult to conduct definitive research on

whether any particular option on the gear technology lists is

effective. The items on the gear technology lists were recommended by

the GAG, based on descriptions by members of the disentanglement team

of ways in which entanglements might occur. NMFS will

[[Page 7543]]

ask the GAG and the TRT to review the lists.

Comment 17: It would be useful to rank the options on the gear

technology lists in order of their anticipated benefit.

Response: NMFS agrees, but is unable to rank the options at this

time. It will refer this suggestion to the GAG and the TRT.

Comment 18: NMFS should postpone requiring compliance with the gear

technology lists in areas where the risk of entanglement is low (i.e.,

those areas where only one option from the Gear Technology lists is

required under the Plan).

Response: Entanglements have been reported from state and Federal

waters throughout the northeastern U.S. waters. Therefore, there is

value in requiring gear modifications in most waters. Part of the value

of requiring compliance with the gear technology lists in all affected

waters is to gain acceptance of the concept of a list of take reduction

technologies. As technology is improved, NMFS believes it will be

easier to make changes to the list than to get agreement to having the

lists themselves. Also, if all persons fishing in affected waters are

at least aware that they are subject to the lists, there may be more

people thinking creatively about how to reduce bycatch without

affecting the fishing characteristics of the gear.

Comment 19: Requiring only one option from the Gear Technology

lists in lower risk areas is not enough.

Response: There was a divergence of views on this subject (see

Comment 18). NMFS will refer this comment to the TRT and the GAG, which

will review the gear technology lists.

Comment 20: Several commenters stated that a lead line weighing 100

pounds per 300 feet (91.4 m) is not manufactured. Some urged that the

requirement be changed; others urged that it be dropped.

Response: Lead line with these characteristics is available, though

it is not in common usage. However, since the option of using this kind

of line is no longer on the gillnet gear technology list, the issue of

availability is moot.

Comment 21: The breaking strengths of weak links may need to be

adjusted for different fishing areas due to tide, current, and setting

protocols, but the link should be the weakest link possible that is

consistent with practical fishing gear handling and whale safety.

Response: NMFS agrees, but believes it needs more information

before establishing region-specific breaking strengths. NMFS is

collecting data on forces exerted on gear as well as by whales. This

information will be presented to the GAG and the TRT.

Comment 22: There was support for allowing sinking buoy lines to

have a section of floating line at the bottom to avoid snagging.

Response: This option is available to all fishing operations. The

purpose of allowing the section of floating line is to minimize the

risk of lost gear due to chafing on the ocean bottom.

Comment 23: The name ``Take Reduction Technology List'' is

misleading and should be changed.

Response: For now, NMFS prefers the formal name because it is

descriptive of its goal. However, ``gear technology list'' is already a

more common informal term of the option lists.

Comment 24: One commenter urged NMFS not to amend gear or marking

requirements without first obtaining the advice and consent of the GAG.

Response: NMFS intends to seek the advice of the GAG before

changing the gear marking requirements or the Take Reduction Technology

Lists. However, the consent of the GAG will not be a requirement of any

changes.

Comment 25: The procedure NMFS has set forth for evaluating whether

gear modifications may be allowed into closed areas is too vague.

Setting a standard of reducing the risk of entanglement to ``acceptable

levels'' is also too vague. A rigorous standard must be set.

Response: NMFS agrees that the standards are vague. Because the

degree of risk reduction required to achieve the goals of the MMPA is

not quantifiable, any standards are likely to be vague (see following

comment). The value of engaging both the GAG and the TRT in review of

any gear modifications is to ensure as much as possible that changes to

the gear technology lists are appropriate from a variety of viewpoints.

Comment 26: The option of allowing lobster or gillnet gear into the

closed areas should be exercised only if the gear reduces the risk of

serious injury or mortality to whales to levels approaching zero.

Response: NMFS agrees with the point of view reflected in this

suggestion, but notes that this standard is vague. The probability of

entanglement in any given piece of fishing gear is already extremely

low. Bycatch is a problem because right whales are so rare that even

this low probability could harm the population. The suggested standard

does not clarify (and perhaps cannot quantify) how much a gear

modification must reduce that very low risk to be ``levels approaching

zero.''

Comment 27: There were many comments making specific suggestions

for changes to the gear technology lists. Included in these suggestions

were (1) The 1100 lb (498.8 kg) maximum breaking strength for weak

links is too great and will neither reduce the risk of entanglement to

whales nor facilitate the whale breaking free from the gear; (2)

Floating line at the bottom of a buoy line should be no longer than 10

percent of the depth of the water column; (3) There should be sinking

ground lines between lobster traps year round in Cape Cod Bay, where

the bottom is primarily sand and is less likely to cause extensive

chafing or hinder the retrieval of lost gear as in the case of a rocky

bottom; (4) NMFS should require four options of the Take Reduction

Technology Lists in Cape Cod Bay, the Great South Channel and

Stellwagen Bank/Jeffreys Ledge, instead of requiring only two; (5) NMFS

should reduce the allowed diameter of line in critical habitat and the

SB/JL area to \5/16\ (0.79 cm); (6) NMFS should reduce the maximum

breaking strength of weak links allowed in Cape Cod Bay and Stellwagen

Bank/Jeffreys Ledge to 400 lb (181.4 kg); (7) NMFS should reduce the

maximum breaking strength of weak links allowed on Stellwagen Bank/

Jeffreys Ledge to 750 lb (340.1 kg); (8) NMFS should reduce the maximum

breaking strength of weak links allowed in the Great South Channel to

less than 1000 lb (453.5 kg); (9) NMFS should increase the maximum

breaking strength of weak links allowed in the Great South Channel area

to 1500 lb (680.3 kg); (10) In the Great South Channel, the floating

line allowed for the bottom ten fathoms of the buoy line should be up

to \1/2\ inch (1.27 cm) diameter because of the problem of chafing in

that region; (11) Lobster trawls should be required to use sinking

ground line or at least to put a weight on each ground line to reduce

the risk of entanglement in the ground line; (12) In Cape Cod Bay

critical habitat and in the SB/JL area, NMFS should require gillnets to

have (a) a floatline that is \5/16\ inch (0.79 cm) diameter

polypropylene when using net floats or \1/2\ inch (1.27 cm) diameter

polypropylene foam core for use in flounder nets; (b) weak links at or

near the surface buoy of a breaking strength less than or equal to 400

lb (181.4 kg); (c) Danforth-style anchors to anchor the net instead of

weights to increase the likelihood of the weak links parting; (d) nets

attached to a lead line weighing 100 lb (45.4 kg) or more per 300 feet

(91.4 m); (e) weak links between the net bridles on the float line; (f)

sinking line for buoy line not to exceed \5/16\ inch

[[Page 7544]]

(0.79 cm) diameter, except for the last 10 fathoms, which may be up to

\1/2\ inch (1.27 cm) polypropylene spliced in to prevent formation of a

knot and to create no more than 2 fathoms of vertical lift; and (g) 15

fathom bridle and groundlines to anchors, and (13) In the Great South

Channel critical habitat, NMFS should require gillnets to have: (a) a

floatline that is \5/16\ (0.79 cm) to \3/8\ inch (0.95 cm) diameter

polypropylene when using net floats or \1/2\ inch (1.27 cm) diameter

polypropylene foam core for use in flounder or monkfish nets; (b) weak

links at or near the surface buoy of a breaking strength less than or

equal to 1000 lb (453.5 kg); (c) Danforth-style anchors to anchor the

net instead of weights to increase the likelihood of the weak links

parting; (d) nets attached to a lead line weighing 100 lb (45.4 kg) or

more per 300 feet (91.4 m); (e) weak links between the net bridles on

the float line; (f) sinking line for buoy line not to exceed \5/16\

inch (0.79 cm) to \3/8\ inch (0.95 cm) diameter, except for the last 10

fathoms, which may be up to \1/2\ inch (1.27 cm) polypropylene spliced

in to prevent formation of a knot and to create no more than 2 fathoms

of vertical lift; and (g) 15 fathom bridle and groundlines to anchors.

Response: These suggestions are useful. Some of them are

conflicting; others may not work in all areas and, if implemented,

could increase the amount of lost gear. NMFS intends to refer all these

comments to the GAG and the TRT for their review.

Comments Regarding Gear Research

Comment 28: NMFS must make a strong financial commitment to an

aggressive gear research and development program immediately.

Response: NMFS agrees and intends to continue to fund gear research

for the foreseeable future. In the 1998 fiscal year, NMFS allocated

$130,000 for gear research. Additional funds were dedicated to

outreach. NMFS expects to allocate the same or more funds in 1999, 2000

and 2001.

Comment 29: The ALWTRP provides little incentive for the fishing

industry to cooperate in gear research. NMFS must state clearly the

implications of failing to find a technological solution to the

entanglement problem.

Response: NMFS acknowledges the concern regarding the commitment of

the fishing industry to cooperate in gear research. In actuality, the

cooperation from the industry has been high, both in terms of ideas and

testing. NMFS believes that the outreach efforts have informed the

industry of the difficulties of reaching the zero mortality rate level,

especially for right whales, and that the industry is working actively

to find a technological solution to the problem.

Comment 30: NMFS should conduct research into the development of a

weak buoy line, which might be more likely to reduce whale

entanglements than weak links alone.

Response: NMFS agrees. NMFS is now in the process of awarding

contracts to develop this kind of system.

Comment 31: Research should be done with baleen from dead whales to

see how rope passes through it.

Response: NMFS agrees and has tested how rope passes through the

baleen from several species this year. The results were presented to

the GAG this fall.

Comment 32: NMFS should continue its research to determine whether

a weaker breaking strength could be used in Cape Cod Bay.

Response: This research is now being undertaken; preliminary

results were presented to the GAG this fall.

