Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16519

and biological circumstances and the

need to review the best scientific

information available during the

decision-making process, the comment

period is being reopened. Moreover, this

proposed listing of a population of

desert bighorn sheep must be consistent

with Service policy published on

February 7, 1996, regarding the

recognition of distinct vertebrate

population segments (61 FR 4722). This

policy requires that distinct population

segments be discrete from other

populations of the species, be

biologically and/or ecologically

significant to the species, and meet the

standards of a endangered or threatened

species under section 4(a) of the Act. In

this regard, the following recent articles

and reports contained in Service files,

including other non-cited information,

are available for public review:

Berger, J. 1990. Persistence of

different-sized populations: An

empirical assessment of rapid

extinctions. Conservation Biology 4:91–

98.

Bleich, V. C., J. D. Wehausen, and S.

A. Holl 1990. Desert-dwelling mountain

sheep: Conservation implications of a

naturally fragmented distribution.

Conservation Biology 4:383–390.

Bleich, V. C., J. D. Wehausen, R. R.

Ramey II, and J. L. Rechel 1997.

Metapopulation theory and mountain

sheep: Implications for conservation.

Pages 353–373 in D. R. McCullough,

editor. Metapopulations and Wildlife

Conservation, Island Press, Washington

D.C.

Bighorn Institute 1996. Summary of

the San Jacinto Mountains helicopter

survey of Peninsular bighorn sheep.

unpublished report, 2 pp.

Bighorn Institute 1996. Summary of

the Santa Rosa Mountains helicopter

survey of Peninsular bighorn sheep.

unpublished report, 3 pp.

Boyce, W. M., P. W. Hedrick, N. E.

Muggli-Cockett, S. Kalinowski, M. C. T.

Penedo, and R. R. Ramey II 1997.

Genetic variation of major

histocompatibility complex and

microsatellite loci: A comparison in

bighorn sheep. Genetics 145:421–433.

DeForge, J. R., E. M. Barrett, S. D.

Ostermann, M. C. Jorgensen, and S. G.

Torres 1995. Population dynamics of

Peninsular bighorn sheep in the Santa

Rosa Mountains, California. Desert

Bighorn Council Trans. 39:50–57.

R. R. Ramey II 1995. Mitochondrial

DNA variation, population structure,

and evolution of mountain sheep in the

south-western United States and

Mexico. Molecular Ecology 4:429–439.

Rubin, E., and W. Boyce 1996. Results

of helicopter survey conducted in AnzaBorrego Desert State Park, unpublished

memo to Steve Torres (CDFG Bighorn

Sheep Coordinator) and project

collaborators. 6 pp.

Wehausen, J. D., and R. R. Ramey II

1993. A morphometric reevaluation of

the Peninsular bighorn subspecies.

Desert Bighorn Council Trans. 37:1–10.

Regarding the above articles and

reports, the Service particularly seeks

information concerning:

(1) The biological and ecological

distinctiveness of bighorn sheep in the

Peninsular Ranges from other

populations of bighorn sheep;

(2) other biological, commercial, or

other relevant data on any threat (or lack

thereof) to bighorn sheep in the

Peninsular Ranges; and

(3) the current size, number, or

distribution of bighorn sheep

populations in the Peninsular Ranges.

Written comments may now be

submitted until [May 7, 1997] to the

Service office in the ADDRESSES section.

Authority

The authority for this action is the

Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.).

Dated: April 1, 1997.

Thomas J. Dwyer,

Regional Director, Region 1.

[FR Doc. 97–8779 Filed 4–4–97; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 229

[Docket No. 970129015–7072–02; I.D.

031997B]

RIN 0684–AI84

Taking of Marine Mammals Incidental

to Commercial Fishing Operations;

Atlantic Large Whale Take Reduction

Plan Regulations

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS by this action proposes

a take reduction plan and implementing

regulations to reduce serious injury and

mortality of four large whale stocks that

occur incidental to certain fisheries. The

whales stocks consist of the North

Atlantic right whale (Eubalaena

glacialis), Western North Atlantic stock,

humpback whale (Megaptera

novaeangliae), Western North Atlantic

stock, fin whale (Balaenoptera

physalus), Western North Atlantic stock,

and minke whale (Balaenoptera

acutorostrata), Canadian East Coast

stock. Covered by the proposed plan are

fisheries: for multiple species, including

monkfish and dogfish in the New

England Multispecies sink gillnet

fishery; for multiple species in the U.S.

mid-Atlantic coastal gillnet fisheries; for

lobster in the Gulf of Maine and U.S.

mid-Atlantic trap/pot fisheries; and for

sharks in the Southeastern U.S. Atlantic

driftnet fishery. NMFS seeks comments

on this proposed plan and the proposed

regulations to implement the plan.

DATES: Comments on the proposed plan

and proposed regulations to implement

the plan must be received by May 15,

1997.

ADDRESSES: Send comments to Chief,

Marine Mammal Division, Office of

Protected Resources, National Marine

Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910–

33226. Copies of the Team Report and

draft Environmental Assessment (EA)

may be obtained by written request from

the Office of Protected Resources, or by

telephoning one of the contacts listed

under FOR FURTHER INFORMATION

CONTACT.

FOR FURTHER INFORMATION CONTACT: Kim

Thounhurst, NMFS, Northeast Region,

508/281–9368; Bridget Mansfield,

NMFS, Southeast Region, 813/570–

5312; or Michael Payne, NMFS, Office

of Protected Resources, 301/713–2322.

SUPPLEMENTARY INFORMATION:

Background

Since it was first passed in 1972, one

of the underlying goals of the Marine

Mammal Protection Act (MMPA) has

been to reduce the incidental serious

injury and mortality of marine mammals

permitted in the course of commercial

fishing operations to insignificant levels

approaching a zero mortality and

serious injury rate (section 101(a)(2) of

the MMPA). The 1994 Amendments to

the MMPA reaffirm this Zero Mortality

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

To facilitate reduction of incidental

serious injury and mortality to high

priority marine mammal stocks, section

118(f) requires NMFS to develop and

implement a take reduction plan to

assist in the recovery or to prevent the

depletion of each strategic stock that

interacts with a Category I or II fishery.

Category I or II fisheries are fisheries

that have frequent or occasional

incidental mortality and serious injury

of marine mammals, respectively. A

strategic stock is a stock: (1) For which

the level of direct human-caused
16520 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

mortality exceeds the potential

biological removal (PBR) level; (2)

which is declining and is likely to be

listed under the Endangered Species Act

(ESA) in the foreseeable future; or (3)

which is listed as a threatened or

endangered species under the ESA or as

a depleted species under the MMPA.

The immediate goal of a take reduction

plan (TRP) is to reduce, within 6

months of its implementation, the

mortality and serious injury of strategic

stocks incidentally taken in the course

of commercial fishing operations to

below the PBR levels established for

such stocks. The long-term goal of the

plan is to reduce, within 5 years of its

implementation, the incidental

mortality and serious injury of strategic

marine mammals taken in the course of

commercial fishing operations to

insignificant levels approaching a zero

mortality and serious injury rate.

NMFS established the Atlantic Large

Whale Take Reduction Team (Team or

ALWTRT) on August 6, 1996 (61 FR

40819) to prepare a draft Atlantic Large

Whale Take Reduction Plan to reduce

takes of humpback, fin and right whales,

which are listed as endangered species

under the ESA (and are thus considered

strategic stocks under the MMPA) by

commercial fisheries. Although minke

whales are not considered strategic at

this time, the Team was also asked to

consider measures that would reduce

takes of minke whales. The Team

prepared a report and submitted it to

NMFS; a more complete discussion of

the Team Report and associated

recommendations is provided below.

The New England Multispecies sink

gillnet fishery is a Category I fishery that

has an historical incidental bycatch of

humpback, minke, and possibly fin

whales. This gear type has been

documented to take right whales in

Canadian waters. Additionally,

entanglements of right whales in

unspecified gillnets have been recorded

historically for U.S. waters, although

U.S. sink gillnets have not been

conclusively identified as having taken

right whales. The Gulf of Maine/U.S.

mid-Atlantic lobster trap/pot fishery is a

Category I fishery that has an historical

incidental bycatch of right, humpback,

fin and minke whales. The mid-Atlantic

coastal gillnet fisheries are considered a

Category II fisheries complex that has an

historical incidental bycatch of

humpback whales. The Southeastern

U.S. Atlantic drift gillnet fishery for

sharks is a Category II fishery that is

believed to be responsible for bycatch of

at least one right whale. These fisheries

are therefore addressed in this proposed

Atlantic Large Whale Take Reduction

Plan (ALWTRP or Plan). The pelagic

drift gillnet fishery has recorded takes of

large whales, but those interactions are

not being addressed in this Plan, since

it will be addressed in the Atlantic

Offshore Cetacean Take Reduction Plan,

which is being developed.

In addition, the Team Report

identified several other fisheries

operating on the U.S. Atlantic Coast

which either use gear similar in

construction to gear used by the

fisheries covered by this proposed plan,

and may therefore represent similar

entanglement threat, or which may have

documented serious injury or mortality

entanglements of right, humpback, fin

and/or minke whales. These fisheries

include the tuna hand line/hook-andline fishery, groundfish (bottom)

longline/hook-and-line fishery, surface

gillnet fishery for small pelagic fishes,

pot fisheries other than lobster pot,

finfish staked trap fisheries, and weir/

stop seine fisheries. Currently, these

fisheries are either classified as Category

III or are unclassified. NMFS is

considering the appropriateness of these

classifications and may impose gearmarking requirements and/or

restrictions on some or all of these other

fisheries in the final plan. NMFS

specifically invites comments on

whether these other fisheries utilize the

same or similar gear as the fisheries

considered in this plan, whether the

gear is fished in a manner which causes

or has the potential to cause serious

injury or mortality to marine mammals,

whether efficient administration,

effective enforcement or similar

considerations warrant uniform

regulations for similar gear types, and

whether the gear-marking requirements

and/or other restrictions should apply to

all fisheries using similar gear.

The Team was tasked with developing

a draft plan for reducing mortality and

serious injury to strategic large whale

stocks, and minke whales if time

permitted, in the specified fisheries. The

Team included representatives of

NMFS, the Marine Mammal

Commission, Maine Department of

Marine Resources, Massachusetts

Division of Marine Fisheries, Rhode

Island Division of Fish and Wildlife,

Maryland Department of Natural

Resources, Virginia Marine Resources

Commission, North Carolina Division of

Marine Fisheries, Georgia Department of

Natural Resources, Florida Department

of Environmental Protection, New

England Fishery Management Council,

Mid-Atlantic Fishery Management

Council, environmental organizations,

academic and scientific organizations,

and participants in the fisheries

considered in this plan. In selecting

these team members, NMFS sought an

equitable balance among representatives

of resource user and non-user interests.

The team met six times between

September 1996 and January 1997 and

submitted a report to NMFS on February

5, 1997 (Although the report was

entitled ‘‘Draft Large Whale Take

Reduction Plan’’, consensus was not

reached. Consequently, it is referred to

as the ‘‘ALWTRT Report’’ or ‘‘Team

Report’’). While consensus was not

reached, the Team provided a

significant and useful framework for

NMFS to develop this proposed

ALWTRP and the associated

implementing regulations. The report

submitted by the Team includes: (1) A

review of the current information on the

status of the affected strategic marine

mammal stocks; (2) descriptions of the

New England multispecies sink gillnet

fishery, the mid-Atlantic coastal gillnet

fisheries, the Gulf of Maine and U.S.

mid-Atlantic lobster trap/pot fisheries,

and the Southeastern U.S. Atlantic drift

gillnet fishery for sharks; (3) comments

on potential measures to reduce the

bycatch of large whales; and (4) other

comments regarding research needs for

implementation of the plan.

NMFS evaluated the Team Report and

subsequent comments submitted by

team members in developing this

proposed ALWTRP. NMFS considered

possible take reduction measures in

terms of their potential effectiveness

toward reaching both the 6-month and

the 5-year goals. This ALWTRP includes

specific take reduction goals as well as

means to monitor progress toward those

goals.

Take Reduction Goals

Most of the measures in this proposed

plan focus on ways to reduce the risk of

serious injury and mortality to right

whales, both because the right whale’s

population status is more critical than

that of either humpback or fin whales,

and because right whales are the only

endangered large whale in U.S. Atlantic

waters for which PBR is known to be

exceeded. The proposed measures are

also expected to reduce the risk of

serious injury and mortality to

humpback and fin whales due to

entanglement, and may reduce the same

risks for minke whales. There is overlap

in several areas where fishing occurs

and where right, humpback, fin and

minke whales are also known to occur,

although concurrent use of these areas

by all species does not occur during

much of the year. Therefore, certain

measures directed at reducing right

whale entanglements (such as required

gear modifications) are proposed to be

expanded to year-round coverage
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16521

beginning in 1998 to be effective for all

species considered by the Plan.

Some entanglements of large whales

were observed by the NMFS sea

sampling program; however, most

records come from reports from various

sources such as small vessel operators.

Limitations of the available

entanglement data include: (1) Not all

observed events are reported; (2) most

reports are opportunistic rather than

from systematic data collection;

consequently, conclusions cannot be

made regarding actual entanglement

levels; (3) identifying gear type or the

fishery involved is often problematic;

and (4) identifying the location where

the entanglement first occurred is often

difficult since the first observation

usually occurs after the animal has left

the original location.