Comment 33: NMFS should not conduct research on weak links with

1100 lb (498.8 kg) breaking strengths, as this represents no risk

reduction.

Response: NMFS agrees. It is not trying to develop a better link

that breaks at 1100 lb (498.8 kg). Instead, it is trying to develop

weaker links and is seeking information about what breaking strengths

are appropriate in each region.

Comment 34: It would be useful to review photographs of entangled

whales to try to determine how many of them have just line wrapped

around the body (in which case a weak link at the buoy may not be

helpful).

Response: NMFS agrees that this would be useful information. It is

conducting detailed investigations of all entanglements reported in

1998.

Comment 35: Research should be done on how to put weak links at the

bottom of fishing gear.

Response: NMFS agrees that this could be an important breakthrough,

although it will take some creativity to design a weak bottom link that

will still allow gear to be hauled. Research is now being conducted to

develop a workable weak link to be used between the gear and the buoy

line.

Comment 36: There should be research on ways to put weak links into

offshore lobster gear because they are so much heavier than inshore

gear.

Response: Offshore lobster gear tends to be substantially heavier

than inshore gear. This may make it more difficult for a whale to break

free if it becomes entangled. This heavier gear also makes the

development of weak links more difficult. However, NMFS agrees that

solving the problem of putting weak links into offshore lobster gear

could be an important step forward in bycatch reduction and has issued

a Request for Proposals to address this concern.

Comment 37: Research should be done on the configuration of ground

lines between lobster traps; an upward bow of line between traps

represents an entanglement risk.

Response: This is being done through in situ observations of both

lobster and gillnet configurations while the gear is in the water.

Comments Regarding Gear Marking

Comment 38: Many commenters were opposed to the gear marking scheme

as outlined in the interim final rule. Some commenters believed that

the information that the gear marking would provide would not be

specific enough to determine where entanglements were occurring. Others

thought information about location might be misleading, since marked

gear could be dragged to another location before an entanglement

occurred. Some questioned whether the markings would remain detectable.

Several believed that whatever benefit gear marking might provide would

not outweigh the burden to the fishermen. Several commenters suggested

that gear marking should not be required in exempted waters.

Response: The purpose of requiring gear marking is to obtain better

information about where entanglements are taking place. NMFS agrees,

therefore, that the marking scheme in the interim final rule was too

general and would not have provided useful information about the

specific region where an entanglement took place. However, a color-

coded marking scheme that is specific for every region and gear type of

interest would be extremely complicated. Given the reservations about

gear marking, NMFS has decided that it would be best to have a

relatively small-scale pilot program to determine whether the gear

marking process works and if it provides useful information. Therefore,

gear marking will only be required in critical habitats, in the

southeast U.S. observer area, and in the SB/JL area. This scheme should

provide specific information about where gear that entangles a whale

was first set, provided the entanglements take place in one of these

regions (which are the areas of greatest concern). It will also allow

NMFS to determine whether gear marking works on an operational basis

before requiring wide-scale marking. NMFS acknowledges that this gear

marking scheme does not surmount the problem of gear that is dragged by

some other force from one region to another and then entangles a whale.

However,

[[Page 7545]]

implementation of gear marking in this pilot program may help to

evaluate how big a problem this might be.

Comment 39: Gear marking is an important data gathering device that

may assist in designing future bycatch reduction measures to achieve

the zero mortality rate goal.

Response: NMFS believes that gear marking has the potential of

providing important data on where entanglements occur. This information

could contribute to future measures to reduce entanglement risk. There

are questions about gear marking, both from an operational standpoint

and with regard to the interpretation of the data it might provide.

NMFS believes that the relatively restricted gear marking scheme in the

final rule will help resolve those questions.

Comment 40: Gear marking does not reduce risk; it simply allows

NMFS the possibility of knowing where entanglement occurred.

Response: NMFS agrees. However, the purpose of gear marking is

exactly to know more about where an entanglement occurs in order to

focus future take reduction measures on the places where the risk is

greatest.

Comment 41: NMFS should consult with state governments, the TRT,

and the GAG with a view to improving the gear marking system by 1999.

Response: NMFS will ask the GAG and the TRT to keep the gear

marking scheme in this final rule under review. If major improvements

are recommended, NMFS may modify the gear marking scheme again.

However, NMFS expects to implement the current scheme for at least two

years in order to get a better picture of its value. The states will be

involved in the GAG and the TRT and their experience and concerns will

be taken into account during the discussions in these groups.

Comment 42: Gear marking should not apply in exempted areas.

Response: NMFS no longer requires gear marking in exempted areas.

Area-specific Comments

Comment 43: The closures in critical habitats are not likely to

result in significant risk reduction, even though they occur at times

when right whales are most likely to be present, because the closures

take place at times when fishing effort is low.

Response: NMFS believes the current closures are sufficient to

achieve the short-term goal of the ALWTRP by providing protection in

areas and times when right whales congregate. If it becomes apparent

that the long-term goal cannot be met through gear modifications,

further closures or other actions may be necessary.

Comment 44: The Cape Cod Bay critical habitat area should be closed

to lobster gear as well as to sink gillnet gear from January 1 to May

15.

Response: NMFS believes that the restrictions imposed on lobster

gear in Cape Cod Bay are sufficient to protect large whales from

entanglement. If there is evidence that this belief is unfounded, NMFS

will consider further restrictions in that area, including prohibiting

lobster fishing from January 1 to May 15. The Commonwealth of

Massachusetts is closely monitoring lobster fishing effort in Cape Cod

Bay during the winter, so the effectiveness of the regulations in Cape

Cod Bay should be determinable. The gear marking requirements for

lobster gear in that area may also help to monitor the effectiveness of

the regulations.

Comment 45: The decision to exempt Long Island Sound is

appropriate, since no right whales have been seen there in 20 years.

Response: NMFS agrees.

Comment 46: The closure of the Great South Channel critical habitat

to lobster gear from April 1 to June 30 is appropriate.

Response: NMFS agrees.

Comment 47: It is irresponsible to allow gillnetting in the

``sliver area'' of the Great South Channel because right whales are

known to use the area during that time period.

Response: NMFS agrees that right whales and gillnet gear may occur

in this area at the same time, as seen in the 1998 aerial surveys. It

will consider closing this area in the future if the MMPA goals are not

being met and will urge the TRT to discuss this option as a way to

continue progress toward the long-term goal of the Plan. However, as

explained in the interim final rule, NMFS understands that the

gillnetters in the Sliver Area generally tend their gear, and hence are

likely to see and report entangled whales quickly. One right whale that

had been entangled elsewhere was disentangled based on a call from a

gillnetter in the vicinity of the Sliver Area in 1997.

Comment 48: Gillnetting should be allowed in the Great South

Channel once gear has been modified to prevent the potential of

entanglement.

Response: NMFS agrees in concept but notes that this is another

``vague standard.'' It will be difficult to demonstrate that a gear

modification will prevent entanglements, given our limited

understanding of how entanglements occur. Because there will be

differences in opinions of what constitutes an adequate demonstration

of risk reduction, NMFS will seek the advice of the TRT and the GAG on

whether to allow modified gear into a closed area.

Comment 49: The gillnet closure in the Great South Channel should

only extend from April 1 to May 31 because the right whales are

generally in the ``Area 1'' groundfish closure (where gear is

prohibited year round) by June.

Response: NMFS is not aware of any analysis to support this

assertion. Therefore, it will not change the timing of the closure in

the Great South Channel in this final rule, but it will ask the TRT for

advice on this suggestion.

Comment 50: The offshore lobster fishery represents a significant

risk to right whales because the gear is heavier and because the

chances of seeing an entangled whale and the ability to disentangle it

are lower than the chances for inshore lobster gear. Therefore, more

stringent measures should be applied to the offshore lobster gear.

Response: NMFS agrees that the gear used in the offshore lobster

fishery is generally heavier than inshore gear. Furthermore, offshore

lobster gear is known to entangle right whales. However, it is not

clear that offshore lobster gear poses a greater threat to right whales

than inshore gear. Lobster gear is sparse offshore, and right whales do

not appear to be resident in any offshore area for predictable times of

the year. NMFS notes that the heavier nature of the offshore gear will

make it more difficult to devise a technological solution to the

entanglement problems that may occur there. However, NMFS is funding

gear research to find a solution to this problem.

Comment 51: There was support for the ALWTRP closure of the Cape

Cod Bay critical habitat to gillnet gear for the period of 1 January to

15 May.

Response: NMFS continues to believe that a closure in this area for

this duration is prudent. It notes, however, that there was support for

allowing more flexibility in opening the area early if right whales

leave before May 15. (See the following comment.)

Comment 52: The regulations for Cape Cod Bay critical habitat allow

NMFS to lift restrictions if right whales have been determined to have

left the Bay early. There should be a similar provision that allows

NMFS to keep the area closed if right whales have not yet departed.

Response: Paragraph (g)(2)(v) of Sec. 229.32 would allow NMFS to

publish in the Federal Register criteria either to open an area if

right whales had departed earlier than expected or to keep the area

closed if right whales are

[[Page 7546]]

remaining in the area longer than expected.

Comment 53: The western boundary of the SB/JL area extends too far

toward the coast. There have been whale sightings there, but no

incidents of serious entanglements.

Response: Because there have been whale sightings in this area and

because the actual locations of most entanglements are unknown, NMFS

considers it prudent to keep the boundaries of the SB/JL area as in the

interim final rule. It will seek the advice of the TRT as to whether

the boundaries should be changed.

Comment 54: There is no need for gear modifications or gear marking

in New Hampshire state waters.

Response: This final rule does not require gear marking in New

Hampshire state waters. NMFS believes that the proximity to the

relatively high-risk SB/JL restricted area, where several species of

whales are commonly found, justifies requiring the use of at least one

option from the Take Reduction Technology Lists.

Comment 55: There was support for the driftnet gear fishing

practices requirements in mid-Atlantic waters.