Right Whales

Based on data from 1991 through

1995, U.S. fishing gear is estimated to be

responsible for approximately 35

percent (6 events) of known humancaused serious injury and mortality to

right whales, while Canadian fisheries

are estimated to be responsible for 18

percent (3 events); the remaining 47

percent (8 events) is attributed to ship

strikes. The MMPA requires that TRPs

include measures to reduce takes of

strategic marine mammals incidental to

U.S. commercial fisheries to below PBR

levels.

NMFS estimates that a minimum of

1.2 right whales from the western North

Atlantic stock are seriously injured or

killed annually by entanglement in U.S.

fishing gear. Of those entangled whales,

lobster gear is estimated to have

entangled an annual average of 0.4

whales over the last 5 years. The

Southeastern U.S. drift gillnet fishery

for sharks is assumed to have entangled

an annual average of 0.2 whales over the

same period. Whales entangled in

unidentified gillnet gear have been

observed. The pelagic drift gillnet

fishery is estimated to be responsible for

0.4 fishery-induced mortalities and

serious injuries of right whales

annually. The remaining known

entanglements are from unknown

fisheries. With the exception of the

swordfish driftnet take, which was

documented by the NMFS observer

program, these entanglement rates are

considered minimum estimates based

on known events. Unobserved

entanglements are known to occur,

based on observed scarred animals.

These entanglements may be

unobserved because less serious

entanglements may be brief in duration,

mortality may be rapid, or the

entanglement may occur in an area

where there is little sighting effort (and,

consequently, lower chances of

observation and reporting). NMFS is

unable to estimate the number of these

unobserved events.

NMFS has determined that to meet

the 6-month goal set by the MMPA to

reduce takes by commercial fisheries to

below the PBR level of 0.4 for this stock,

the probability of entanglement of right

whales by all U.S. Atlantic fisheries

must be reduced by more than 67%

(from 1.2 to less than 0.4). Reduction of

takes in the pelagic drift gillnet fishery

will be considered in the Atlantic

Offshore Cetacean Take Reduction Plan

(AOCTRP). A draft AOCTRP was

submitted to NMFS on November 25,

1996, and publication of the proposed

plan in the Federal Register is expected

in the near future.

NMFS estimates annual serious injury

and mortality rates based on a 5-year

period. Expected rates of entanglement

during any 6-month period may vary

from the 5-year annual average. This

variation may be most pronounced

where the sample size is particularly

small, as is the case with right whale

entanglements. Consequently, it will be

difficult to establish whether the goal of

reducing incidental takes of right

whales to below the PBR level is

achieved within 6 months of the plan is

implemented. Since the PBR level for

right whales is 0.4, if more than two

serious injuries or mortalities incidental

to commercial fishing operations occur

within 5 years after the plan is

promulgated, then the PBR goal will not

have been achieved.

Progress toward the 5-year goal may

be more feasible to monitor than that

toward the 6-month goal. However,

defining the 5-year goal is somewhat

more difficult, since at this time, NMFS

has not issued a final quantitative

definition for ZMRG. NMFS expects to

address the regulatory definition of

ZMRG in the near future. However,

more than one incident of serious injury

or mortality in the fisheries covered

under the ALWTRP (which does not

include all fisheries) during the first 3

years after the plan is implemented

would be a strong indicator that the

plan was not achieving its goals. Right

whale entanglement rates are proposed

to be monitored as described below.

Humpback Whales

NMFS has determined that a

reduction in take for the western North

Atlantic stock of humpback whales is

not required to meet the 6-month goal,

because the estimated annual serious

injury and mortality level due to

entanglement (in the four fisheries

groups covered in this plan) for this

stock (3.4 minimum annual average for

1991–1995) is below the stock’s PBR

level of 9.7.

As with right whales, a quantitative

goal to achieve the 5-year goal of ZMRG

for humpback whales cannot be

prescribed until ZMRG has been defined

in terms other than ‘‘insignificant levels

approaching a zero mortality rate.’’ If

entanglement rates are observed to be

reduced, progress toward ZMRG would

be assumed, but could not be assessed

more accurately until ZMRG is defined

more precisely. The humpback whale

entanglement rate is proposed to be

monitored as described below.

Fin Whales

Although serious injury and mortality

due to entanglement has been

documented for this stock of fin whales

over the 1991–1995 period, none of

those events can be conclusively

attributed to any of the four fisheries

groups covered in this plan, and the

estimated total take due to entanglement

is below PBR for this stock. Therefore,

NMFS has determined that a reduction

in take for the western North Atlantic

stock of fin whales is not required for

these fisheries to meet the 6-month goal.

However, entanglement of fin whales in

lobster pot gear and gillnet gear has

been documented historically, and some

reduction in take may be necessary to

achieve the ZMRG. As with right and

humpback whales, a quantitative goal to

achieve the 5-year goal of ZMRG for fin

whales cannot be established with

numerical precision at this time.

However, measures implemented to

reduce the entanglement rate of right

and humpback whales would also be

expected to reduce the entanglement

rate for fin whales, facilitating progress

of that stock toward ZMRG. Fin whale

entanglement rate are to be monitored,

as feasible, although it should be noted

that known entanglements are rare, and

it may be difficult to determine whether

there has been a reduction.

Additionally, the number of entangled

fin whale sightings is likely to be

negatively biased because carcasses

usually sink immediately and are

therefore less likely to be observed.

Minke Whales

Although minke whales are not

considered strategic at this time

(human-caused mortality and serious

injury are not known to exceed the PBR

level of 21 for this stock, and this

species is not listed as threatened or

endangered under the ESA or as

depleted under the MMPA), serious

injuries and mortalities incidental to at

least two of the fisheries groups covered

in this proposed plan are known to
16522 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

occur. Therefore, the Team was asked to

consider measures that would reduce

takes of minke whales in these fisheries.

In light of the strict time frame available

to develop a TRP, the Team did not

have time to consider specific needs or

measures to reduce entanglements of

minke whales. However, measures

implemented to reduce the

entanglement rate of right and

humpback whales may reduce the

entanglement rate for minke whales,

facilitating progress of that stock toward

ZMRG. The minke whale entanglement

rate is proposed to be monitored, to the

extent feasible. If entanglement rates are

observed to be reduced, progress toward

ZMRG would be assumed, but could not

be assessed more accurately until ZMRG

is defined more precisely. As with fin

whales, minke entanglement levels are

likely to be underestimated because

carcasses are likely to sink immediately.

Monitoring Strategies

The following strategies for

monitoring progress in take reduction

were outlined in the Team Report: (1)

Collect adequate photographic data to

evaluate the incidence of new

entanglement scarring and assess

presumed mortality levels; (2) expand

field survey efforts for a minimum of six

years after implementation of gear

modifications, to assess population

abundance and distribution; and (3)

evaluate effectiveness of gear

modifications on future entanglement

events. The success of the take

reduction measures that are

implemented will be evaluated at future

Team meetings, with subsequent

comments and recommendations

forwarded to NMFS.

NMFS will continue to monitor

entanglements of all large whale

species. Assessment of the success in

bycatch reduction measures will be

based on reports from the NMFS

observer program, examination of

stranded whales, abundance and

distribution surveys, fishermen’s reports

and opportunistic reports of

entanglement events. NMFS is

considering expanding field survey

efforts to assess population abundance

and distribution. The effectiveness of

implemented take reduction measures

may be most apparent through

monitoring the entanglement rate for

humpback whales, since this species

has the highest known entanglement

rate of the large whales on the U.S.

Atlantic coast. A decrease in

entanglements of humpback whales will

be taken as supportive evidence that the

risk of entangling right, fin and minke

whales has been reduced.

It should be emphasized that not all

whale entanglements result in serious

injury or mortality. Levels of

entanglement-related scarification in the

right whale population have been

analyzed (Kraus, 1990). Monitoring of

scarification and comparison of historic

levels in the population, as noted in the

Team Report, may help provide a basis

for determining whether the various

take reduction measures in the final

plan are effective in decreasing levels of

interaction between whales and fishing

gear. This must be considered together

with determining the effectiveness of

gear modifications (which may leave

scars on whales, but not result in

serious injuries and mortalities) in

decreasing the severity of entanglementrelated injuries. The level of non-serious

injuries resulting from entanglements

will provide further indication of

whether the 6-month and 5-year goals of

the ALWTRP are being achieved.

Monitoring fishing effort levels in

conjunction with assessment of gear

effectiveness may provide another

indicator of entanglement rates. This

will be considered when the Team

periodically convenes to evaluate the

success of the ALWTRP. If fishing effort

is reduced, entanglement risk may also

decline, although a linear relationship

cannot be assumed. Rather,

entanglement risk may decrease by an

unknown percentage depending on the

degree of overlap between historical

fishing effort and whale distribution.

Some marking of lobster pots, gillnets

and associated surface gear (e.g., buoys,

high-fliers, or flags) is currently required

or being considered under Federal or

state fishery management plans for the

four groups of fisheries covered by this

plan. However, most lines and nets in

the water column remain unmarked.

Most sightings of entangled whales

involve gear which cannot be

conclusively tracked to a particular

fishery or area, due to the fact that only

a fragment of line or net is present.

Several entanglement records

indicates that whales are capable of

dragging gear great distances. In one

known instance, a right whale that

became entangled in a lobster pot trawl

in the Bay of Fundy dragged fragments

of the trawl to Cape Cod, Massachusetts,

where the whale was struck by a vessel

and washed up on the beach. Due to

these factors and the low per-gear

interaction rate, NMFS believes that the

traditional observer program will not be

effective in detecting or monitoring

large whale entanglements in most

fisheries.

To increase the value of information

from future entanglement events, NMFS

is proposing gear marking requirements

to monitor the effectiveness of this plan

and to determine whether

entanglements are occurring in gear

which has been damaged or displaced

by storms or user-group conflicts. NMFS

seeks to implement this requirement in

as simple a manner as possible as

described in the gear modifications

section below.

Take Reduction Strategies

The primary measures for take

reduction discussed in the Team Report

include modifications to fishing gear

and practices, area restrictions,

reduction of inactive fishing gear as

marine debris, and improved

disentanglement efforts. Supplementary

initiatives for take reduction contained

in the Team Report include fisher

education and outreach, better

monitoring of the distribution of whale

stocks and entanglements, joint

initiatives with Canada to reduce whale

bycatch in commercial fisheries, and

exploration of market incentives to

reduce large whale bycatch in these

fisheries. In this action, NMFS is

proposing strategies that seem best

suited to follow the intent of the Team

and to achieve the goals set forth by the

MMPA. NMFS expects that, if

implemented, these measures, taken

together, would have a significant effect

in reducing the risk of entanglement of

large whales in the fisheries considered

in this plan to levels that meet both the

6-month and 5-year goals.

Whales are extremely mobile and

entanglements have occurred outside

the bounds of known high risk areas. It

is, therefore, not possible to identify all

areas of risk. It is likewise difficult to

determine if the measures proposed in

this plan will be sufficient to reduce

entanglements that result in serious

injury and mortality to below PBR

levels, and eventually to the ZMRG, or

to maintain take rates below those

levels. Further restrictions will be

applied if these measures are not

successful.

It is not possible to conclusively

quantify the decrease in risk of

entanglement that will result from the

proposed measures in this ALWTRP.

The Team was presented with the best

available data on large whale

distribution and abundance patterns in

the Atlantic, as well as similar

information on fisheries effort and

distribution. These data were analyzed

and compared to determine areas and

times that represent ‘‘high risk’’ to

whales based on high probability of

whale occurrence and/or high fishing

effort. This analysis was used by the

Team to provide comments to NMFS

regarding locations and times for area
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16523

closures or gear restrictions. For an

analysis of the level of entanglement

risk from the Northeast sink gillnet

fishery for all areas, which was done by

overlaying right and humpback whale

densities on fishing effort for different

times of the year and assigning low,

medium or high risk, see the appendix

11 and other materials in the ALWTRT

Report. Whale densities during certain

months in some areas are such that the

Team believed it was important to

prevent future expansion of fishery

effort until effective gear modifications

have been developed and demonstrated.

In other areas periodic increased whale

densities combined with certain levels

of fishing effort may create anomalous

high risk periods.

The proposed requirements would

govern fishing by all vessels in New

England multispecies sink gillnet

fisheries, the mid-Atlantic coastal

gillnet fisheries, the Gulf of Maine/U.S.

mid-Atlantic lobster trap/pot fishery

and the Southeastern U.S. Atlantic drift

gillnet fishery for sharks. As stated

earlier, there are additional trap/pot,

gillnet or other gear that may have the

potential to entangle whales. These are

primarily Category III fisheries which

will be evaluated during the 1998 List

of Fisheries process for potential

interaction levels with large whales and

possible elevation to Category I or II.

Although these fisheries are not

included in take reduction or gear

marking measures under this proposed

rule, the final rule may include such

measures.

Research Initiatives and Monitoring

Strategies

The Team recommended initiation of

a gear research and development

program to design and implement

fishing techniques and technologies that

will reduce the entanglement rate and/

or severity of injuries and mortalities of

large whales. The Team recommended

that NMFS work with industry and gear

specialists to develop criteria for: (1)

Certifying individuals and institutions

as qualified to design and evaluate

modifications for use consistent with

requirements of the ALWTRP and other

TRPs; and (2) evaluating gear

effectiveness toward reducing marine

mammal entanglements.

The Team Report identified several

initial gear modifications for

investigation. These are the

development of: (1) Tag lines

(lightweight line that poses no risk to

whales, but would hold a buoy at the

surface and allow retrieval of a

functional buoy line); (2) biodegradable

or a weak link at the bottom of the buoy

line; (3) improvement of a weak link at

the top of the buoy line; (4) smooth or

non-snagging gillnet head rope; (5)

biodegradable gear and gear

components; (6) using weights to sink

floating pot trawl groundline,

development of other functional

equivalents of sinking groundline, or

requiring sinking groundline; and (7)

‘‘noisy’’ gear, or gear more easily

detected by whales. Also identified in

the Team Report as areas for further

investigation are the evaluation of the

breaking strengths of weak links and the

performance of weak links in gillnets

both between and within net panels.

The Team Report further comments that

successful gear modifications be

considered for future incorporation into

the plan as implementation measures.

NMFS is forming a gear review and

technical advisory group to work with

industry and gear technology specialists

to develop gear and fishing practices to

reduce the number and impact of large

whale entanglements. NMFS recognizes

that the current low rate of observed

entanglement and other difficulties in

evaluating gear makes it difficult or

impossible to demonstrate conclusively

that any gear modification would reduce

entanglement or serious injury and

mortality resulting from entanglement.

Nonetheless, NMFS has included

certain gear modifications in this

proposed rule although these measures

have not yet been evaluated by the

NMFS gear review and technical

advisory group. NMFS believes that

these modifications will reduce the risk

of entanglement, but seeks further

review of these measures.

It is anticipated that the NMFS gear

review group will conduct an initial

review of the proposed gear

modifications prior to publication of the

final rule implementing this plan.

NMFS proposes to immediately

implement the most stringent

restrictions in areas and times when

right whale concentrations are highest.

This strategy was initiated in

regulations implementing Framework

Adjustment 23 to the Northeast

Multispecies Fishery Management Plan

and emergency regulations for the

lobster fishery under the MMPA. The

proposed rule incorporates these

restrictions and phases in additional

restrictions.

Through gear marking requirements,

NMFS hopes to obtain more useful data

regarding when and where

entanglements occur, as well as in

which parts of the gear they are most

likely to occur. This measure will not

reduce bycatch, but is expected to

facilitate in monitoring entanglement

rates and assist in designing future

bycatch reduction measures to achieve

ZMRG.

NMFS seeks to implement the gear

marking requirement in as simple a

manner as possible. A system entailing

color-coded marks is proposed. The

marking would include three color

schemes, one color representing the gear

type corresponding to one of the

fisheries in this plan, and the second

mark consisting of two colors indicating

the region in which the gear is being

fished. Regions would include Cape Cod

Bay critical habitat, Great South

Channel critical habitat, the Stellwagen

Bank/Jeffreys Ledge area, other

Northeast waters, Mid-Atlantic coastal

waters, and Southeast waters. Gear

marking must be accomplished so that

the result is a smooth line with no snags

which could catch in a whale’s baleen.

Marking of buoy lines (within 2 feet

of the buoy and approximately midway

in the water column) would be required

by January 1, 1998, and marking of nets

(at both ends of each net in a string of

gillnets and every 100 feet in panels >

300 feet) and lobster pot trawl

groundlines (approximately midway

between each pot) would be required by

January 1, 1999. NMFS solicits

comments on these proposed gear

marking measures and alternative

suggestions. In addition, NMFS also

requests comments on whether gearmarking should be required for the other

fisheries discussed above which utilize

similar gear.

Primary Take Reduction Initiatives

Fishing Method / Gear Modifications

and Area Restrictions by Fishery and

Area

All Fisheries:

Documented whale behavior and

information from actual entanglement

records suggest that both vertical (e.g.,

buoy lines) and horizontal (e.g., gillnets

or lobster pot trawl groundlines)

components of fishing gear represent

entanglement risks. For example, of the

9 records of right whale entanglements

in gear identified as lobster gear since

1970, 4 apparently involved only the

buoy line, 2 probably involved only

groundline, and 3 involved line that was

from an unknown part of the gear.

Modifications to the current practices of

rigging buoy lines are proposed to

reduce the number of vertical lines and

to ensure that pot trawls are not rigged

with more than two vertical lines.

Although the level of risk reduction

cannot be quantified because the current

number of vertical lines is unknown,

implementation of these measures will

likely directly reduce the entanglement

risk presented by vertical buoy lines.
16524 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

Sinking Buoy Line Requirement

(except for driftnet gear): Buoy lines are

typically constructed of a section of

sinking line near the surface which is

spliced or knotted to a longer section of

floating line that is attached to the

anchor of a gillnet or the first pot of a

lobster pot trawl. Sinking line is

preferred near the surface to decrease

the chance that the line will be severed

by propellers of vessels passing through

an area. The attached floating line is less

expensive than sinking line and has

several additional benefits. Using

floating line near the bottom can

prevent the line from wrapping around

gear or rocks on the bottom and chafing

as the gear is moved by currents in the

area. The length of buoy line used can

depend on water depth and tidal

influence. In some areas the buoy line

may be longer than twice the water

depth, and the tautness of the line is

influenced by the tidal cycle and other

currents. Therefore, the line may be

slack during part of the current cycles

in certain areas.

Slack floating line appears to

represent a greater risk of entanglement

than taut line, particularly if the line is

laying at or near the surface. Right

whales may be particularly susceptible

to entanglement in lines laying at or

near the surface because of the feeding

behavior known as ‘‘skim feeding’’

during which whales move slowly

forward through a patch of zooplankton,

keeping the mouth slightly ajar for

hours at a time. Right and humpback

whales are also known to feed at depth;

however, the behavior when feeding

near the bottom or in the water column

is poorly understood.

NMFS proposes to require sinking

buoy lines or modified sinking buoy

lines, by January 1, 1998, in all lobster

pot gear and gillnet gear used by

anchored gillnet fisheries covered by

this plan be required by January 1, 1998.

In order to accommodate regional

differences in the practice of rigging

buoy lines due to oceanographic

conditions, NMFS proposes to allow

fishers to use a section of floating line

near the bottom of buoy lines in some

areas. The Team discussed using 10

fathoms (18.3 m) for this bottom floating

section in some areas such as the Great

South Channel. Several TRT members

mentioned that allowing this amount of

floating line in the buoy line in portions

of Stellwagen Bank and even the Great

South Channel would represent very

little reduction in risk, since the water

is not much deeper than 10 fathoms

(18.3 m) in certain parts of those

regions. Because requiring one length,

even for one area such as the Great

South Channel right whale critical

habitat, is problematic, NMFS is

proposing that the floating line at the

bottom of a modified sinking buoy line

be no longer than 10% of the depth of

the water. NMFS is requesting

comments on whether 10 fathoms, 1

fathom, or other lengths is more

appropriate or whether a different

percentage of the water column depth

should be specified as the minimum

length.

Breakaway Buoy or Weak Buoy Line

Requirement (except for driftnet gear):

NMFS proposes that by January 1, 1998,

all buoy lines in lobster pot gear and

anchored gillnet gear considered in this

plan be equipped with a breakaway

buoy at the top of the buoy line, or that

traditional buoy lines be replaced with

a weak buoy line. The breakaway buoy

or weak buoy line would be designed to

break in a whale entanglement situation.

Based on comments by the Team, NMFS

is considering requiring a maximum

breaking strength of 150, 300 and 500

lbs (68 kg, 136 kg, and 227 kg,

respectively). NMFS is proposing a 150

lb (68 kg) breaking strength, which is

the initial value recommended by the

Commonwealth of Massachusetts

Endangered Whale Working Group and

which was also discussed by the Team.

Comments are requested on the

appropriateness and practicality of these

and other possible breaking strengths.

The purpose of this requirement is to

reduce the serious injury and mortality

associated with an entanglement in the

buoy line of fixed gear. The goal of a

breakaway buoy is to ensure that the

buoy itself does not contribute to the

entanglement problem. A line without a

buoy or knot at the bitter end is

expected to pass more easily through

the baleen of a whale and to slip more

easily past an appendage. A line which

does not get hung up on the baleen or

on an appendage because there are no

knots or buoys is believed to be less

likely to initiate thrashing behavior. It is

believed that once a whale starts to

thrash, line can be wrapped around

appendages and/or begin to cut into

tissue. The breakaway buoy is intended

to prevent the entanglement from

progressing to that stage. While this

modification may not reduce the

incidence of entanglement, breakaway

buoys might be expected to at least

reduce the severity of an entanglement.

The intent of a weak buoy line is that

it would snap if a whale entangled in it

but would be strong enough to haul up

a heavier, traditional buoy line that

would in turn be used to haul up the

fishing gear. This measure may be the

most effective gear modification of any

discussed by the Team for reducing the

serious injury and mortality rate from

entanglement. As mentioned above,

buoy line appears to have been the part

of the gear responsible for at least 4 of

the 9 known right whale entanglements

in lobster pot gear. Right and humpback

whales have also been sighted entangled

in buoy lines of sink gillnet gear. If a

brittle buoy line could be designed to

break every time it was encountered by

a whale, this modification could reduce

and possibly eliminate the risk that

entanglement would occur or at least

ensure that entanglement in a buoy line

would result in serious injury or

mortality. NMFS assumes that use of

such a brittle buoy line may not be

practicable, but that a weak line can be

developed that will break at least half of

the time.

Since a breakaway buoy is not

expected to reduce the possibility of

injury once a whale gets wrapped in

line, the weak buoy line may represent

a greater conservation gain than would

be achieved through the breakaway

buoy. However, the development of a

weak buoy line is not as far along as the

development of a breakaway buoy. In

addition, the cost of developing and

implementing a weak buoy line system

may be substantially greater than a

breakaway buoy system. NMFS

proposes to require the use of

breakaway buoys in 1998, but weak

buoy lines are encouraged to be used as

an alternative. Comments are requested

on approaches to phasing in this

requirement.

Gear inspection requirement: This

proposed rule includes a requirement

that all gear used by the four specified

fisheries be hauled at least once every

30 days for inspection. This provision

was discussed by the ALWTRT for

certain gear types to encourage fishers

not to ‘‘store’’ gear at sea.

Closures: In addition to gear

modifications, the Team discussed the

use of time/area closures for sink gillnet

and lobster pot gear in areas of high use

by right whales until fishing gear has

been developed that poses minimal risk

of serious injury or mortality from

entanglement. Only gear demonstrated

to pose minimal risk to whales will be

allowed in the restricted area.

Contingency Measures: Closure or

other restrictions in the event of an

entanglement in modified gear: As

noted above, NMFS is aware that it will

be difficult to determine with surety

that required gear modifications will

reduce the rate of serious injury and

mortality as expected. NMFS proposes

that if an injury or mortality of a right

whale occurs as the result of an

entanglement in modified gear, NMFS

will assess the circumstances, including

the level of injury, and determine if
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16525

there is indication that the modification

is not sufficient to reduce the rate of

serious injury or mortality to right

whales. If such a serious injury or

mortality is attributable to modified gear

in a critical habitat area, NMFS would

close the critical habitat area during the

restricted period. If such a serious injury

or mortality is attributable to modified

gear in another restricted area, NMFS

could close the area or impose

additional restrictions to ensure the

protection of right whales.

If the entanglement involved only the

non-serious injury of a right whale, or

involved another large whale species,

NMFS would again investigate and

determine whether the interaction was

attributable to modified gear. If the

entanglement was attributable to

modified gear, NMFS could impose

additional gear modifications or

alternative fishing practices, or close the

area through a publication in the

Federal Register.

This measure would enable NMFS to

take prompt action to protect

endangered whales if modified gear is

not sufficiently effective. NMFS will

examine each entanglement event on a

case by case basis to determine whether

the gear responsible is modified gear,

and whether the entanglement resulted

in serious injury or mortality.

Closures or other restrictions based on

unusual concentrations of right whales:

The measures in this rule are proposed

to be implemented in various areas

based on current knowledge of

migratory patterns of right whales. Right

whale movements are unpredictable,

however, and there are periods when

right whales occur in certain U.S. waters

at other than expected times of the year

and in areas other than right whale

critical habitat. Some of these times and

areas may have large amounts of fixed

gear in the water. The risk of

entanglement may be particularly high

in these unpredictable situations. For

example, all right whale entanglements

in U.S. lobster gear where the location

was known occurred either outside

critical habitat or outside the peak

season in critical habitat. As an added

measure to reduce the likelihood of

entanglement in the anomalous years

with unusual right whale distribution

patterns, the proposed regulations allow

NMFS to extend gear requirements or to

close a restricted area. Notification of

such action would be published in the

Federal Register. Under the proposed

rule, special area restrictions would be

considered if four or more right whales

are sighted in an area for two

consecutive weeks. Right whales would

be judged to have left the area if there

are no confirmed sightings for one week

or more. NMFS requests comments on

the criteria for determining

concentrations of right whales that may

require additional protection and

suggestions for alternative criteria.