Response: NMFS appreciates this statement of support. Note that the

full rationale for this provision was presented in the Federal Register

document containing the interim final rule.

Comment 56: One commenter supported the requirement that driftnets

in the mid-Atlantic be tended, even though the commenter did not

believe that it reduced risk. The commenter believed that tended nets

were not less likely to entangle whales than were untended nets and

that the only advantage would be the immediate knowledge that an

entanglement occurred. Since the nearest disentanglement team was in

New England, there would be no benefit to this knowledge.

Response: NMFS believes detecting an entanglement immediately

improves the chances of a successful disentanglement. As the commenter

noted, a whale caught in a tended driftnet would be noticed quickly.

The exact position of that animal would then be known, and the

fisherman could assist in keeping track of that animal until the

disentanglement team could get to the site. This should increase the

chances of disentangling the whale.

NMFS is expanding the disentanglement network to cover the mid-

Atlantic area. The first workshop to train fishermen in the mid-

Atlantic area to assist in responding to entanglements was held in

early December 1998, and additional training sessions are planned for

the future. NMFS hopes to avoid a similar situation as that which

occurred in March 1998 when a humpback whale died in gillnet gear

before a disentanglement team could reach the site.

Comment 57: There was support for the boundaries of the southeast

U.S. restricted area and the southeast U.S. observer area and for the

prohibition on driftnet use in the southeast U.S. restricted area

during the times when right whales are likely to be present.

Response: NMFS appreciates the statement of support. The rationale

for the boundaries was explained in the interim final rule.

Comment 58: The best dates for the closure of the southeast U.S.

restricted area would be from November 1 through April 1.

Response: The dates of the southeast U.S. closure were selected by

the TRT based on historical sighting data. Only two whales have been

sighted in this area prior to November 15--one in 1986 and one in 1988.

Therefore, NMFS believes the November 15 starting date for this closure

is appropriate.

Comment 59: There was support for the strikenet provisions in the

southeast U.S. restricted area.

Response: NMFS appreciates the statement of support. The rationale

for the strikenet provisions was explained in the interim final rule.

Comment 60: There is no evidence that strikenetting has posed a

risk to right whales. Therefore, restrictions on strikenetting offer

little reduction in risk to right whales.

Response: As explained in the interim final rule, the southeast

U.S. drift gillnet fishery for sharks is believed to be responsible for

the entanglement of at least one right whale. Although strikenetting

may pose less of a problem than other forms of gillnetting (and

therefore is not prohibited during the closed season), the ALWTRP

imposes some regulations to further reduce the potential for

entanglement. Therefore, NMFS believes it is appropriate to take

precautionary steps to reduce the risk of future entanglements.

Comment 61: NMFS should require that observers be on board vessels

operating with strike nets in the southeast U.S. restricted area during

the closed period.

Response: NMFS will attempt to place an observer on every vessel

fishing for sharks with strikenets in the southeast U.S. restricted

area during the closed period. It does not seem appropriate, however,

to prohibit a person to fish in cases when NMFS fails to provide an

observer for that trip.

Comment 62: Gear set adjacent to critical habitat should be subject

to the same restrictions as that placed on gear fished within the

critical habitat because animals do not respect lines drawn on maps.

Response: The boundaries of right whale critical habitats were

selected because they enclosed about 85 percent of the historical right

whale sightings. While it is true that right whales must pass through

adjacent waters to reach any critical habitat, the chances of finding a

right whale in an area adjacent to a critical habitat are substantially

less than of finding a right whale in the critical habitat. Therefore,

less restrictive measures are appropriate.

Because the right whale sighting record in the southeast U.S. area

is relatively new, the critical habitat boundaries there may possibly

be less appropriate than those in the northeast. As sighting data are

collected, NMFS may consider revising the southeast U.S. critical

habitat boundaries. However, gillnet restrictions in this area have

been expanded north, south, and east beyond the critical habitat

boundaries, encompassing all known sightings of right whales in the

vicinity.

Comments Regarding Disentanglement Efforts

Comment 63: NMFS is placing too much faith in disentanglement as a

key component of the ALWTRP. No serious wildlife management plan relies

on first aid to injured animals in preference to preventing death and

injury in the first place.

Response: NMFS agrees that preventing entanglement is preferable to

disentangling whales if the cost and effectiveness of each method are

equivalent. The ALWTRP relies on a mixture of measures to lower the

risk of entanglement, such as closures of critical habitats and gear

restrictions, and on disentanglements when whales do encounter gear. In

addition, the ALWTRP encompasses research on cost-effective gear

technologies that will further reduce entanglement risk and on outreach

and education to show fishermen ways to set their gear that could

reduce risk, to get ideas from fishermen as to fruitful avenues for

gear research, and to encourage fishermen to assist in

disentanglements.

Comment 64: The ALWTRP does not have a specific proposal to

establish, train, and equip regional disentanglement response teams.

Response: NMFS is in the process of expanding the disentanglement

teams. A permanent coordinator has been established in Maine, and

efforts to set

[[Page 7547]]

up teams in the southeast and mid-Atlantic are underway.

Comment 65: Simply calling in an entanglement does not necessarily

result in an animal being disentangled.

Response: NMFS agrees. However, reporting an entanglement is a

necessary first step to removing the gear from an animal. The fishing

industry can provide a wide-ranging sighting network in regions where

other vessels rarely go. In addition, fishermen who call in an

entanglement are sometimes able to keep track of the animal until the

disentanglement team arrives and to assist in removing the gear. All

these efforts can help improve the chances of removing the gear without

serious injury to the whale.

Comment 66: Improving the disentanglement effort is more

appropriate for achieving the long-term goal than the short-term goal.

Response: Improving the disentanglement effort is appropriate to

achieve both the short-term and the long-term goal of the ALWTRP. NMFS

intends to continue to improve the disentanglement effort to help

achieve the long-term goal of the Plan.

Comment 67: Right whales are notoriously difficult to disentangle

because they tend to thrash wildly, whereas other species may become

more docile during disentanglements. Therefore, disentanglement should

not be viewed as a long-term solution to the bycatch problem.

Response: NMFS acknowledges the difficulties in disentangling right

whales. Although it intends to continue to improve the capabilities of

the disentanglement network, it is also seeking to develop gear

technologies that will reduce entanglements to help achieve the long-

term goal of the Plan. NMFS will continue to support the

disentanglement effort until an effective solution involving fishing

gear or practices is found.

Comment 68: Because no vessel is allowed within 500 yd (457 m) of

right whales, detecting entangled whales will be difficult, making

reliance on disentanglement even more problematic.

Response: NMFS acknowledges the difficulties in detecting entangled

right whales. Nevertheless, if an entangled right whale is seen, an

effort should be made to remove the gear. The MMPA regulations

specifically provide an exception for a vessel to approach a right

whale closer than 500 yd (457 m) to investigate an entanglement,

provided the vessel is authorized by NMFS to do so.

Comments Regarding Contingency Measures

Comment 69: Several commenters asked for clarification of the

process by which NMFS could keep an area closed if right whales remain

longer than expected or could open an area earlier than expected if the

whales leave early.

Response: A timely process invoking the regulations of this final

rule is not yet available. Because the criteria for opening an area

early or for keeping an area closed are likely to both be

controversial, NMFS intends to seek a recommendation from the TRT as to

an acceptable process. Note, however, that section 118(g) of the MMPA

gives NMFS authority to implement emergency closures to protect marine

mammals if certain criteria are met. Likewise, the ESA allows emergency

closures to protect right whales, humpback whales, and fin whales.

These authorities could be used to keep critical habitats closed to

fishing gear if right whales remain longer than expected (provided

relevant criteria are met), although they cannot be used to open an

area if right whales leave earlier than expected.

Comment 70: Several commenters expressed concern about the

possibility that the SB/JL area might be closed to gillnetting if

further take reduction measures are necessary. They asked for

clarification on the process of making such a decision.

Response: Except when there is a need to implement emergency

measures under the MMPA or the ESA as explained in response to comment

69, a decision to close the SB/JL area to gillnetting for the purposes

of whale conservation would be made by NMFS after consultation with the

TRT and after public comment on a proposed rule.

Comment 71: There was support for the provision to close critical

habitat to a gear type if its allowance to be set in that area during a

closed period results in a serious injury or mortality. However, if

NMFS must take this action, it should consult with the TRT.

Response: NMFS intends to consult with the TRT if it is considering

taking this action, unless an emergency situation exists.

Comment 72: One group felt that the provision that would require

closure of critical habitat if gear that is allowed to be set there

entangles a whale should not be mandatory. There are many factors in

dealing with people, animals and the ocean, and some flexibility is

needed. If fishermen believe that reporting an entanglement will lead

to the closure of the fishery in that area, there will be less

incentive to cooperate.

Response: NMFS is aware that regulations cannot account for every

contingency, and that the possibility of closure could be a

disincentive to reporting entangled whales. However, there is some risk

in allowing gear to be set in areas when right whales are expected to

be in the area. Although NMFS believes this risk is justifiable, it

believes that it should have a clear contingency plan in case this risk

is underestimated. It will, however, ask the TRT to provide advice on

this matter.

Comment 73: Several commenters expressed disappointment that NMFS

had removed specific criteria for extending gear requirements or

closing an area in the event of anomalous right whales distributions.

Some felt that the final rule must specify criteria for mandatory

institution of closures in the case of anomalous right whale

distribution. Others felt that NMFS should, at a minimum, implement an

early warning mechanism to notify fishermen if right whales are in an

area.

Response: The criteria contained in the proposed rule for closing

an area in the event of anomalous right whale distributions were

unilaterally developed by NMFS. During the comment period, a number of

difficulties and ambiguities in the criteria were pointed out.

Therefore, NMFS did not include the criteria in the interim final rule

or in this final rule. It will, however, ask the TRT to develop

appropriate ways of dealing with this situation. Note that NMFS has

established a right whale alert program to inform marine users of the

presence of right whales in an area.

Comments Regarding Constituent Outreach

Comment 74: Many commenters urged NMFS to continue and improve its

outreach efforts, especially by going to where the fishermen are

gathered, such as on the docks and at their forums and association

meetings, rather than require industry to attend meetings convened by

NMFS.

Response: NMFS intends to continue its outreach efforts, which are

a key component of the ALWTRP.

Comments Regarding Process and Relationships

Comment 75: NMFS should clarify the roles of the TRT and the GAG.

Response: Each group serves a different function. The TRT is

composed of persons representing all stakeholders and having a wide

range of expertise on fishing practices and on scientific, technical,

and policy matters. NMFS intends to use the TRT to advise

[[Page 7548]]

it on general strategies for reducing serious injuries and mortalities

of large whales due to entanglements and for monitoring the progress of

the ALWTRP toward its goals. The GAG is a technical body composed of

persons with first-hand experience with fishing gear or

disentanglements. Its function is specifically to provide technical

advice on matters pertaining to fishing gear.

Comment 76: Several commenters supported the creation of a GAG and

urged that it be continued.

Response: NMFS intends to continue to seek advice from the GAG on

matters pertaining to development and use of technology that can reduce

the risk of entangling large whales. NMFS convened a second meeting of

the GAG in October 1998 and plans to convene the group at least once in

1999.

Comment 77: NMFS usurped the authority of the TRT by creating a

competing body in the GAG. There was no representation from the

conservation community in that Group.

Response: The TRT and the GAG are both advisory bodies to NMFS,

and, as such, neither has authority to make decisions. One member of

the conservation community with expertise in gear development was asked

to participate on the GAG but was unable to do so. NMFS intends to

continue to seek participation on the GAG from the conservation

community, subject to the requirement that the participant have first-

hand experience with fishing gear.

Comment 78: NMFS should require that recommendations of the GAG be

reviewed by the TRT.

Response: To the extent that timing allows, NMFS will ask the TRT

to review the recommendations of the GAG. In this regard, it will try

to convene meetings of the GAG prior to meetings of the TRT in order

that the work of the former can be reviewed by the latter.

Comment 79: Several commenters questioned the value of seeking the

advice of the TRT on matters regarding the Take Reduction Technology

Lists, since many of the TRT members are not fishermen or gear

specialists. The GAG should have the lead responsibility for developing

and recommending gear modifications.

Response: NMFS believes the GAG should have a leading role in

developing and recommending gear modifications. However, the GAG need

not be the only source of new ideas for gear modifications; the TRT or

any person may make recommendations to NMFS about gear research. NMFS

notes that keeping the TRT informed of the activities of the GAG will

be essential for the TRT to fulfill its role of monitoring the progress

of the ALWTRP.

Comment 80: All gear marking and modification proposals should be

approved by the GAG.

Response: NMFS intends to consult with the GAG on matters

pertaining to gear technology. However, the GAG does not have authority

to approve gear or gear marking proposals.

Comment 81: The commitment to improving the involvement of the

fishing industry in whale bycatch reduction is laudable but of

questionable concrete benefit, especially if it results in

recommendations to continue current fishing practice.

Response: NMFS believes that involving the fishing industry in

whale bycatch reduction is the only practical way to achieve the goals

of the ALWTRP. The fishing community has much to offer in the form of

ideas for better gear and fishing techniques and in cooperation with

disentanglements. NMFS recognizes that there are no guarantees that the

Plan will reach its goals and that the success of the Plan will only be

determined in retrospect, but it believes that the cooperation of the

fishing community is essential to whatever actions are taken to reduce

bycatch. Current research efforts are aimed at developing fishing

practices and gear to protect whales that are feasible and, in some

cases, can improve either fishing effectiveness or cost effectiveness.

Comment 82: NMFS should change its procedures for making changes to

the regulations affecting the Cape Cod Bay critical habitat so as to

keep in line with the regulations of the Commonwealth of Massachusetts.

Response: The regulations in this final rule are intended to be

identical to the current regulations of the Commonwealth of

Massachusetts regarding fishing in Cape Cod Bay critical habitat,

except that NMFS cannot implement the Commonwealth's provisions to open

the area early without going through a more formal rule making process.

Comment 83: NMFS and the New England Fishery Management Council

should discuss the procedure for reviewing and testing gillnet gear

modifications discussed in Framework 23 to the Northeast Multispecies

Fishery Management Plan.

Response: NMFS agrees and will seek such a discussion.

Comments Regarding Exempted Waters

Comment 84: Several commenters felt that the boundary lines for

exempted waters in the Gulf of Maine were confusing, especially as most

coastal lobstermen in Maine set their gear on both sides of the

exemption line. Some felt that NMFS should exempt all Maine state

waters from the ALWTRP.

Response: Because right whales are known to move through Maine

state waters, NMFS does not believe it would be prudent to exempt all

state waters from the ALWTRP. Instead, to avoid the confusion caused by

the exemption lines in the interim final rule, NMFS will exempt only

the area designated in the proposed rule, i.e., waters landward of the

first bridge. All other waters in the Gulf of Maine (including New

Hampshire and Massachusetts State waters) are subject to the

regulations in this final rule. NMFS notes that the gear marking

requirement in the interim final rule no longer applies to Maine or New

Hampshire State waters, and much of Massachusetts State waters is also

exempt from gear marking.

Comment 85: The State of Rhode Island believed that the Sakonnet

River and some coastal ponds were inadvertently omitted from the list

of exempted areas.

Response: NMFS agrees. NMFS is not aware of any right whale

sightings in these areas and, therefore, exempts them from the ALWTRP

in this final rule.

Comment 86: One commenter believed that there was no justification

for requiring any gear requirements in Rhode Island State waters, since

right whale sightings are so rare there.

Response: Right whales occur in Rhode Island State waters from time

to time, and therefore, the regulations in this final rule will apply

to Rhode Island State waters (with limited exceptions). In 1998, one

right whale was seen within 50 yards (45.7 m) of Watch Hill, RI, and 23

right whales were seen in one day east of Block Island off the mouth of

Narragansett Bay.

Comments Regarding Other Aspects of the ALWTRP

Comment 87: The definition of ``lobster trap'' is too broad and

could be construed to include black sea bass traps and even trawl gear.

Response: The definition in this final rule has been changed to

clarify that it is intended to restrict only trap or pot-like gear,

including black sea bass traps and scup pots, because they are so

similar to lobster traps in the way they are set that it seems likely

that large whales would have the same entanglement problems with this

kind of gear.

Comment 88: Several persons felt that the prohibition on wet

storage is unenforceable. At least one person believed that NMFS should

require that gear that is not being actively fished be

[[Page 7549]]

removed from the water. While this requirement may be difficult to

enforce, it has a greater potential for reducing entanglement risk to

whales than simply requiring that gear be hauled at least every 30

days.

Response: NMFS recognizes that the prohibition on wet storage is

difficult to enforce. It intends to seek the advice of the TRT on

better ways to accomplish the purpose of this provision, which is to

minimize the risk of entanglement in gear that is not actively being

fished.

Comment 89: One commenter asked for clarification of whether the

30-day ``inspection'' requirement meant that gear had to be hauled back

to land every 30 days to be inspected.

Response: Gear must be hauled at sea by its owner or designee at

least once every 30 days. It does not need to be brought back to land

every 30 days.

Comment 90: The prohibition on ``wet storage'' offers no risk

reduction, because it only requires that a fisherman haul his gear once

every 30 days. The gear does not need to be brought to land and can be

left unbaited in the water.

Response: The intent of this provision was to reduce the practice

of ``wet storage'' of inactive gear. The requirement that gear be

hauled at least once every 30 days may not be the best way to achieve

this. NMFS will ask the TRT to develop a better system for reducing

entanglements in gear that is not being actively fished.

Comment 91: NMFS was asked to clarify the requirement that gear be

set in such a way as to prevent line from floating at the surface at

any time. One commenter pointed out that there will be line floating at

the surface at some time during all normal lobster or gillnet fishing

operations.

Response: The intent of this provision is that there should be no

line floating at the surface when gear is not being hauled. NMFS

understands that when gear is being set or hauled there will be time

when some line floats at the surface. This is acceptable.

Comment 92: The prohibition on floating line at the surface will

not result in any meaningful risk reduction, as current practice

results in line that does not usually float at the surface.

Response: Not all fishermen set their gear so that there is no line

floating at the surface, although doing so is considered to be the

current best fishing practice. NMFS believes that this requirement will

reduce the risk of entanglement, although the degree of risk reduction

cannot be quantified.

Comment 93: There was support for the requirement that gear be set

with no floating line at the surface, even though it might not result

in any meaningful risk reduction.

Response: See response to Comment 92.

Comment 94: NMFS should develop an Early Warning System to alert

fishermen to the presence of right whales in the high risk areas.

Response: In 1997, NMFS established a right whale alert system

operating in and around Cape Cod Bay and Great South Channel critical

habitats that informs any interested party of all reliable reports it

receives of right whale sightings in the northeast. A similar program

has been operating in the southeast U.S. for a number of years. Aerial

surveys are flown every day that weather permits during the times when

critical habitats are closed to fishing gear. All information is

disseminated to a fax network, is available through a ``fax on demand''

system, and is posted on several web sites on the internet. The primary

purpose of this alert system is to lower the risk of ship strikes, but

the fishing community can avail itself of the information as well.

NMFS will ask the TRT to review the adequacy of this system.

Comment 95: NMFS must make a substantial financial commitment to

improve monitoring the movements of large whales, as well as studying

changes in the distribution of fixed gear.

Response: NMFS spent $1,000,000 in FY98 on right whale research and

management along the U.S. east coast. NMFS expects the financial

commitment to remain the same or to increase in FY99.