Risk reduction through other MMPA

actions or fishery management plan

regulations: In addition to this proposed

rule, certain other measures that are

expected to decrease the risk of

entanglement of whales in sink gillnets

are either currently in effect or under

consideration, such as reductions in

allowable days at sea and seasonal or

year-round area closures to protect

groundfish. Additionally, area closures

for harbor porpoise conservation are in

effect for Massachusetts Bay, the Gulf of

Maine ‘‘mid-coast’’ and ‘‘northeast’’

areas, and southern New England. With

the exception of the harbor porpoise

closure in southern New England, all of

these closures coincide with times that

right whales are also present in the area,

further decreasing the likelihood of

entanglement. Effort reduction measures

under Framework Adjustment 20 to the

Northeast Multispecies Fishery

Management Plan are expected to

reduce total sink gillnet effort by 50 to

80 percent, which is expected to reduce

the risk of large whale entanglement

associated with this gear by some

fraction of the same amount.

NMFS further notes that the

Commonwealth of Massachusetts and

the New England Fishery Management

Council (NEFMC) are considering net

caps in the sink gillnet fishery for future

implementation to conserve groundfish.

These measures, if implemented, may

further reduce the risk of entanglement

of right whales in sink gillnet gear, but

are not a part of this plan.

Some level of lobster pot gear effort

reduction may occur under gear conflict

management measures such as those

implemented by the NEFMC in

Southern New England. Further, NMFS

is aware that the Atlantic States Marine

Fisheries Commission is currently

considering reducing effort in the

lobster fishery. Any effort reduction

measures implemented for the lobster

fishery are likely to reduce the risk of

entanglement of whales in that gear, but

are not a part of this plan.

Fishery-Specific Measures: The

following measures are proposed for the

four groups of fisheries covered in the

ALWTRP. The measures are intended to

decrease the risk of entangling large

whales in gillnets and lobster gear.

Although they did not reach consensus,

the Team provided NMFS with a

significant and useful framework for

developing proposed implementing

regulations. The gear modifications

proposed by NMFS generally reflect the

intent of the Team to reduce the risk of

entanglement without creating an undue

burden on the fishing industry. NMFS

also considered whether the

recommended measures would meet the

goals of the MMPA. Certain areas,

identified as high use areas by large

whales during certain times of the year,

were targeted for closures or a high level

of gear restrictions. The following area

closures and gear restrictions are

intended to be implemented beginning

in 1998 for the period specified, except

for measures proposed for the Southeast

drift gillnet fishery for sharks, which

would be implemented beginning in

November 1997.

American Lobster Trap/Pot Fisheries

In addition to the buoy line

requirements and contingency measures

described above for all fisheries, NMFS

proposes the following area-specific

measures for the lobster trap/pot

fisheries covered in this plan.

As discussed above, groundlines of

lobster pot trawls represent an

entanglement risk to whales, although

the degree of risk relative to other parts

of the gear is unknown. The lobster

industry uses either sinking or floating

groundline, depending on substrate

and/or gear densities. Floating line is

preferred in many areas to avoid

snagging on rocky bottom or on other

pots as well as to reduce chafing caused

by contact with pots and with the

bottom. The degree to which line floats

between pots is unknown. Because right

and humpback whales are known to use

the lower part of the water column for

feeding or other activities, even a

modest curve to the groundline could

still represent an entanglement threat,

especially where the length of

groundline between pots may be as long

as the depth of the water column. The

requirement of sinking groundline

would reduce the potential for a high

profile of the groundline and therefore

reduce the entanglement threat

represented by that part of the pot trawl.

NMFS proposes to require

modifications to lobster pot trawl

groundlines only in certain areas with

primarily sandy bottoms to minimize

the amount of snagging and/or severing

on rocky outcrops. Restricting sinking

lines to these areas would not be

expected to have a significant negative

impact on the effectiveness in reducing

whale entanglements involving

accidental encounters, since whales are

not likely to feed close to the bottom in

rocky areas. However, there may be

cases when whales, particularly

juveniles, are attracted to gear even

along rocky bottom, so some potential

for entanglement remains. The NMFS
16526 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

gear review and technical advisory

group is expected to consider

recommendations for alternatives to

sinking groundline.

Cape Cod Bay Critical Habitat Area:

Based on comments in the Team Report,

NMFS proposes to restrict fishing with

lobster pot gear in the Cape Cod Bay

critical habitat area, including both

Federal and Commonwealth waters,

from January 1 through May 15 of each

year. Only certain types of lobster pot

gear would be allowed during this

period of high use by right whales.

NMFS proposes to prohibit the use of

single lobster pots or trawls of less than

4 pots during this time period. In

addition, trawls could not be rigged

with no more than 2 buoy lines. The

purpose of these requirements is to

reduce and/or prevent an increase in the

number of vertical lines in the water

that a whale might encounter. NMFS

also proposes to require that all

groundlines used in lobster pot trawls in

this area consist of sinking line.

Based on comments in the Team

Report, NMFS also proposes to restrict

fishing with lobster pot gear in the Cape

Cod Bay critical habitat area from May

16 through December 31. NMFS does

not propose to prohibit the use of single

pots from May 16 through December 31,

because the likely response to this

requirement may be for fishermen who

now use single pots in optimal lobster

habitat to add pots to their trawls rather

than to decrease the number of buoy

lines. Only one buoy line would be

allowed on trawls of less than 4 pots.

Otherwise, gear modifications proposed

for the May 16 through December period

are similar to those for the January 1

through May 15 period and would

include breakaway buoy or weak buoy

line, sinking buoy lines, and sinking

groundlines.

Great South Channel Critical Habitat

Area: Based on comments in the Team

Report, NMFS proposes to close all of

the Great South Channel critical habitat

area from April 1 to June 30 of each year

to lobster pot gear until the Assistant

Administrator determines that

alternative fishing practices or gear

modifications have been developed

which reduce the risk of serious injury

or mortality to whales to acceptable

levels. As noted above, if right whale

concentrations outside the usual ‘‘highuse’’ period warrant additional action,

the area may be closed, through a

publication in the Federal Register.

Although not allowing lobster pot

gear in the area west of the Loran C

13710 line from April 1 to June 30

appears inconsistent with what NMFS

proposes for sink gillnet gear in this

area, NMFS believes that lobster pot

gear poses a greater threat to right

whales than does sink gillnet gear in

this area. The offshore location

generally requires that gillnetters tend

their gear, whereas lobster pot gear in

this area is often not checked for

extended periods especially if there is

bad weather.

NMFS is proposing closure of the

Great South Channel critical habitat to

lobster pot gear during the high right

whale use period, but proposes gear

modifications in the Cape Cod Bay

critical habitat over the comparable

period. The rationale for this difference

is that there is a higher likelihood that

an entangled whale in Cape Cod Bay

will be sighted and reported, due to the

high level of vessel traffic and more

research efforts in that area. Potential

whale entanglements in Cape Cod Bay

are considered more likely to be

observed and reported to the

disentanglement network. In addition,

NMFS believes that disentanglement

efforts may be more effective in

reducing the potential for serious

injuries and mortalities in these

relatively shallow, nearshore waters

than in offshore waters. The Great South

Channel critical habitat is further

offshore and little whale watching or

survey effort exists there. The likelihood

of observing an entangled whale

offshore is lower, and offshore

disentanglement efforts are subject to

greater logistical impediments.

In addition, differences in

oceanographic conditions in the two

regions may make a particular gear

modification less effective in one area

relative to the other. For example, the

Great South Channel is much deeper

than Cape Cod Bay and exhibits much

stronger tides, requiring different fishing

practices. NMFS’ gear review and

technical advisory group will be asked

to consider oceanographic conditions in

the Great South Channel in making gear

recommendations that might be

effective and practicable in that area.

Although the Team Report contains

discussion regarding the closure of

Groundfish Management Area I, which

covers part of the Great South Channel

right whale critical habitat, to lobster

fishing during the high whale use

period, NMFS does not propose closing

the area to lobster pot fishing at this

time, as the frequency of right whale

sightings in this area (already closed to

gillnet gear for groundfish conservation

measures) is quite low and the fishing

effort minimal. Comments on this

decision are requested.

The Team Report provided comments

on the lobster pot fisheries in the Great

South Channel critical habitat area

outside of the known high right whale

use period. NMFS proposes to restrict

lobster fishing in the Great South

Channel right whale critical habitat area

from January 1 through March 31 and

July 1 through December 31 of each year

(beginning in 1998). Proposed

restrictions during this time period

include only sinking or modified

sinking buoy lines, and breakaway

buoys or weak buoy lines.

Stellwagen Bank/Jeffreys Ledge Area:

NMFS proposes to define the

Stellwagen Bank/Jeffreys Ledge (SB/JL)

area as the area delineated by the

following points: the shoreline at 431⁄2°

00′ N out to 70° W, then south along that

line to 42° N, then west along that line

to the Massachusetts shoreline at the

western end of Cape Cod Bay, excluding

right whale critical habitat. The Team

Report includes comments indicating a

different northern boundary (43°15′

rather than 43°30′). The northern and

eastern boundaries proposed here are

consistent with one of the groundfish

area closures in the Northeast

Multispecies Fishery Management Plan.

Based on the Team Report and

subsequent comments regarding this

area, NMFS proposes to restrict lobster

fishing in the SB/JL area from January

1 through December 31 of each year

(beginning in 1998). Proposed

restrictions during this time period

include sinking groundline, sinking or

modified sinking buoy lines, and

breakaway buoys or weak buoy lines.

Fishers should be aware that

humpback and/or right whales are

present in the SB/JL area most months

of the year. If the gear modifications are

not sufficient to reduce serious injury

and mortality to right and humpback

whales to achieve the 6-month PBR goal

or the 5-year ZMRG goal, additional

restrictions or closures of certain

portions of SB/JL may be necessary.

All Other Areas throughout the East

Coast Range of the American Lobster

Pot Fishery not Addressed by Previous

Measures: NMFS proposes to restrict

fishing with American lobster pot gear

from January 1 to December 31 in all

other U.S. state and Federal waters

north of 41° N latitude and from

December 1 to March 31 in all state and

Federal waters south of 41° N latitude.

Beginning January 1, 1998, NMFS

proposes to restrict these areas to allow

only lobster pot gear that has sinking

buoy lines or modified sinking buoy

lines. NMFS requests comments on the

possible exemption of waters landward

of barrier islands, such as those in New

Jersey and North Carolina, and other

shallow water areas where whales are

less likely to occur.
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16527

New England Multispecies Sink Gillnet

Fishery

In addition to the buoy line

requirements and contingency measures

described above for all fisheries, NMFS

proposes the following area-specific

measures. Consistent with the

comments of the Team Report, NMFS

proposes a suite of modifications

specific to sink gillnets. The purpose of

these modifications is to maximize the

probability that a whale will be able to

break free of a sink gillnet. The

modifications include prohibiting

floating line everywhere except the

headrope (cork line) and the bottommost section of the buoy line, placing

weak links between the net panels on

the headrope and footrope (lead line) to

reduce amount of gear attached to whale

in case of entanglement, increasing

length of the lines which connect the

net to the anchor to maximize the

holding power of the anchors, and

limiting the thickness of headrope to

enhance the likelihood that it will part

when encountered by a whale. These

measures would be implemented

simultaneously because weak links are

not expected to function properly

without sufficient anchoring and scope

of the groundline/bridle, and using

more anchoring power without weak

links could result in increased rate of

drowning. Industry TRT members

indicated that some of these

modifications, such as an increased

bridle-to-anchor length and increased

anchoring power, are already in use to

minimize loss of gear to mobile gear.

NMFS solicits comments on the likely

effectiveness of this suite of gear

modifications and in particular on

minimal breaking strengths of weak

links which could be used while still

allowing fishermen to haul their gear. In

addition, NMFS also requests comments

on typical depth or height of gillnets

and whether that depth warrants the

requirement of weak links in the

footrope as well as the headrope.

Cape Cod Bay Critical Habitat Area:

The Team Report treated state and

Federal waters of right whale critical

habitat in Cape Cod Bay separately and

did not reach consensus on gillnet

restriction measures in the Federal

portion of these waters. The Team

Report discussed adopting for the state

waters of Cape Cod Bay critical habitat

the area and gear restrictions

implemented by the Commonwealth of

Massachusetts for this same area. NMFS

supports the regulations adopted by the

Commonwealth of Massachusetts for

protecting right whales from

entanglement in critical habitat within

Massachusetts state waters of Cape Cod

Bay. To provide consistent protection

for right whales throughout the critical

habitat area, NMFS proposes to treat

state and Federal waters as one unit in

Cape Cod Bay. NMFS intends to work

closely with the Commonwealth of

Massachusetts as the State regulations,

which were implemented under

emergency authority, are reviewed and

modified through regular rulemaking

procedures. NMFS will review State

regulations in the context of this take

reduction plan and its inherent goals.

Based on comments in the Team

Report, NMFS proposes that the entire

right whale critical habitat in Cape Cod

Bay be closed to sink gillnet gear from

January 1 through May 15 of each year,

until the Assistant Administrator

determines that alternative fishing

practices or gear modifications which

significantly reduce the risk of serious

injury or mortality to whales have been

developed. As noted above, if whale

concentrations outside the usual ‘‘highuse’’ period warrant additional action,

the area may be closed for additional

periods, through a publication in the

Federal Register.