Comments on Other Matters

Comment 96: Several commenters expressed concern about the effects

of ship strikes on the right whale population.

Response: NMFS is also concerned about the effects of ship strikes

on right whales, although it cannot address these concerns under this

Take Reduction Plan, which is limited under the MMPA to addressing

interactions with commercial fishing. Several steps are being taken to

address the ship strike problem in other ways. For example, the U.S.

Government proposed and the International Maritime Organization (IMO)

agreed that ships entering the Great South Channel call the Coast

Guard, which can alert the ship when right whales are in the channel

and can inform the ship of the general dangers of ships to right

whales. The IMO approved this proposal in December, 1998.

Implementation is scheduled to begin by July, 1999.

NMFS conducted aerial surveys to study the distribution of whales

and ships during 1998. During these surveys, ships in the vicinity of

right whales are contacted and informed of the importance of avoiding

the whales. In addition, the right whale information in the Coast

Pilots is being updated. Revisions to Coast Pilots 1 and 2 were

published in May and June, 1998 (respectively); revisions to Coast

Pilot 3 is scheduled to be published October, 1999 and to Coast Pilot 4

in June, 1999. Nearly all relevant navigation charts have been revised

and updated with information on the 500-yard (457 m) approach rule and

right whale critical habitat.

NMFS is also trying to develop cooperative agreements with

individual shipping companies, both U.S. and foreign flagged, that

operate routinely through right whale habitats.

Comment 97: Two commenters noted that NMFS had not commented on an

analysis prepared by the State of Maine of the economic impact of the

proposed rule.

Response: The analysis prepared by the State of Maine pertained to

the proposed rule. The interim final rule was so different from the

proposed rule that it was believed that a detailed response to the

State's analysis was not necessary in the interim final rule. NMFS

agreed in concept with the State of Maine's conclusion that the

proposed regulations would have imposed a substantial economic impact

on the Maine lobster fishery, although it disagreed with some of the

specific assertions of the authors of the paper. NMFS has forwarded

more detailed comments on the State of Maine's analysis to the State.

Comment 98: A suggestion was made that NMFS monitor the mid-water

trawl fishery to determine its potential for takes of marine mammals.

Response: NMFS has placed some observers on mid-water trawl

vessels, but it does not yet have information suggesting that this is

an urgent or high priority situation for large whales. No large whales

have been seen by observers to be entangled by this fishery.

Comment 99: One commenter noted that NMFS had said that it would

continue to assess the appropriateness of the Category III fishery

classification for the tuna hand line/hook-and-line fishery, groundfish

longline/hook-and-line fishery, surface gillnet fishery for small

pelagic fishes, trap fisheries other than lobster trap, finfish staked

trap fisheries, and weir/stop seine fisheries. This commenter urged

NMFS to change the classification of these fisheries to Category II in

order to more effectively monitor them. The commenter also

[[Page 7550]]

recommended that NMFS require these fisheries to mark their gear.

Response: NMFS reviews the list of fisheries every year and seeks

comments and information on the list through a Federal Register

notification. So far, there has not been enough information submitted

to justify classifying the preceding fisheries in Category II. NMFS

intends to see if the gear marking scheme in this final rule provides

useful information before broadening the scope of the gear marking

requirement.

Comment 100: One commenter believed that NMFS could not issue an

incidental take statement for right, humpback and fin whales, and felt,

therefore, that NMFS does not have the authority to exempt fishermen

from liability for illegal takes of listed species under the ESA. This

commenter urged NMFS to inform fishermen that they should report

entangled whales and that such a report would not result in prosecution

if the whale is swimming with the entangled gear.

Response: NMFS agrees that it cannot exempt fishermen from

liability for illegal takes of species listed under the ESA. It does,

however, have discretion as to which cases it will prosecute. Unless

there is evidence of willful harm to the whale, it is unlikely that

NMFS would prosecute anyone calling in an entangled whale.

Comment 101: One commenter supported NMFS's plan to notify all

Atlantic fisheries permit holders of the importance of bringing gear

back to shore to be discarded.

Response: This has been done in the Northeast Region, where this

problem is of greatest concern.

Comment 102: One commenter supported NMFS's decision to postpone

further consideration of market incentives as a way to reduce bycatch.

Response: NMFS will refer the matter of market incentives to the

TRT for further discussion.

Comment 103: NMFS should conduct a Regulatory Flexibility Analysis

(RFA) of the ALWTRP regulations.

Response: NMFS conducted a regulatory impact review of the

provisions of the interim final rule, describing the impact it was

expected to have on small entities. Based on that review, NMFS

certified that a Final Regulatory Flexibility Analysis (FRFA) was not

necessary. The thresholds for Regulatory Flexibility Analysis

determinations are: 5 percent loss of revenue for 20 percent of the

participants; 5 percent increase in operations costs for 20 percent of

the participants; and two percent of participants cease operations.

None of these thresholds were met by the interim final rule.

Although no information was provided that called into question the

conclusions of the Regulatory Impact Review for the interim final rule,

NMFS conducted a FRFA for this rule. The FRFA concluded that the final

rule of the ALWTRP would not constitute a significant regulatory

action. In this final rule, the overall costs of compliance for the

affected fisheries are expected to be less than for the interim final

rule, because the gear marking requirement will apply to substantially

fewer vessels.

The regulations in this final rule were also evaluated for purposes

of E.O. 12866. It was determined that they would not have an annual

impact on the economy of $100M or more and would not adversely affect

the productivity, environment, public health or safety, or state,

local, or tribal governments or communities in the long run. The final

rule does not interfere with an action planned by another agency. It

does not raise any novel legal and policy issues because it is

implementing the provisions of the 1994 Amendments to the MMPA and the

regulations already set in place to promulgate that statute.

Classification

An environmental assessment (EA) describing the impacts to the

human environment that would result from the implementation of the

ALWTRP was prepared for the interim final rule. The conclusion of that

EA was that the action would pose no significant impact. There were no

comments received disputing this conclusion. Because this final rule is

substantially the same as the interim final rule, no further EA has

been carried out.

NMFS prepared an Initial Regulatory Flexibility Analysis (IFRA)

that described the impact the proposed rule was expected to have on

small entities. The conclusion of this IFRA was that the economic

impact on small entities was likely to be significant. This was due to

the gear modifications which would have been required by the proposed

rule. The interim final rule was substantially different than the

proposed rule, which mitigated most of the economic consequences of the

proposed rule. NMFS prepared a Regulatory Impact Review for the interim

final rule. Based on that review, NMFS certified that the action would

not have a significant economic impact on a substantial number of small

entities, nonetheless, a Final Regulatory Flexibility Analysis (FRFA)

was prepared for the final rule.

NMFS received only one public comment relating to the certification

of the interim final rule. The commenter questioned the conclusion that

the interim final rule would not have a significant impact on small

businesses and asked that NMFS prepare a Regulatory Flexibility

Analysis. No economic information was provided disputing the

conclusions of the Regulatory Impact Review for the interim final rule.

The final rule makes only minor changes to the interim final rule.

However, to ensure that this final rule's economic impacts on small

entities are fully considered, NMFS has prepared a FRFA. A copy of this

analysis is available from NMFS (see ADDRESSES).

The final rule is expected to have an economic impact on

approximately 1100 lobster fishing operations and approximately 160

gillnet vessels (substantially fewer than the interim final rule).

Based on 1996 logbook data, 8 gillnet vessels will have their revenue

reduced by more than 5 percent. Approximately 72 lobster fishing

operations may see their costs increase more than 10 percent. It is

unlikely that 2 percent of participants will cease operations as a

result of this action. The objectives and need for this action are

described above in the preamble. In this final rule, the gear marking

requirement will apply to substantially fewer vessels, thereby

mitigating the overall economic burden of the interim final rule.

This final rule does not constitute a significant regulatory action

under Executive Order 12866. (1) The action will not have an annual

effect on the economy of more than $100 million. (2) The action will

not adversely affect in a material way the economy, productivity,

competition and jobs. (3) The action will not affect competition, jobs,

the environment, public health or safety, or state, local or tribal

governments and communities. (4) The action will not create an

inconsistency or otherwise interfere with an action taken or planned by

another agency. No other agency has indicated that it plans an action

that will affect these fisheries. (5) The action will not materially

alter the budgetary impact of entitlement, grants, user fees, or loan

programs or the rights and obligations of their recipients. (6) The

action does not raise novel legal or policy issues.

NMFS determined that this action is consistent to the maximum

extent practicable with the approved coastal management program of the

U.S. Atlantic coastal states. This determination was submitted for

review by the responsible state agencies under section 307 of the

Coastal Zone

[[Page 7551]]

Management Act. The NMFS letter to the states indicated that responses

regarding concurrence were due within 45 days of receipt of the letter

and that lack of a response would be an assumption of concurrence with

the consistency determination. No state disagreed with our conclusion

that the ALWTRP is consistent with the approved coastal management

program for that state.

This action contains two collection-of-information requirements and

therefore is subject to the provisions of the Paperwork Reduction Act:

(1) Persons setting lobster or gillnet gear in some areas of the

Atlantic Ocean would be required to paint or otherwise mark their gear

with two color codes, one color designating the type of gear, the other

designating the area where the gear is set. These marking requirements

apply in right whale critical habitats and in areas described below as

the southeast Observer Area and as the SB/JL Restricted Area. The goal

of this collection of information is to obtain more information on

where large whales are being entangled and on what kind of gear is

responsible for the entanglement. (2) From November 15 to March 31,

persons netting for sharks in Atlantic waters off Florida and Georgia

would be required to call NMFS 48 hours prior to departure to arrange

for an observer. The purpose of this collection of information is to

allow NMFS to coordinate fisheries observer coverage of the fishery.