To provide additional protection for

all large whales, NMFS proposes to

restrict sink gillnet fishing in the entire

Cape Cod Bay critical habitat area from

May 16 through December 31 of each

year to allow only sink gillnet gear that

has been modified as described above.

Great South Channel Critical Habitat

Area: Based on comments in the Team

Report, NMFS proposes to close the

portion of right whale critical habitat

east of Loran C line 13710/43940

(Northwest Boundary) and 13710/43650

(Southwest Boundary) from April 1

through June 30 to sink gillnet gear until

the Assistant Administrator determines

that alternative fishing practices or gear

modifications have been developed

which reduce the risk of serious injury

or mortality to whales to acceptable

levels. As discussed above, if whale

concentrations outside the usual ‘‘highuse’’ period warrant additional action,

the area may be closed.

NMFS recognizes that the Team

Report did not recommend a complete

closure of the entire Great South

Channel critical habitat area to sink

gillnets. In the narrow band west of the

Loran C points 13710/43940 and 13710/

43650, the Team considered the

likelihood of entanglement of right

whales remote. A recent NMFS analysis

indicates that only 3% of historical right

whale sightings occurred along that

western edge of critical habitat. Further,

this band is economically important to

the sink gillnet fishery.

Based on comments in the Team

Report, NMFS proposes to restrict sink

gillnet fishing in the portions of the

Great South Channel right whale critical

habitat area east of the Loran C 13710

line from January 1 to March 31 and

July 1 to December 31 of each year and

the portion of right whale critical

habitat west of Loran C 13710/43940

(Northwest Boundary) and 13710/43650

(Southwest Boundary) (the ‘‘sliver

area’’) from January 1 through December

31 of each year to allow only sink gillnet

gear that has been modified according to

the specifications described above.

Stellwagen Bank/Jeffreys Ledge: This

area is defined as for the lobster pot

fishery. Based on comments in the Team

Report, NMFS proposes year-round

restrictions in the SB/JL area to allow

only sink gillnet gear that has been

modified according to specifications

described above. Fishers should be

aware that humpback and/or right

whales are present in the SB/JL area

most months of the year and that if gear

modifications are not sufficient to

reduce serious injury and mortality to

right and humpback whales to levels

required under the MMPA, additional

restrictions or closures may be

necessary.

All Other Areas throughout the Range

of the Northeast Sink Gillnet Fishery not

Addressed by Previous Measures: NMFS

proposes to restrict fishing with sink

gillnet gear from January 1 to December

31 in U.S. state and Federal waters east

of 72° 30′ W (dividing line between

Northeast sink gillnet fishery and midAtlantic coastal gillnet fishery) and

north of a line running due east from the

North Carolina/South Carolina border.

Beginning January 1, 1998, NMFS

proposes to restrict sink gillnet fishing

in this area to gear with sinking buoy

lines or modified sinking buoy lines,

and breakaway buoys or weak buoy

lines. Beginning in 1999, the full suite

of measures described above are

proposed to be required.

Since gillnet fisheries in Long Island

Sound (inside a line from Orient PointPlum Island-Fishers Island-Watch Hill),

and waters landward of the first bridge

embayments in Rhode Island and

southern Massachusetts are classified as

Category III inshore gillnet fisheries

rather than as part of the Category I

northeast sink gillnet fishery, those

inshore fisheries would be exempt

under this proposed rule.

U.S. Mid-Atlantic Coastal Gillnet

Fisheries

All anchored gillnet fisheries: NMFS

proposes to restrict fishing with all

anchored gillnet gear from December 1

through March 31 in mid-Atlantic

waters from Shinnecock Inlet on the

southern Long Island, New York shore
16528 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

south to a line running due east from

the North Carolina-South Carolina

border. Mid-Atlantic gillnet fisheries

classified as Category III inshore gillnet

fisheries are exempt from this proposed

rule. NMFS requests comments on the

possible exemption of waters landward

of barrier islands, such as those in New

Jersey and North Carolina, and other

shallow water areas where whales are

less likely to occur.

Beginning January 1, 1998, and in

addition to the buoy line requirements

and contingency measures described

above for all fisheries, NMFS proposes

to restrict sink gillnet fishing in this area

during the period from December 1

through March 31 to gear that has been

modified according to the suite of

measures outlined above for Northeast

sink gillnet gear.

Beginning in 1998, with respect to

mid-Atlantic coastal gillnet anchored

gear that is not sink gillnet gear, NMFS

proposes to require only the standard

requirements for sinking buoy lines or

modified sinking buoy lines, and

breakaway buoys or weak buoy lines

during the winter/spring period from

December 1 through March 31. Weak

links are not proposed for anchored

gillnets other than sink gillnets because

the weak link system is not designed for

nets fished on the surface or in the

upper 2⁄3 of the water column.

Floating/drift gillnets: For the area

and time outlined above, NMFS

proposes to require all vessels using

driftnets to haul all such gear and stow

all such gear on the vessel before

returning to port.

Southeast U.S. Driftnet Fishery

Based on comments in the Team

Report, NMFS proposes that the area

from Sebastian Inlet, FL (27°51• N

latitude) to Savannah, GA (32° N

latitude) out to 80° W longitude, be

closed to driftnet fishing, except for

strikenetting, each year from November

15 to March 31. Strikenetting would be

permitted under certain conditions set

forth in the rule. Most of this area is

right whale critical habitat.

Also based on comments in the Team

Report, NMFS proposes to require

observer coverage for the use of driftnets

in the area from West Palm Beach

(26°46.5′ N latitude) to Sebastian Inlet

(27°51′ N latitude), from November 15

to March 31 of each year. Notifications

must be provided at least 48 hours prior

to the fishing trip so that arrangements

for an observer may be made. An

observer must be taken on a fishing trip

in this area if requested by NMFS.

Reduction of Inactive Fishing Gear as

Marine Debris. The Team Report

discusses measures that could be taken

to minimize the amount of fishing gear

that has been damaged and set adrift,

either by storms or user group conflicts,

as it is believed that some marine

mammal entanglements may involve

such gear. Specific measures in the

Team Report include: (1) Encourage

participants in all fisheries to avoid

discarding gear at sea; (2) encourage

vessel operators to retrieve and deposit

on shore any inactive gear encountered

(existing penalties that would

discourage this should be eliminated);

(3) require any commercial fishing

vessel that accidentally captures or

snags fixed gear in a trawl or by other

means or sets fixed gear adrift to retrieve

all such gear and deposit it on shore

(existing penalties that would

discourage this should be eliminated);

(4) require that such gear deposited on

shore which carries any identifying

markings be reported to the appropriate

authorities. A system for tracking such

gear should be established, allowing

owners to retrieve gear; (5) NMFS

should take appropriate measures for

reducing gear conflicts that can result in

gear set adrift (examples are

implementation of the Gear Conflict

Resolution for Offshore New England

and the use of Vessel Tracking Systems);

(6) require use of biodegradable,

corrodible, or other rapidly degrading

gear components where appropriate; (7)

establish dockside disposal/recycling

facilities at all ports used by commercial

fisheries; and (8) make use of existing

programs for recycling and disposing of

inactive gear.

NMFS agrees that the reduction of

‘‘ghost’’ gear may reduce the number of

entanglements of marine mammals in

fishing gear. NMFS intends to notify all

Atlantic fisheries permit holders of the

importance of bringing gear back to

shore to be discarded properly.

Additionally, NMFS proposes to review

regulations currently in place

concerning fishing gear or fishing

practices that may increase or decrease

marine ‘‘ghost’’ gear and to determine

what additional measures may be useful

in reducing the potential for whale

entanglement by this gear.

NMFS has not included a Vessel

Tracking System provision in this

proposed rule pending the outcome and

final disposition of this electronic

monitoring system within the

commercial fishing industry. NMFS

invites comments on this issue. This

system may encourage mobile gear

vessels to avoid towing through areas

where fixed gear is set and may

encourage vessels to pick up damaged

and inactive gear.

Disentanglement Efforts. When

entangled in most fishing gear, other

than extremely heavy or anchored gear,

whales may swim off with some or all

of the gear still trailing. Some whales

may eventually free themselves or

survive for substantial periods of time

while trailing gear, but the continued

survival of such animals may be

severely jeopardized by this gear.

In 1984, the Center for Coastal Studies

(CCS) in Provincetown, MA developed

an approach for disentangling freeswimming large whales. This process

can be very dangerous, and CCS is

currently the only organization

authorized to attempt such

disentanglements on the U.S. Atlantic

coast. NMFS has contracted CCS to

perform this service in the Northeast

area by supporting current efforts and

the establishment of a regional

Disentanglement Network (Network).

Criteria for participation in the Network

have been established, and experienced

teams have been formed for New

England waters. Additionally, rapid

response capability has been developed

to allow deployment to remote coasts or

at sea. A relationship has been

established with the Canadian

Department of Fisheries and Oceans and

whale biologists operating in the Bay of

Fundy to respond to entanglement

events in Canadian waters of the Gulf of

Maine. Local teams have been identified

for other areas along the U.S. Atlantic

coast. These resources were developed

primarily for response to entangled right

whales.

The Team Report discussed the

following actions to improve and

expand the effort to disentangle large

whales along the east coast of the U.S.:

(1) Continue authorization and support

for the current Disentanglement

Network; (2) expand the Network to the

U.S. Mid-Atlantic region by training

identified response/support teams in

Virginia, North Carolina and the

Southeastern U.S. right whale critical

habitat regions, and by developing

protocols appropriate to each region; (3)

support education and training of

fishermen in identification, reporting

and disentangling large whales, where

appropriate, in all identified risk areas;

(4) increase monitoring of at-risk whales

in the region through opportunistic and

dedicated surveys; (5) request support

from the U.S. Coast Guard (USCG) in the

SE Region similar to the level of support

committed in the NE region, to achieve

a coordinated effort; (6) seek support

and coordination with other agencies

with similar or overlapping

responsibilities; (7) ensure fishermen

are informed of requirements for

reporting and indemnification resulting

from the issuance of incidental take

permits, and explore further possible
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16529

incentives for reporting entangled

whales; (8) allow the Network to

authorize individuals to stand by or

attach tracking equipment to entangled

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

approach regulation may affect right

whale protection; (10) consider

reimbursing vessel operators for real

expenses or loss of regulated fishing

days when standing by a whale

confirmed by an authorized group as

entangled; (11) work with appropriate

groups to ensure accurate, thorough and

standardized reporting of entanglements

and results in a central database; and

(12) develop an analytical approach for

future entanglement reports which

considers an increase in reporting due

to the actions referenced above, and

which counts successful

disentanglements in assessments of take

reduction.

NMFS intends to continue its

authorization of and work to improve

the current Disentanglement Network.

NMFS has been working cooperatively

with the Network and the USCG to

extend the disentanglement efforts into

mid-Atlantic and Southeastern waters.

Currently, NMFS provides funds only

for disentanglement in the Northeast.

Disentanglement efforts have already

been initiated outside New England

waters; for example, during the winter

of 1996, NMFS, USCG, the states of

Georgia and Florida, the New England

Aquarium and the Center for Coastal

Studies worked cooperatively to attempt

disentanglement and subsequent

tracking of a right whale off the east

coast of Florida. NMFS will work with

CCS to form local ‘‘first response’’ teams

which can respond to entanglements in

other areas and of other species prior to

(or in some cases in lieu of) dispatching

the CCS rapid response teams. Included

among improvements to the

Disentanglement Network will be a

strong educational component, to train

fishers to identify and report entangled

large whales. Such education will be

included during skippers workshops

planned under the ‘‘Education and

Outreach’’ portion of this ALWTRP.

Additional training specific to the

Disentanglement Network may also be

held separately, as needed. NMFS is

also funding and/or working

cooperatively with other groups to

expand the current survey effort to

better monitor at-risk areas. For

example, year-round aerial and vessel

surveys in the mid-Atlantic have

recently been funded. These surveys

will increase opportunities for sighting

entangled whales.

NMFS has been working

cooperatively with the USCG in the

Southeast U.S. as well as in the

northeast to provide protection to

whales. The USCG helps fund the

southeast and northeast Early Warning

Systems, which involve an aerial

monitoring program designed to help

avoid collisions between vessels and

right whales on their calving grounds.

The USCG also has been very helpful in

providing vessel support for

disentanglement efforts and carcass

recovery in the southeast. In order to

formalize this cooperative effort, NMFS

may enter into a Memorandum of

Understanding with the southeastern

USCG districts, as has been

accomplished with the First Coast

Guard District operating in the

northeast. NMFS is already cooperating

extensively with coastal state agencies

such as the Georgia Department of

Environmental Resources and the

Florida Department of Environmental

Protection in disentanglements and

other right whale recovery efforts.

NMFS will continue working

cooperatively with these state agencies,

and will seek to expand such efforts to

other state agencies involved with

endangered marine species issues.

Recently, the states of Maine and

Massachusetts have been working with

NMFS and the Disentanglement

Network to develop whale identification

materials and information on

disentanglement to be distributed to

vessels for use at sea.

NMFS understands that cooperation

by fishermen and others in reporting

entangled whales is essential for the

ultimate success of the ALWTRP.

Reporting entanglement events creates

the opportunity for the successful

disentanglement of a whale that is

entangled in fishing gear and is still

alive. Additionally, reports of entangled

whales, both dead or alive, improves the

information available for assessing the

success of this plan and developing

future measures.

Takes of marine mammals that are not

listed as endangered or threatened are

authorized under section 118 of the

MMPA for vessels that are registered in

the Marine Mammal Authorization

Program. However, takes of endangered

species can only be authorized under

certain conditions specified in section

101(a)(5)(e) of the MMPA and if an

incidental take statement is issued

under the Endangered Species Act

(ESA). Among other requirements,

NMFS must determine that the expected

level incidental serious injury or

mortality of a threatened or endangered

marine mammal resulting from

commercial fishing operations will have

a negligible impact on such stock. Until

these conditions have been met, NMFS

could not authorize takes of endangered

whales, even if a take occurs by a vessel

operating in compliance with the

ALWTRP. Currently, takes from the

western North Atlantic stocks of right,

humpback and fin whales are not

authorized.

Consequently, NMFS does not have

the authority to exempt fishers from

ESA provisions that prohibit taking

endangered whales. NMFS does,

however, exercise broad prosecutorial

discretion in deciding on a case by case

basis when to prosecute and what level

of penalty to seek. When exercising

such discretion, NMFS will consider

whether the taking was reported

promptly, and will regard timely

reporting as a mitigating factor when

determining the appropriate

enforcement response. This approach

balances NMFS’ statutory duty to

endorse provisions of the ESA with its

strong desire to minimize non-reporting

for fear of prosecution.

NMFS has considered the potential

effects of the 500-yard interim final rule

on future disentanglement efforts, and

has incorporated into that rule an

exception to allow approaches to

investigate a right whale or injury or to

assist in disentanglement provided that

permission is received from NMFS

designee prior to the approach. In

addition, in order to facilitate greater

success of disentanglement events,

NMFS is considering other actions so

that vessels operating in the Northeast

Multispecies and American lobster

fisheries may assist in disentanglement

efforts. NMFS has no mechanism for

authorizing disbursement of funds for

reimbursing vessel operators for

expenses, but encourages conservation

organizations to consider implementing

such a program. NMFS will approach

the fishery management councils

regarding reimbursing any loss of

regulated fishing days resulting from a

fisher’s participation in a

disentanglement effort. A similar

provision, called the ‘‘good samaritan’’

provision, exists in several fishery

management plans to obtain credit for

fishing time lost while assisting search

and rescue operations.

NMFS currently maintains a

centralized entanglement data base, and

intends to work cooperatively with

appropriate groups to improve the

quality of the data and standardize

reporting. Improvements to the current

entanglement data base would include

incorporation of supplementary data

from original sources and information

from examination of gear seen on or

removed from whales. Tracking of

successful disentanglements are to be

incorporated in the data base, and
16530 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

would be considered in assessing

progress of take reduction measures.

As stated above, not all whale

entanglements result in serious injury or

mortality. Monitoring of scarification

and comparison of historic levels in the

population, as noted by the Team, may

help provide a basis for determining

whether the various take reduction

measures proposed in this plan have

been effective in decreasing levels of

interaction between whales and fishing

gear.

Supplementary Take Reduction

Initiatives

Fisher Education and Outreach

The Team Report acknowledges that

effective implementation of the

ALWTRP will require the active

participation of a majority of the fishing

industry. To encourage this, the Team

Report suggests that NMFS form an

advisory group to assist in the

implementation of educational

workshops and outreach strategies to

disseminate information to fishermen

on measures to reduce large whale

entanglements. The report recommends

that education and outreach workshops

be held to: (1) Inform fishermen of

provisions of the ESA and MMPA, as

well as intent and requirements of the

ALWTRP; (2) train fishermen in

deployment and maintenance of

proposed gear modifications; (3)

distribute fact sheets for use in whale

identification and provision of

information on seasonal distribution

patterns; (4) train fishermen in protocol

for whale disentanglement; (5) supply

observer, stranding and entanglement

data to fishermen; (6) encourage timely

reporting of marine mammals that may

be entangled in fishing gear; and (7)

solicit information from fishermen on

how to reduce marine mammal

interactions. The Team Report

recommends that such workshops be

held throughout the Northeast, MidAtlantic and Southeast regions of the

U.S. Atlantic coast, and that fishermen

be notified by mail of dates, locations

and times of the proposed workshops.

The Team Report also recommends that

public relations materials should be

developed and distributed through

newsletters, newspapers, radio,

television news, and the Internet.

NMFS concurs with the

recommendations of the Team Report to

conduct fishermen education

workshops, as well as other outreach

strategies. Although NMFS does not

propose to form a formal advisory

group, NMFS intends to seek assistance

concerning the workshops from

SeaGrant and other groups that are

experienced in outreach on marine

issues. Workshops are proposed to be

held throughout the areas of the affected

fisheries to inform fishers of gear and

area requirements as well as to address

other topics as outlined in the Team

Report.

Other recommendations contained in

the report include promotion of

‘‘responsible fishing practices.’’ For

example, the Team Report discusses the

following measures with respect to the

mid-Atlantic gillnet fisheries: (1)

Gillnets and other fishing gear should

not be set near whales; (2) gear should

be removed as soon as possible if

whale(s) move into the area being

fished; (3) fishers using un-anchored

gillnet gear during the high-risk period

(December 1—March 31) should remain

with actively fishing gear; and (4) any

observed entanglements should be

reported. NMFS proposes that such

practices be discussed and supported

during the fishermen education

workshops described above.

Monitoring of Whale Stock Distribution

and Entanglements

The Team Report acknowledges that

the long-term success of the plan

depends on the ability to monitor

interactions between whales and

fisheries, as well as an improved

knowledge of whale distribution and

movements. The Team Report asserts

that successful real-time monitoring of

whale distribution could lead to better

dynamic management (i.e., flexible area

closures and/or gear modifications

required during certain periods in

certain areas) designed to avoid or

respond to entanglements of large

whales in fishing gear. The Team Report

comments that data collection and

monitoring programs should be created

where needed, or existing programs

improved to achieve a dynamic

approach to reducing large whale

entanglements, as well as to assess the

success of the ALWTRP. The following

items were included in the Team Report

as significant aspects of an overall take

reduction program:

Whale Distribution and Movement

Patterns

Issues to be addressed: (1)

Distribution of whales; (2) movement

patterns; and (3) stability of distribution

in high-use/critical habitat areas.

Possible measures to address these

issues include establishing long-term

and real time monitoring of whale

distribution via aerial and vessel

surveys, telemetry and photo

documentation.

Whale Entanglements and Mortalities

Issues to be addressed: (1)

Mechanisms of whale entanglements;

(2) geographic areas and portions of

water column where whales become

entangled; (3) gear whales are entangled

in, rate of entanglement, serious injury

and mortality; (4) effect on population

size and recovery; (5) survivorship of

entangled whales; and (6) survivorship

of disentangled whales. Possible

measures to address these issues are: (1)

train personnel to recognize signs of

entanglement-related injuries and

improve stranding report consistency

and accuracy; (2) establish repository for

gear removed from stranded and/or

entangled whales and develop process

for examination and identification; and

(3) develop entanglement/interaction

reporting protocols to encourage fisher

participation in monitoring and

disentanglement efforts.

Fishing Effort

Issues to be addressed: (1) Status of

current information on occurrence and

distribution regarding effort and gear

type; and (2) identification of

information needed for effective

monitoring. Possible measures to

address these issues are: (1) Improve

reporting of fishing effort for area fished,

amount of gear, and species targeted, by

day; (2) develop improved methods for

gear identification and reporting of gear

loss; (3) examine fishing practices other

than those considered in this ALWTRP

for potential impacts to large whales;

and (4) improve fishery participation in

data collection needs.

Dynamic Management

Issues to be addressed: (1)

Surveillance-based management is

useful for supporting research for

implementation of the ALWTRP; and (2)

research should echo the State of

Massachusetts Plan for reducing right

whale takes. Possible measures to

address these issues are: (1) NMFS

should work with appropriate agencies

and research groups to develop a

surveillance-based management plan to

protect right whales; and (2) establish a

narrow and appropriately focused

system of dynamic management.

NMFS agrees that the issues raised are

important elements in understanding

the nature of whale entanglements and

developing subsequent management

measures to reduce such entanglements.

NMFS currently monitors whale

distribution and movement patterns,

and supports additional efforts for

photo-identification, life history and

other studies. Real-time monitoring of

whale movements for fishery
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16531

management purposes is being used by

the State of Massachusetts in

conjunction with the newly established

early warning system for ship strikes in

Cape Cod Bay. The success of this

program will be reviewed and may be

expanded to other areas, if appropriate.

NMFS plans to seek ways to

incorporate the comments in the Team

Report regarding entanglements and

resulting mortalities into the existing

Disentanglement Network efforts.

Additional research may be supported

through alternate funding sources such

as Saltonstall-Kennedy grants or other

such sources. Improving current

information on fishery participation in

data collection, methods for gear

identification, and reporting gear loss

will be effected through a combination

of regulations and fisher education and

outreach workshops. NMFS proposes to

investigate and consult with the

appropriate state agencies to improve

information on fishery effort

distribution. Monitoring effort in terms

of the amount of gear present in the

water (e.g., number of vertical lines or

length of net) is an important element of

determining whether effort reduction

measures have been successful, or

whether it has simply been displaced to

other areas where whale entanglements

may still occur.

Joint Initiatives With Canada to Reduce

Whale Bycatch in Commercial Fisheries

Large whales are known to be taken

in lobster, gillnet, trap and weir

fisheries in Canadian waters. The Team

Report recognizes that regulatory and

management regimes differ between

Canada and the U.S., and agrees with

the position of Canada that there is need

to develop similar and complementary

strategies to reduce the incidental take

of large whales by commercial fisheries

in Canadian Atlantic waters. It is the

understanding of the Team that the

Canadian Government is considering

legislation which, if implemented,

would require recovery plans for whale

species identified as endangered,

threatened or vulnerable. Canada is

expected to establish a consultative

program similar to the Team. This

program would develop, within existing

regulatory and management

frameworks, programs that are

compatible and complementary to the

measures proposed by the Team. The

Team Report comments that once the

ALWTRP is open to public comment,

NMFS should initiate discussions with

the Canadian Department of Fisheries

and Oceans (DFO) to: (1) Obtain

comments from DFO on the ALWTRP;

(2) urge Canada to develop a joint

recovery plan under its Endangered

Species Act, when final; (3) institute

mechanisms to reduce large whale

entanglements in Canadian waters, as

well as a means to evaluate the

effectiveness of any proposed take

reduction strategies; and (4) outline a

timetable for meetings between NMFS

officials, Team representatives and DFO

to review progress toward reducing

entanglements of large whales in U.S.

and Canadian waters.

NMFS has been working

cooperatively with the DFO towards

take reduction efforts for both harbor

porpoise and large whales for some

time. NMFS anticipates continuation of

these cooperative efforts. DFO

participated as an observer on the Team,

and indicated that Canada is expected to

enact a new Endangered Species Act.

Under this act, DFO would develop a

joint recovery plan with NMFS, and

form their own TRT. NMFS intends to

continue to support and encourage these

conservation efforts, and will continue

to invite DFO’s participation on the

Team as a means of promoting effective

bycatch reduction measures for large

whales throughout western North

Atlantic waters.

Exploration of Market Incentives to

Reduce Whale Bycatch in Commercial

Fisheries

The Team discussed the formation of

a committee of Team members and

other interested parties to explore and

develop incentives, including market

and other voluntary incentives, for

reducing entanglements of large whales.

Also discussed was whether this

committee should develop a process for

incorporating these incentives into the

take reduction effort. The committee, as

envisioned by the Team, would include

persons with experience or expertise in

conservation, market-based incentives,

seafood processing and distribution, and

various fishing strategies.

NMFS has not proposed to include

this aspect of the Team’s Report in the

plan. NMFS believes it is more

important to devote its resources to

other aspects of this plan. Such efforts

may be considered at future team

meetings. Members of the Team and/or

other interested parties may form a

committee to investigate market or other

voluntary incentives to reducing whale

entanglements to present to the Team

for consideration.

Classification

This proposed rule does not contain

new collection-of-information

requirements subject to the Paperwork

Reduction Act.

NMFS prepared an Initial Regulatory

Flexibility Analysis (IFRA) that

describes the impact this proposed rule,

if adopted, would have on small

entities. The American lobster pot, New

England multispecies sink gillnet, MidAtlantic coastal gillnet, and Southeast

driftnet fisheries are directly affected by

the proposed action and are composed

primarily of small business entities. The

number of state and federal permit

lobster permit holders is estimated to be

13,000. The numbers of vessels in the

New England multispecies sink gillnet,

Mid-Atlantic coastal gillnet, and

Southeast shark driftnet fisheries are

estimated to be 350, 650, and 10,

respectively. The proposed rule does

not include reporting or recordkeeping

requirements, but does include

requirements that fishing gear be

marked and that gear be modified in

various ways to reduce potential

interactions with large whales. In

certain cases, area closures are

proposed.

Currently, the American Lobster

Fishery, the New England Multispecies

Fishery, the weakfish and striped bass

portion of the mid-Atlantic coastal

gillnet fishery, and the Atlantic shark

fishery are subject to Federal regulations

under 50 CFR Part 649, Subpart F of

Part 648, Part 697, and Part 678,

respectively. This proposed rule is

designed to complement those existing

regulations and fishery management

objectives by reducing the bycatch of

large whales in these fisheries. A variety

of regulatory alternatives were

considered, including no action, area

closures, and various gear modifications

and restrictions as discussed above.