The affected public includes business and other for-profit

organizations (persons participating in the lobster and gillnet

fisheries in specified areas). The gear marking requirements are

expected to affect 1100 lobster fishermen and 160 gillnet fishermen.

The call-in requirement in the southeast U.S. Observer Area is expected

to affect 30 shark gillnet fishermen.

In a Federal Register document on June 5, 1998 (63 FR 30720), the

public was asked to comment on the estimates of time and cost of

compliance with the gear marking and call-in requirements. No comments

were received during the comment period, which closed on August 4,

1998. The OMB has approved the gear marking requirement (OMB Control

Number: 0648-0364). The call-in requirement is part of a general

requirement for the shark industry and was approved earlier by OMB (OMB

Control Number: 0648-0205). Notwithstanding any other provision of law,

no person is required to respond to nor shall any person be subject to

a penalty for failure to comply with a collection of information

subject to the requirements of the Paperwork Reduction Act unless that

collection of information displays a currently valid OMB control

number.

The ALWTRP incorporates the reasonable and prudent alternatives of

the three ESA Section 7 Biological Opinions on commercial fisheries for

lobster, multispecies, and sharks, which remove the threat of jeopardy

to the northern right whale. Furthermore, the ALWTRP incorporates other

measures to reduce impacts to the other species of endangered large

whales. In addition, a Section 7 consultation was conducted on the

interim final rule implementing the ALWTRP. This consultation concluded

that operation of the fisheries under the elements of this plan may

affect but will not jeopardize the continued existence of any listed

species under NMFS jurisdiction. This final rule incorporates few

changes to the scope of the action considered in the biological opinion

(July 15, 1997) prepared for the interim final rule, and a

determination was made that no further consultation under Section 7 was

necessary at this time. Therefore, all agency responsibilities under

the ESA have been addressed.

Several marine mammal species, other than those listed as

endangered or threatened under the ESA, are known to become entangled

in gillnet and lobster gear. However, NMFS has determined that this

action does not exacerbate the existing problem. Therefore, this action

will not have an adverse impact on the marine mammals.

This rule does not contain policies with federalism implications

sufficient to warrant preparation of a federalism assessment under

Executive Order 12612.

NMFS has complied with the Administrative Procedures Act through

publishing a proposed rule with a request for written comments, and by

holding 12 public hearings in the action area of this rule. Because of

substantial changes to the proposed rule based on public comments and

the Gear Advisory Group, NMFS then published an interim final rule to

allow for further comment on the plan. This final rule addresses the

comments received on the interim final rule.

References

Barlow, J. et al. 1995. U.S. Marine Mammal Stock Assessments:

Guidelines for preparations, background, and a summary of the 1995

assessments. NOAA Technical Memorandum NMFS-OPR-6. U.S. Department of

Commerce, Washington, DC, p. 73.

Knowlton, A.R. et al. 1994. Reproduction in North Atlantic right

whales (Eubalaena glacialis). Can. J. Zool. 72:1287-1305.

Kraus, S.D. 1990. Rates and potential causes of mortality in North

Atlantic right whales (Eubalaena glacialis). Mar. Mamm. Sci. 6(4):278-

291.

Smith, T.D. et al. 1998. An ocean-basin-wide mark-recapture study

of the North Atlantic humpback whale (Megaptera novaeangliae). Mar.

Mamm. Sci. (in press).

Waring, G.T. et al. 1997. U.S. Atlantic and Gulf of Mexico Marine

Mammal Stock Assessments--1996. NOAA Technical Memorandum NMFS-NE-

114. U.S. Department of Commerce, Northeast Fisheries Science

Center, Woods Hole, MA. p. 250.

Waring, G.T. et al. in prep. U.S. Atlantic and Gulf of Mexico Marine

Mammal Stock Assessments--1998. Submitted for public comment.

Team Report. 1997. Draft Atlantic Large Whale Take Reduction Report.

Report prepared by the Atlantic Large Whale Take Reduction Team and

submitted to the National Marine Fisheries Service February 4, 1997.

p. 79.

List of Subjects in 50 CFR Part 229

Administrative practice and procedure, Confidential business

information, Fisheries, Marine mammals, Reporting and record-keeping

requirements.

Dated: February 8, 1999.

Gary C. Matlock,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

to read as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE

MAMMAL PROTECTION ACT OF 1972

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

follows:

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

2. In Sec. 229.2, definitions of ``Sink gillnet'', ``Lobster pot'',

and ``Lobster pot trawl'' are removed. Definitions of ``Anchored

gillnet'', ``Driftnet, drift gillnet or drift entanglement gear'',

``Gillnet'', ``Groundline'', ``Offshore lobster waters'', ``Strikenet

or to fish with strikenet gear'', ``Tended gear or tend'', and ``Weak

Link'' are revised, and the definitions of ``Lobster trap'', ``Lobster

trap trawl'', ``Night'', ``Shark gillnetting'', ``Sink gillnet or stab

net'' and ``To strikenet for sharks'' are added in alphabetical order

to read as follows:

Sec. 229.2 Definitions.

* * * * *

Anchored gillnet means any gillnet gear, including a sink gillnet

or stab net,

[[Page 7552]]

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

or weighted to the bottom of the sea. Also called a set gillnet.

* * * * *

Driftnet, drift gillnet, or drift entanglement gear means a gillnet

or gillnets that is/are unattached to the ocean bottom and not

anchored, secured or weighted to the bottom, regardless of whether

attached to a vessel.

* * * * *

Gillnet means fishing gear consisting of a wall of webbing (meshes)

or nets, designed or configured so that the webbing (meshes) or nets

are placed in the water column, usually held approximately vertically,

and are designed to capture fish by entanglement, gilling, or wedging.

The term ``gillnet'' includes gillnets of all types, including but not

limited to sink gillnets, other anchored gillnets (e.g. stab and set

nets), and drift gillnets. Gillnets may or may not be attached to a

vessel.

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

connecting lobster traps in a lobster trap trawl, and, with reference

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

an anchor or buoy line.

* * * * *

Lobster trap means any trap, pot or other similar type of enclosure

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

catching lobsters. This definition includes but is not limited to

lobster pots, black sea bass pots and scup pots.

Lobster trap trawl means two or more lobster traps attached to a

single groundline.

* * * * *

Night means any time between one half hour before sunset and one

half hour after sunrise.

* * * * *

Offshore lobster waters comprises entirely federal waters as

defined by the area bounded by straight lines connecting the following

points, in the order stated, except for waters in the Great South

Channel critical right whale habitat:

------------------------------------------------------------------------

Longitude (

Point Latitude ( deg.N) deg.W)

------------------------------------------------------------------------

A................................ 43 deg. 58' 67 deg. 22'

B................................ 43 deg. 41' 68 deg. 00'

C................................ 43 deg. 12.5' 69 deg. 00'

D................................ 42 deg. 49' 69 deg. 40'

E................................ 42 deg. 15.5' 69 deg. 40'

F................................ 42 deg. 10' 69 deg. 56'

K................................ 41 deg. 10' 69 deg. 06.5'

N................................ 40 deg. 45.5' 71 deg. 34'

M................................ 40 deg. 27.5' 72 deg. 14'

U................................ 40 deg. 12.5' 72 deg. 48.5'

V................................ 39 deg. 50' 73 deg. 01'

X................................ 38 deg. 39.5' 73 deg. 40'

Y................................ 38 deg. 12' 73 deg. 55'

Z................................ 37 deg. 12' 74 deg. 44'

ZA............................... 36 deg. 33' 74 deg. 47'

------------------------------------------------------------------------

From point ``ZA'' east to the EEZ boundary and thence along the seaward

EEZ boundary to point ``A''.

* * * * *

Shark gillnetting means to fish a gillnet in waters south of the

South Carolina/Georgia border with webbing of 5 inches or greater

stretched mesh.

Sink gillnet or stab net means any gillnet, anchored or otherwise,

that is designed to be, or is fished on or near the bottom in the lower

third of the water column.

Strikenet or to fish with strikenet gear means a gillnet that is

designed so that, when it is deployed, it encircles or encloses an area

of water either with the net or by utilizing the shoreline to complete

encirclement, or to fish with such a net and method.

* * * * *

Tended gear or tend means fishing gear that is physically attached

to a vessel in a way that is capable of harvesting fish, or to fish

with gear attached to the vessel.

To strikenet for sharks means to fish with strikenet gear in waters

south of the South Carolina/Georgia border with webbing of 5 inches or

greater stretched mesh.

* * * * *

Weak link means a breakable component of gear that will part when

subject to a certain tension load.

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

follows:

Sec. 229.3 Prohibitions.

* * * * *

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

and for the times specified in Sec. 229.32(c)(3) through (c)(9) unless

the lobster trap gear complies with the closures, marking requirements,

modifications, and restrictions specified in Sec. 229.32(c)(1) through

(c)(10).

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

areas and for the times specified in Sec. 229.32(d)(2) through (d)(7)

unless that gillnet gear complies with the closures, marking

requirements, modifications, and restrictions specified in

Sec. 229.32(d)(1) through (d)(8).

(i) It is prohibited to fish with drift gillnets in the areas and

for the times specified in Sec. 229.32(e)(1) unless the drift gillnet

gear complies with the restrictions specified in Sec. 229.32(e)(1).

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

and for the times specified in Sec. 229.32(f)(1) and (3) unless the

gear meets the marking requirements specified in Sec. 229.32(f)(2) and

complies with the restrictions and requirements specified in

229.32(f)(1) and (f)(3).

* * * * *

4. Section 229.32, in subpart C, is revised to read as follows:

Sec. 229.32 Atlantic large whale take reduction plan regulations.

(a)(1) Regulated waters. The regulations in this section apply to

all U.S. waters in the Atlantic except for the areas exempted in

paragraph (a)(2) of this section.

(2) Exempted waters. The regulations in this section do not apply

to waters landward of the first bridge over any embayment, harbor, or

inlet and to waters landward of the following lines:

Rhode Island

41 deg. 27.99' N 71 deg. 11.75' W TO 41 deg. 28.49' N 71 deg. 14.63' W

(Sakonnet River)

41 deg. 26.96' N 71 deg. 21.34' W TO 41 deg. 26.96' N 71 deg. 25.92' W

(Narragansett Bay)

41 deg. 22.41' N 71 deg. 30.80' W TO 41 deg. 22.41' N 71 deg. 30.85' W

(Pt. Judith Pond Inlet)

41 deg. 21.31' N 71 deg. 38.30' W TO 41 deg. 21.30' N 71 deg. 38.33' W

(Ninigret Pond Inlet)

41 deg. 19.90' N 71 deg. 43.08' W TO 41 deg. 19.90' N 71 deg. 43.10' W

(Quonochontaug Pond Inlet)

41 deg. 19.66' N 71 deg. 45.75' W TO 41 deg. 19.66' N 71 deg. 45.78' W

(Weekapaug Pond Inlet)

New York

West of the line from the Northern fork of the eastern end of Long

Island, NY (Orient Pt.) to Plum Island to Fisher's Island to Watch

Hill, RI. (Long Island Sound)

41 deg. 11.40' N 72 deg. 09.70' W TO 41 deg. 04.50' N 71 deg. 51.60' W

(Gardiners Bay)

40 deg. 50.30' N 72 deg. 28.50' W TO 40 deg. 50.36' N 72 deg. 28.67' W

(Shinnecock Bay Inlet)

40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 45.30' W

(Moriches Bay Inlet)

40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 18.56' W

(Fire Island Inlet)

40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 35.22' W

(Jones Inlet)

[[Page 7553]]

New Jersey

39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg. 06.20' W

(Barnegat Inlet)

39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg. 19.75' W

(Beach Haven to Brigantine Inlet)

38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg. 51.90' W

(Cape May Inlet)

39 deg. 16.70' N 75 deg. 14.60' W TO 39 deg. 11.25' N 75 deg. 23.90' W

(Delaware Bay)

Maryland/Virginia

38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 05.25' W

(Ocean City Inlet)

37 deg. 52.50' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' W

(Chincoteague to Ship Shoal Inlet)

37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 49.60' W

(Little Inlet)

37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.50' W

(Smith Island Inlet)

North Carolina to Florida

All marine and tidal waters landward of the 72 COLREGS demarcation

line (International Regulations for Preventing Collisions at Sea,

1972), as depicted or noted on nautical charts published by the

National Oceanic and Atmospheric Administration (Coast Charts 1:80,000

scale), and as described in 33 CFR part 80.

(b) Gear marking provisions--(1)(i) Specified gear. Specified

fishing gear consists of lobster trap gear and gillnet gear set in

specified areas.

(ii) Specified areas. Specified areas are: Southeast U.S. Observer

Area, Great South Channel Restricted Areas (including the Great South

Channel Sliver Restricted Area), Cape Cod Bay Restricted Area, and the

Stellwagen Bank/Jeffreys Ledge Restricted Area.

(iii) Requirement. From January 1, 1999, and as otherwise required

in paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii),

(d)(3)(ii), (d)(4)(ii), (d)(5)(ii), and (f)(2) of this section, any

person who owns or fishes with specified fishing gear in specified

areas must mark that gear as specified in paragraphs (b)(2) and (b)(3)

of this section, unless otherwise required by the Assistant

Administrator under paragraph (g) of this section.

(2) Color code. Specified gear must be marked with the appropriate

colors to designate gear-types and areas as follows:

Lobster trap gear--red

Gillnet gear--green

Southeast U.S. Observer Area--blue

Great South Channel Restricted Areas--yellow

Cape Cod Bay Restricted Area--orange

Stellwagen Bank/Jeffreys Ledge Area--black

(3) Markings. All specified gear in specified areas must be marked

with two color codes, one designating the gear type, the other

indicating the area where the gear is set. Each color of the color

codes must be permanently marked on or along the line or lines

specified under paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii),

(d)(2)(ii), (d)(3)(ii), (d)(4)(ii), (d)(5)(ii), and (f)(2) of this

section. Each color mark of the color codes must be clearly visible

when the gear is hauled or removed from the water. Each mark must be at

least 4 inches (10.2 cm) long. The two color marks must be placed

within 6 inches (15.2 cm) of each other. If the color of the rope is

the same as or similar to a color code, a white mark may be substituted

for that color code. (For example, buoy lines of gillnet gear set in

the Great South Channel Sliver Restricted Area must have a yellow mark

and a green mark, each at least 4 inches (10.2 cm) long, with the

yellow and green marks placed within 6 inches (15.2 cm) of each other.

If the buoy line is yellow, the gear must have white and green marks.)

In marking or affixing the color code, the line may be dyed, painted,

or marked with thin colored whipping line, thin colored plastic or heat

shrink tubing, or other material, or a thin line may be woven into or

through the line, or the line may be marked as approved in writing by

the Assistant Administrator.

(4) Changes to requirements. If the Assistant Administrator revises

the gear marking requirements under paragraph (g) of this section, the

gear must be marked in compliance with those requirements.

(c) Restrictions applicable to lobster trap gear in regulated

waters--(1) No line floating at the surface. No person may fish with

lobster trap gear that has any portion of the buoy line floating at the

surface at any time, except that, if more than one buoy is attached to

a single buoy line or if a high flyer and a buoy are used together on a

single buoy line, floating line may be used between these objects.

(2) No wet storage of gear. Lobster traps must be hauled out of the

water at least once in 30 days.

(3) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay

restricted area consists of the Cape Cod Bay Critical Habitat area

specified under 50 CFR 216.13(b), unless the Assistant Administrator

changes that area in accordance with paragraph (g) of this section.

(ii) Gear marking requirements. No person may fish with lobster

trap gear in the Cape Cod Bay Restricted Area unless that gear is

marked according to the gear marking code specified under paragraph (b)

of this section. All buoy lines used in connection with lobster trap

gear must be marked within 2 ft (0.6 m) of the top of the buoy line (or

2 ft (0.6 m) below a weak link) and midway along the length of the buoy

line.

(iii) Winter restricted period. The winter restricted period for

this area is from January 1 through May 15 of each year. During the

winter restricted period, no person may fish with lobster trap gear in

the Cape Cod Bay Restricted Area unless that person's gear complies

with the following requirements:

(A) Weak links--All buoy lines are attached to the buoy with a weak

link. The breaking strength of this weak link must be no more than 500

lb (226.7 kg).

(B) Multiple trap trawls--All traps are set in either a two-trap

string or in a trawl of four or more traps. Single traps and three trap

trawls are not allowed. A two-trap string must have only one buoy line.

(C) Sinking buoy lines--All buoy lines are comprised of sinking

line except the bottom portion of the line, which may be a section of

floating line not to exceed one-third the overall length of the buoy

line.

(D) Sinking ground line--All ground lines are made entirely of

sinking line.

(iv) Other restricted period. From May 16 through December 31 of

each year, no person may fish with lobster trap gear in the Cape Cod

Bay Restricted Area unless that person's gear complies with at least

two of the characteristics of the Lobster Take Reduction Technology

List in paragraph (c)(10) of this section. The Assistant Administrator

may revise this restricted period in accordance with paragraph (g) of

this section.

(4) Great South Channel Restricted Lobster Area--(i) Area. The

Great South Channel restricted area consists of the Great South Channel

Critical Habitat area specified under 50 CFR 216.13(a) unless the

Assistant Administrator changes that area in accordance with paragraph

(g) of this section.

(ii) Gear marking requirements. No person may fish with lobster

trap gear in the Great South Channel Restricted Area unless that gear

is marked according to the gear marking code specified under paragraph

(b) of this section. All buoy lines used in connection with lobster

trap gear must be marked within 2 ft (0.6 m) of the top

[[Page 7554]]

of the buoy line (or 2 ft (0.6 m) below a weak link) and midway along

the length of the buoy line.

(iii) Spring closed period. The spring closed period for this area

is from April 1 through June 30 of each year unless the Assistant

Administrator revises the closed period in accordance with paragraph

(g) of this section. During the spring closed period, no person may

fish with or set lobster trap gear in the Great South Channel

restricted lobster area unless the Assistant Administrator specifies

gear modifications or alternative fishing practices in accordance with

paragraph (g) of this section and the gear or practices comply with

those specifications.

(iv) Other restricted period. From July 1 through March 31 no

person may fish with lobster trap gear in the Great South Channel

Restricted Lobster Area unless that person's gear complies with at

least two of the characteristics of the Lobster Take Reduction

Technology List in paragraph (c)(10) of this section. The Assistant

Administrator may revise this restricted period in accordance with

paragraph (g) of this section.

(5) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The

Stellwagen Bank/Jeffreys Ledge restricted area consists of all Federal

waters of the Gulf of Maine that lie to the south of the 43 deg.15' N

lat. line and west of the 70 deg. W long. line, except for right whale

critical habitat, unless the Assistant Administrator changes that area

in accordance with paragraph (g) of this section.

(ii) Gear marking requirements. No person may fish with lobster

trap gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless

that gear is marked according to the gear marking code specified under

paragraph (b) of this section. All buoy lines used in connection with

lobster trap gear must be marked within 2 ft (0.6 m) of the top of the

buoy line (or 2 ft (0.6 m) below a weak link) and midway along the

length of the buoy line.

(iii) Gear requirements. No person may fish with lobster trap gear

in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that

person's gear complies with at least two of the characteristics of the

Lobster Take Reduction Technology List in paragraph (c)(10) of this

section. The Assistant Administrator may revise this requirement in

accordance with paragraph (g) of this section.