With respect to some critical habitat

areas, area closures are proposed in

order to provide the necessary level of

protection for the critically endangered

northern right whale. In most cases,

however, gear modifications represent

the preferred alternative; the plan was

designed to achieve the goals of the

MMPA while minimizing the economic

impact on small entities.

The Assistant Administrator for

Fisheries, NOAA, prepared a draft

environmental assessment (draft EA) for

this proposed rule under the National

Environmental Policy Act. A copy of the

draft EA and the IFRA is available upon

request (see ADDRESSES).

References

Blaylock, R.A., J.W. Hain, L.J. Hansen, D.L.

Palka, and G.T. Waring. 1995. U.S. Atlantic

and Gulf of Mexico Marine Mammal Stock

Assessments. NOAA Technical

Memorandum NMFS, NOAA–TM–NMFS–

SEFSC–363. 211p.

Team Report. 1997. Draft Atlantic Large

Whale Take Reduction Report. Report

prepared by the Atlantic Large Whale Take

Reduction Team and submitted to the
16532 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

National Marine Fisheries Service February

4, 1997. 79pp.

List of Subjects in 50 CFR Part 229

Administrative practice and

procedure, Confidential business

information, Fisheries, Marine

mammals, Reporting and recordkeeping

requirements.

Dated: April 1, 1997.

Charles Karnella,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 229 is proposed

to be amended to read as follows:

PART 229—AUTHORIZATION FOR

COMMERCIAL FISHERIES UNDER THE

MARINE MAMMAL PROTECTION ACT

OF 1972

1. The authority citation for part 229

continues to read as follows:

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

2. In section 229.2, definitions of

‘‘American lobster or Lobster’’,

‘‘Anchored gillnet’’, ‘‘Breakaway buoy’’,

‘‘Bridle’’, ‘‘Buoy line’’, ‘‘Driftnet, drift

gillnet or drift entanglement net’’, ‘‘Fish

with or fishing with’’, ‘‘Footrope’’,

‘‘Gillnet’’, ‘‘Groundline’’, ‘‘Headrope’’,

‘‘Lobster pot’’, ‘‘Lobster pot trawl’’, MidAtlantic coastal waters’’, Northeast

waters’’, ‘‘Other anchored gillnet’’,

‘‘Sink gillnet’’, ‘‘Sinking line’’,

Southeast waters’’, ‘‘Spotter plane’’,

‘‘Stellwagen Bank/Jeffreys Ledge area’’,

‘‘Strikenet or to fish with strikenet

gear’’, ‘‘Tended gear or tend’’, ‘‘U.S.

waters’’, ‘‘Weak buoy line’’, and ‘‘weak

link’’ are added in alphabetical order to

read:

§ 229.2 Definitions.

* * * * *

American lobster or lobster means the

species Homarus americanus.

Anchored gillnet means any gillnet

gear, including sink gillnets, that is set

anywhere in the water column and

which is anchored, secured or weighted

to the bottom.

* * * * *

Breakaway buoy means a buoy line

equipped with a breakable section near

the top (buoy) end of the line that will

part when subjected to certain pull

pressure and, after parting, will result in

a knotless end, not thicker than the

diameter of the line.

Bridle means the lines connecting a

gillnet to an anchor or buoy line.

Buoy line means a line connecting

fishing gear in the water to a buoy at the

surface of the water.

* * * * *

Driftnet, drift gillnet, or drift

entanglement gear means gillnet gear

that is not anchored, secured or

weighted to the bottom.

Fish with or fishing with means to use,

set, or haul back gear or allow gear that

is set to remain in the water.

* * * * *

Footrope means the line, weighted or

otherwise, to which the bottom edge of

a gillnet is attached.

Gillnet means fishing gear consisting

of a wall of webbing or nets, designed

or configured so that the webbing or

nets are held approximately vertically in

the water column designed to capture

fish by entanglement, gilling, or

wedging. Gillnets include gillnets of all

types such as sink gillnets, other

anchored gillnets, and drift gillnets.

Groundline, with reference to lobster

pot gear, means a line connecting

lobster pots in a lobster pot trawl, and,

with reference to gillnet gear, means a

line connecting a gillnet or gillnet bridle

to an anchor or buoy line.

Headrope means the line at the top of

a gillnet from which the mesh portion

of the net is hung.

* * * * *

Lobster pot means any trap, structure

or other device that is placed on the

ocean bottom and is designed to or is

capable of catching lobsters.

Lobster pot trawl means more than

one lobster pot attached to a groundline.

Mid-Atlantic coastal waters means

waters west of the area bounded by the

following points: the southern shoreline

of Long Island, New York at 72°30′W,

then due south to the intersection of

72°30′W with a line running due east

from the North Carolina/South Carolina

border, then due west along that line to

the North Carolina/South Carolina

border.

* * * * *

Northeast waters means those U.S.

waters east of 72°30′W and north of a

line running due east from the VirginiaNorth Carolina border.

* * * * *

Other anchored gillnet means any

anchored gillnet except sink gillnet.

* * * * *

Sink gillnet has the meaning specified

in 50 CFR 648.2.

Sinking line means line that sinks and

does not float at any point in the water

column. Polypropylene line is not

sinking line unless it contains a lead

core.

* * * * *

Southeast waters means waters south

of a line extending due eastward from

the North Carolina/South Carolina

border.

* * * * *

Spotter plane means a plane that is

deployed for the purpose of locating

schools of target fish for a fishing vessel

that intends to set fishing gear on them.

* * * * *

Stellwagen Bank/Jeffreys Ledge area

means the area bounded by the Maine

shoreline at 43°30′ N, then due east to

43°30′N/70°00′ W, then south to 42°00′

N/70°00′W, then due west to the

Massachusetts shoreline, then along the

Cape Cod shoreline to 42°04.8′ N/70°10′

W, then to 42°12′ N/70°15′ W, to 42°12′

N/70°30′ W, to 42°00′ N/70°30′ W, then

due west to the Massachusetts shoreline

at 42°00′N.

Strikenet or to fish with strikenet gear

means a gillnet, or a net similar in

construction to a gillnet, that is

designed so that when it is deployed, it

encircles or encloses an area of water

either with the net, or by utilizing the

shoreline to complete encirclement.

* * * * *

Tended gear or tend means active

fishing gear that is physically attached

to a vessel or to fish so that active gear

is attached to the vessel.

U.S. waters means both state waters

and waters of the U.S. exclusive

economic zone along the east coast of

the United States from the Canadian/

U.S. border southward to a line

extending eastward from the

southernmost tip of Florida on the

Florida shore.

* * * * *

Weak buoy line means a buoy line

that will part when subjected to certain

pull pressure and, after parting, will

result in a knotless end, not thicker than

the diameter of the line.

Weak link means a breakable device

that will part when subjected to certain

pull pressure.

3. In § 229.3, paragraphs (g) through

(j) are added to read as follows:

§ 229.3 Prohibitions.

* * * * *

(g) It is prohibited to fish with lobster

pot gear in the areas and for the times

specified in § 229.32(b) (3), (4), (5), (6)

and (7) unless the lobster pot gear meets

the marking requirements specified in

§ 229.32(b)(1) and complies with the

closures, modifications, and restrictions

specified in § 229.32(b) (2), (3), (4), (5),

(6) and (7).

(h) It is prohibited to fish with sink

gillnet gear in the areas and for the

times specified in § 229.32(c) (3), (4),

(5), (6) and (7) unless the sink gillnet

gear meets the marking requirements

specified in § 229.32(c)(1) and complies

with the closures, modifications, and

restrictions specified in § 229.32(c) (2),

(3), (4), (5), (6) and (7).
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16533

(i) It is prohibited to fish with coastal

gillnet in the areas and for the times

specified in § 229.32(d)(3) unless the

coastal gillnet gear meets the marking

requirements specified in § 229.32(d)(1)

and complies with the restrictions

specified in § 229.32(d) (2) and (3).

(j) It is prohibited to fish with shark

driftnet gear in the areas and for the

times specified in § 229.32(e) (2) and (3)

unless the coastal gillnet gear meets the

marking requirements specified in

§ 229.32(e)(1) and complies with the

restrictions and requirements specified

in § 229.32(e) (2) and (3).

4. A new § 229.32 is added to subpart

C to read as follows:

Subpart C—Take Reduction Plan

Regulations and Emergency

Regulations

§ 229.32 Atlantic large whale take

reduction plan regulations.

(a) Gear marking provisions. (1) Gear

marking required for specified gear. (i)

Specified gear. Specified fishing gear

consists of: lobster pot gear or sink

gillnet gear in Northeast waters; lobster

pot gear or mid-Atlantic coastal gillnet

gear in the mid-Atlantic coastal waters

area; and shark driftnet gear in

Southeast waters.

(ii) Requirement. On or after January

1, 1998 and as otherwise required in

paragraphs (b)(1), (c)(1), (d)(1), and

(e)(1) of this section, any person who

owns or fishes with specified fishing

gear must mark that gear in order to

identify the gear type and the region

where it is used according to the gear

marking code specified by paragraphs

(a)(2) and (3) of this section, unless

otherwise required by the Assistant

Administrator under paragraph (f) of

this section.

(2) Gear-type color code. Gear must be

marked with the appropriate color to

designate gear-type as follows:

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

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

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

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

(3) Region color code. Gear must be

marked with the appropriate color to

designate the area where the gear is set

as follows:

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

Great South Channel critical habitat area ...................................................................................................................................... Red/blue.

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

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

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

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

(4) Markings. Each color of the color

codes must be permanently marked on

or along the line or lines specified under

paragraphs (b)(1), (c)(1), (d)(1), and

(e)(1) of this section. Each color of the

color codes must be marked so that the

colors are clearly visible when the gear

is hauled or removed from the water.

Each color of the region color code must

be between 2 and 3 inches (5.1–7.6 cm)

wide. The gear-type color code must be

between 4 and 5 inches (10.2–12.7 cm)

wide. The color codes must be placed

on the line either in the following order

or in reverse order: The first color of the

region color code, the second color of

the region code, and the gear color code.

All colors of these color codes must be

placed immediately next to each other.

If the color of the line next to a color

code is the same or similar to a color

code, an area of one to 2 inches (2.5–5.1

cm) next to that color code must be

permanently marked with a white band.

In marking or affixing the color code or

associated neutral band, the line may be

dyed or marked with thin colored

whipping line, thin colored plastic or

heat shrink tubing, or other material, or

thin line may be woven into or through

the line, but the marking material must

not be connected by a knot in the line

or increase the diameter of the line by

more than 5 percent of its original

diameter. If the Assistant Administrator

revises the gear marking requirements

under paragraph (f) of this section, the

gear must be marked in compliance

with those requirements.

(5) Inspection of gear and marking. At

least once every 30 days, all specified

gear that is in the water must be hauled

and inspected to ensure that the gear is

properly marked and otherwise in

compliance with this section.

(b) Restrictions applicable to lobster

pot gear. (1) Gear marking requirements.

No person may fish with lobster pot gear

unless that gear is marked by gear type

and region according to the gear

marking code specified under paragraph

(a) of this section. On and after January

1, 1998, all buoy lines must be marked

within 2 feet (0.6 m) of the top of the

buoy line and approximately midway

along the length of each buoy line

according to the gear type and region.

On and after January 1, 1999, each

section of groundline must be marked

approximately midway between each

pot according to gear type and region.

(2) Gear modifications and

restrictions (i) Type 1 lobster pot gear.

Type 1 lobster pot gear is gear which

complies with the following

requirements:

(A) Multi-pot trawls. It is a multiple

pot trawl consisting of four or more

lobster pots;

(B) Limit on buoy lines. No more than

two buoy lines are used per trawl;

(C) Sinking buoy lines. All buoy lines

are sinking line;

(D) Breakaway buoys or weak buoy

lines. All buoy lines and buoys comply

with one of the following:

(1) The buoy line is attached at the

top of the line to a breakaway buoy.

Unless the Assistant Administrator

revises the gear requirements under

paragraph (f) of this section, the

breakaway buoy must be designed with

a breaking strength of no more than 150

pounds (68 kg); or

(2) The buoy line has a weak buoy

line that is at least as long as the depth

of the water at mean high water, is

attached to the buoy at the top of the

line, and is attached to a functional

buoy line resting on the ocean bottom at

the bottom of the weak buoy line.

Unless the Assistant Administrator

revises the gear requirements under

paragraph (f) of this section, the weak

buoy line must be designed with a

breaking strength of no more than 150

pounds (68 kg); and

(E) Sinking groundline. All

groundlines are sinking line.

(ii) Type 2 lobster pot gear. Type 2

lobster pot gear is gear which complies

with the following requirements.

(A) Limit on buoy lines. No more than

one buoy line is used per trawl

consisting of fewer than four pots, and

no more than two buoy lines are used

on any trawl consisting of four or more

pots; and

(B) Sinking buoy lines, breakway

buoys or weak buoy lines, and sinking

groundline. The gear complies with the

gear requirements of paragraph (b)(2)(i)

(C), (D) and (E) of this section.