(6) Northern offshore lobster waters--(i) Area. The northern

offshore lobster waters area includes all offshore lobster waters (as

defined in Sec. 229.2) north of 41 deg.30 N lat., except for areas

included in the Great South Channel Critical Habitat.

(ii) Gear requirements. No person may fish with lobster trap gear

in the northern offshore lobster waters area unless that person's gear

complies with at least one of the characteristics of the Lobster Take

Reduction Technology List in paragraph (c)(10) of this section. The

Assistant Administrator may revise this requirement in accordance with

paragraph (g) of this section.

(7) Southern offshore lobster waters--(i) Area. The southern

offshore lobster waters area includes all offshore lobster waters (as

defined in Sec. 229.2) south of 41 deg.30 N lat., except for areas

included in the Great South Channel Critical Habitat.

(ii) Gear requirements. From December 1 through March 31, no person

may fish with lobster trap gear in the southern offshore lobster waters

area unless that person's gear complies with at least one of the

characteristics of the Lobster Take Reduction Technology List in

paragraph (c)(10) of this section. The Assistant Administrator may

revise this requirement in accordance with paragraph (g) of this

section.

(8) Northern inshore lobster waters--(i) Area. Northern inshore

lobster waters consist of all inshore lobster waters (as defined in

Sec. 229.2) north of 41 deg.30' N lat., except the Cape Cod Bay

restricted area, Great South Channel restricted area and the Stellwagen

Bank/Jeffreys Ledge restricted area.

(ii) Gear Requirements. No person may fish with lobster trap gear

in the northern inshore lobster waters area unless that person's gear

complies with at least one of the characteristics of the Lobster Take

Reduction Technology List in paragraph (c)(10) of this section. The

Assistant Administrator may revise this requirement in accordance with

paragraph (g) of this section.

(9) Southern inshore lobster waters--(i) Area. The southern inshore

lobster waters consist of all inshore lobster waters (as defined in

Sec. 229.2) south of 41 deg.30' N lat., except the Great South Channel

restricted area.

(ii) Gear requirements. From December 1 through March 31, no person

may fish with lobster trap gear in the southern inshore lobster waters

area unless that person's gear complies with at least one of the

characteristics of the Lobster Take Reduction Technology List in

paragraph (c)(10) of this section. The Assistant Administrator may

revise this requirement in accordance with paragraph (g) of this

section.

(10) Lobster Take Reduction Technology List. The following gear

characteristics comprise the Lobster Take Reduction Technology List:

(i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.

(ii) All buoys are attached to the buoy line with a weak link

having a maximum breaking strength of up to 1100 lb (498.8 kg). Weak

links may include swivels, plastic weak links, rope of appropriate

diameter, hog rings, rope stapled to a buoy stick, or other materials

or devices approved in writing by the Assistant Administrator.

(iii) For gear set in offshore lobster areas only, all buoys are

attached to the buoy line with a weak link having a maximum breaking

strength of up to 3780 lb (1714.3 kg).

(iv) For gear set in offshore lobster areas only, all buoys are

attached to the buoy line by a section of rope no more than three

fourths the diameter of the buoy line.

(v) All buoy lines are composed entirely of sinking line.

(vi) All ground lines are made of sinking line.

(d) Restrictions applicable to anchored gillnet gear--(1) No line

floating at the surface. No person may fish with anchored gillnet gear

that has any portion of the buoy line floating at the surface at any

time, except that, if more than one buoy is attached to a single buoy

line or if a high flyer and a buoy are used together on a single buoy

line, floating line may be used between these objects.

(2) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay

Restricted Area consists of the Cape Cod Bay Critical Habitat area

specified under 50 CFR 216.13(b), unless the Assistant Administrator

changes that area under paragraph (g) of this section.

(ii) Gear marking requirements. No person may fish with anchored

gillnet gear in the Cape Cod Bay Restricted Area unless that gear is

marked according to the gear marking code specified under paragraph (b)

of this section. All buoy lines used in connection with anchored

gillnets must be marked within 2 ft (0.6 m) of the top of the buoy line

(or 2 ft (0.6 m) below a weak link) and midway along the length of the

buoy line.

(iii) Winter restricted period. The winter restricted period for

this area is from January 1 through May 15 of each year, unless the

Assistant Administrator revises the restricted period under paragraph

(g) of this section. During the winter restricted period, no person may

fish with anchored gillnet gear in the Cape Cod Bay Restricted Area

unless the Assistant Administrator specifies gear modifications or

alternative fishing practices under paragraph (g) of this section and

the gear or practices comply with those specifications. The Assistant

[[Page 7555]]

Administrator may waive this closure for the remaining portion of any

year through a notification in the Federal Register if NMFS determines

that right whales have left the critical habitat and are unlikely to

return for the remainder of the season.

(iv) Other restricted period. From May 16 through December 31 of

each year, no person may fish with anchored gillnet gear in the Cape

Cod Bay Restricted Area unless that person's gear complies with at

least two of the characteristics of the Gillnet Take Reduction

Technology List in paragraph (d)(8) of this section. The Assistant

Administrator may revise this restricted period in accordance with

paragraph (g) of this section.

(3) Great South Channel Restricted Gillnet Area--(i) Area. The

Great South Channel Restricted Gillnet Area consists of the area

bounded by lines connecting the following four points: 41 deg.02.2' N/

69 deg.02' W, 41 deg.43.5' N/69 deg.36.3' W, 42 deg.10' N/68 deg.31' W,

and 41 deg.38' N/68 deg.13' W, unless the Assistant Administrator

changes that area in accordance with paragraph (g) of this section.

This area includes the Great South Channel critical habitat area

specified under 50 CFR 216.13(a), except for the ``sliver area''

identified in paragraph (d)(4) of this section.

(ii) Gear marking requirements. No person may fish with anchored

gillnet gear in the Great South Channel Restricted Gillnet Area unless

that gear is marked according to the gear marking code specified under

paragraph (b) of this section. All buoy lines used in connection with

anchored gillnets must be marked within 2 ft (0.6 m) of the top of the

buoy line (or 2 ft (0.6 m) below a weak link) and midway along the

length of the buoy line.

(iii) Spring closed period. The spring closed period for this area

is from April 1 through June 30 of each year unless the Assistant

Administrator revises the closed period in accordance with paragraph

(g) of this section. During the spring closed period, no person may set

or fish with anchored gillnet gear in the Great South Channel

Restricted Gillnet Area unless the Assistant Administrator specifies

gear modifications or alternative fishing practices in accordance with

paragraph (g) of this section and the gear or practices comply with

those specifications.

(iv) Other restricted period. From July 1 through March 31 no

person may fish with anchored gillnet gear in the Great South Channel

Restricted Gillnet Area unless that person's gear complies with at

least two of the characteristics of the Gillnet Take Reduction

Technology List in paragraph (d)(8) of this section. The Assistant

Administrator may revise this restricted period in accordance with

paragraph (g) of this section.

(4) Great South Channel Sliver Restricted Area--(i) Area. The Great

South Channel Sliver Restricted Area consists of the area bounded by

lines connecting the following points: 41 deg.02.2' N/69 deg.02' W,

41 deg.43.5' N/69 deg.36.3' W, 41 deg.40' N/69 deg.45' W, and

41 deg.00' N/69 deg.05' W, unless the Assistant Administrator changes

that area in accordance with paragraph (g) of this section.

(ii) Gear marking requirements. No person may fish with anchored

gillnet gear in the Great South Channel Sliver Restricted Area unless

that gear is marked according to the gear marking code specified under

paragraph (b) of this section. All buoy lines used in connection with

anchored gillnets must be marked within 2 ft (0.6 m) of the top of the

buoy line (or 2 ft below a weak link) and midway along the length of

the buoy line.

(iii) Gear requirements. No person may fish with anchored gillnet

gear in the Great South Channel Sliver Restricted Area unless that

person's gear complies with at least two of the characteristics of the

Gillnet Take Reduction Technology List in paragraph (d)(8) of this

section. The Assistant Administrator may revise these requirements in

accordance with paragraph (g) of this section.

(5) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The

Stellwagen Bank/Jeffreys Ledge Restricted Area consists of all Federal

waters of the Gulf of Maine that lie to the south of the 43 deg.15' N

lat. line and west of the 70 deg. W long. line, except right whale

critical habitat, unless the Assistant Administrator changes that area

in accordance with paragraph (g) of this section.

(ii) Gear marking requirements. No person may fish with anchored

gillnet gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area

unless that gear is marked according to the gear marking code specified

under paragraph (b) of this section. All buoy lines used in connection

with anchored gillnets must be marked within 2 ft (0.6 m) of the top of

the buoy line (or 2 ft below a weak link) and midway along the length

of the buoy line.

(iii) Gear requirements. No person may fish with anchored gillnet

gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that

person's gear complies with at least two of the characteristics of the

Gillnet Take Reduction Technology List in paragraph (d)(8) of this

section. The Assistant Administrator may revise these requirements in

accordance with paragraph (g) of this section.

(6) Other Northeast Waters Area--(i) Area. The ``Other Northeast

Waters Area'' consists of all northeast waters (as defined in

Sec. 229.2) except for the Cape Cod Bay Restricted Area, the Great

South Channel Restricted Gillnet Area, Great South Channel Sliver

Restricted Area and the Stellwagen Bank/Jeffreys Ledge Restricted Area.

(ii) Gear requirements. No person may fish with anchored gillnet

gear in the Other Northeast Waters Area unless that person's gear

complies with at least one of the characteristics of the Gillnet Take

Reduction Technology List in paragraph (d)(8) of this section. The

Assistant Administrator may revise these requirements in accordance

with paragraph (g) of this section.

(7) Mid-Atlantic Coastal Waters Area--(i) Area. The mid-Atlantic

Coastal Waters Area is defined in Sec. 229.2.

(ii) Gear requirements. From D

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