(iii) Type 3 lobster pot gear. Type 3

lobster pot gear is gear which complies

with the following requirements:

(A) Sinking or modified sinking buoy

lines. All buoy lines are sinking line,

except that floating line may be used if:

(1) The floating line is not attached to

the buoy, is used only in the bottom-
16534 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

most section of the buoy line, and is not

longer than 10 percent of the depth of

the water at mean low water;

(2) The floating line is not larger than 1⁄2 inch (1.27 cm) in diameter; and

(3) The floating line section of the

buoy line is attached to the sinking line

by a splice and not by a knot; and

(B) Limit of buoy lines, breakaway

buoys or weak buoy lines, and sinking

groundline. The gear complies with the

gear requirements of paragraph (b)(2)(i)

(B), (D) and (E) of this section.

(iv) Type 4 lobster pot gear. Type 4

lobster pot gear is gear which complies

with the following requirements:

(A) Sinking or modified sinking buoy

lines. It complies with the requirements

of paragraph (b)(2)(iii)(A) of this section.

(B) Limit on buoy lines and breakway

buoys or weak buoy lines. It complies

with the gear requirements of paragraph

(b)(2)(i) (B) and (D) of this section.

(3) Cape Cod Bay. (i) Restricted area.

The Cape Cod Bay restricted area

consists of the Cape Cod Bay Critical

Habitat area specified under 50 CFR

216.13(b) (copies of a chart depicting

this area are available from the NE

Regional Administrator upon request)

unless the Assistant Administrator

extends that area under paragraph (f) of

this section.

(ii) Type 1 gear restrictions. During

the winter/spring restricted period, no

person may fish with lobster pot gear in

the Cape Cod Bay restricted area unless

the lobster pot gear complies with the

Type 1 gear requirements specified

under paragraph (b)(2)(i) of this section;

or, if the Assistant Administrator revises

the gear requirements under paragraph

(f) of this section, the gear complies

with those requirements. The winter/

spring restricted period for this area is

from January 1 until May 15 of each

year unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(iii) Type 4 gear restrictions. On or

after January 1, 1998, during the

summer/fall restricted period, no person

may fish with lobster pot gear in the

Cape Cod Bay restricted area unless the

lobster pot gear complies with the Type

4 gear requirements specified under

paragraph (b)(2)(iv) of this section; or, if

the Assistant Administrator revises the

gear requirements under paragraph (f) of

this section, the gear complies with

those requirements. The summer/fall

restricted period for this area is from

May 16 through December 31, unless

the Assistant Administrator revises the

restricted period under paragraph (f) of

this section.

(4) Great South Channel. (i) Restricted

area. The Great South Channel

restricted area consists of the Great

South Channel Critical Habitat area

specified under 50 CFR 216.13(a)

(copies of a chart depicting this area are

available from the NE Regional

Administrator upon request) unless the

Assistant Administrator extends that

area under paragraph (f) of this section.

(ii) Closure. During the spring closed

period, no person may fish with lobster

gear in the Great South Channel

restricted area unless the Assistant

Administrator specifies gear

modifications or alternative fishing

practices under paragraph (f) of this

section and the gear or practices comply

with those specifications. The spring

closed period for this area is from April

1 until June 30 of each year unless the

Assistant Administrator revises the

closed period under paragraph (f) of this

section.

(iii) Type 3 gear restrictions.

Beginning on January 1, 1998, during

the winter/summer/fall restricted

period, no person may fish with lobster

pot gear in the Great South Channel

restricted area unless the lobster pot

gear complies with the Type 3 gear

requirements specified under paragraph

(b)(2)(iii) of this section; or, if the

Assistant Administrator revises the gear

modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. The

winter/summer/fall restricted period for

this area is from January 1 through

March 31 and from July 1 through

December 31 of each year, unless the

Assistant Administrator revises the

restricted period under paragraph (f) of

this section.

(5) Stellwagen Bank/Jeffreys Ledge. (i)

Restricted area. The Stellwagen Bank/

Jeffreys Ledge restricted area (copies of

a chart depicting this area are available

from the NE Regional Administrator

upon request) consists of the area

bounded by the Maine shoreline at

43°30′ N, then due east to 43°30′N/

70°00′ W, then south to 42°00′ N/

70°00′W, then due west to the

Massachusetts shoreline, then along the

Cape Cod shoreline to 42°04.8′ N/70°10′

W, then to 42°12′ N/70°15′ W, to 42°12′

N/70°30′ W, to 42°00′ N/70°30′ W, then

due west to the Massachusetts shoreline

at 42°00′N unless the Assistant

Administrator extends that area under

paragraph (f) of this section.

(ii) Type 3 gear restrictions. On or

after January 1, 1998, no person may

fish with lobster pot gear in the

Stellwagen Bank/Jeffreys Ledge

restricted area unless the lobster pot

gear complies with the Type 3 gear

restriction requirements specified under

paragraph (b)(3)(iii) of this section; or, if

the Assistant Administrator revises the

gear modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. This

restriction applies throughout the year

unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(6) Other northern waters. (i)

Description of the other northern waters.

Other northern waters consist of all U.S.

waters north of 41°00′ N except the Cape

Cod Bay restricted area, Great South

Channel restricted areas, and the

Stellwagen Bank/Jeffreys Ledge

restricted area.

(ii) Type 4 gear restrictions. On or

after January 1, 1998, no person may

fish with lobster pot gear in other

northern waters unless the lobster pot

gear complies with the Type 4 gear

restriction requirements specified under

paragraph (b)(2)(iv) of this section; or, if

the Assistant Administrator revises the

gear modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. This

restriction applies throughout the year

unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(7) All other lobster waters. (i)

Description of all other lobster waters.

All other lobster waters consist of all

U.S. waters south of 41°00′ N.

(ii) Type 4 gear restrictions. On or

after January 1, 1998, during the winter

restricted period, no person may fish

with lobster pot gear in all other lobster

waters unless the lobster pot gear

complies with the Type 4 gear

restriction requirements specified under

paragraph (b)(2)(iv) of this section; or, if

the Assistant Administrator revises the

gear modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. The

winter restricted period for this area is

from December 1 through March 31,

unless the Assistant Administrator

modifies the restricted period under

paragraph (f) of this section.

(c) Restrictions applicable to

Northeast sink gillnet gear. (1) Sink

gillnet gear marking requirements. No

person may fish with sink gillnet gear in

Northeast waters unless that gear is

marked by gear type and region

according to the gear marking code

specified under paragraph (a) of this

section. On and after January 1, 1998, all

buoy lines must be marked within 2 feet

(0.6 m) of the top of the buoy line and

approximately midway along the length

of the buoy line according to gear type

and region. On and after January 1,

1999, all net panels in each string of a

sink gillnet must be marked along the

headrope at both ends of each panel

according to gear type and region.
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16535

(2) Gear modifications and

restrictions. (i) Type 1 sink gillnet gear

modifications. Type 1 sink gillnet gear

is gear which complies with the

following requirements:

(A) Sinking line. All groundlines,

bridle lines, anchor lines and other

lines, except the headrope and bottommost section of the buoy lines, are

sinking line;

(B) Headrope specifications. The

headrope:

(1) Is equipped with net floats and the

diameter of the headrope does not

exceed 5/16 inch (0.79 cm); or

(2) Has a foam core and the diameter

of the headrope does not exceed 1⁄2 inch

(1.27 cm);

(C) Sinking or modified sinking buoy

lines. All buoy lines are sinking line,

except that floating line may be used if:

(1) The floating line is not attached to

the buoy, is used only in the bottommost section of the buoy line, and is not

longer than 10 percent of the depth of

the water at mean low water;

(2) The floating line is not larger than 1⁄2 inch (1.27 cm) in diameter; and

(3) The floating line section of the

buoy line is attached to the sinking line

by a splice and not by a knot;

(D) Breakaway buoys or weak buoy

lines. All buoy lines and buoys comply

with one of the following:

(1) The buoy line is attached at the

top of the line to a breakaway buoy.

Unless the Assistant Administrator

revises the gear requirements under

paragraph (f) of this section, the

breakaway buoy must be designed with

a breaking strength of no more than 150

pounds (68 kg); or

(2) The buoy line has a weak buoy

line that is at least as long as the depth

of the water at mean high water, is

attached to the buoy at the top of the

line, and is attached to a functional

buoy line resting on the ocean bottom at

the bottom of the weak buoy line.

Unless the Assistant Administrator

revises the gear requirements under

paragraph (f) of this section, the weak

buoy line must be designed with a

breaking strength of no more than 150

pounds (68 kg);

(E) Weak links. The gillnet is

equipped with weak links on the

headrope and on the footrope between

each net panel. Unless the Assistant

Administrator revises the gear

requirements under paragraph (f) of this

section, each weak link must be

designed with a breaking strength of no

more than 150 pounds (68 kg); and

(F) Securely anchored. Each gillnet is

securely anchored so that the anchor

will not dislodge when there is a pull

on any weak link of more than the

applicable maximum breaking strength

for the weak link.

(G) Groundline. At each end of a

string of net panels, an anchor is

attached to the gillnet by a groundline

and bridle with a combined length

which is equal to or greater than 90 feet

(27.7 m).

(ii) Type 2 sink gillnet gear

modifications. Type 2 sink gillnet gear

is gear which complies with the

requirements of paragraph (c)(2)(i)(C)

and (D) of this section (requirements for

sinking buoy lines or modified sinking

buoy lines, and breakaway buoys or

weak buoy lines).

(3) Cape Cod Bay. (i) Restricted area.

The Cape Cod Bay restricted area

consists of the Cape Cod Bay Critical

Habitat area specified under 50 CFR

216.13(b) (copies of a chart depicting

this area are available from the NE

Regional Administrator upon request)

unless the Assistant Administrator

extends that area under paragraph (f) of

this section.

(ii) Closure. During the winter/spring

closed period, no person may fish with

sink gillnet gear in the Cape Cod Bay

restricted area unless the Assistant

Administrator specifies gear

modifications or alternative fishing

practices under paragraph (f) of this

section and the gear or practices comply

with those specifications. The winter/

spring closed period for this area is from

January 1 until May 15 of each year

unless the Assistant Administrator

revises the closed period under

paragraph (f) of this section.

(iii) Type 1 gear restrictions. During

the summer/fall restricted period, no

person may fish with sink gillnet gear in

the Cape Cod Bay restricted area unless

the gear complies with the Type 1 gear

requirements specified under paragraph

(b)(2)(i) of this section; or, if the

Assistant Administrator revises the gear

requirements under paragraph (f) of this

section, the gear complies with those

requirements. The summer/fall

restricted period for this area is from

May 16 through December 31 of each

year unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(4) Great South Channel restricted

area (excluding the sliver area). (i)

Restricted area. The Great South

Channel restricted area, excluding the

sliver area, consists of the area bounded

by lines connecting the following four

points: 41°02.2′ N/69°02′ W, 41°43.5′ N/

69°36.3′ W, 42°10′ N/68°31′ W, and

41°38′ N/68°13′ W (copies of a chart

depicting this area are available from

the NE Regional Administrator upon

request), unless the Assistant

Administrator extends that area under

paragraph (f) of this section. This

described area excludes the sliver area

specified under paragraph (c)(5)(i) of

this section.

(ii) Closure. During the spring closed

period, no person may fish with sink

gillnet gear in the Great South Channel

restricted area, excluding the sliver area,

unless the Assistant Administrator

specifies gear modifications or

alternative fishing practices under

paragraph (f) of this section. The spring

closed period for this area is from April

1 until June 30 of each year unless the

Administrator revises the closed period

under paragraph (f) of this section.

(iii) Type 1 gear restrictions.

Beginning on January 1, 1998, during

the winter/summer/fall restricted

period, no person may fish with sink

gillnet gear in the Great South Channel

restricted area unless the sink gillnet

gear complies with the Type 1 gear

requirements specified under paragraph

(c)(2)(i) of this section; or, if the

Assistant Administrator revises the gear

modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. The

winter/summer/fall restricted period for

this area is from January 1 through

March 31 and from July 1 through

December 31 of each year, unless the

Assistant Administrator revises the

restricted period under paragraph (f) of

this section.

(5) Great South Channel sliver

restricted area. (i) Restricted area. The

Great South Channel sliver restricted

area consists of the area bounded by

lines connecting the following points:

41°02.2′N/69°02′W, 41°43.5′N/

69°36.3′W, 41°40′N/69°45′W, and

41°00′N/69°05′W, (copies of a chart

depicting this area are available from

the NE Regional Administrator upon

request), unless the Assistant

Administrator extends that area under

paragraph (f) of this section.

(ii) Type 1 gear restrictions. On or

after January 1, 1998, no person may

fish with sink gillnet gear in the Great

South Channel sliver restricted area

unless the sink gillnet gear complies

with the Type 1 gear restrictions

specified under paragraph (c)(2)(i) of

this section or, if the Assistant

Administrator revises the gear

modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. This

restriction applies throughout the year

unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(6) Stellwagen Bank/Jeffreys Ledge

restricted area. (i) Description of the

restricted area. The Stellwagen Bank/

Jeffreys Ledge restricted area (copies of
16536 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

a chart depicting this area are available

from the NE Regional Administrator

upon request) consists of the area

bounded by the Maine shoreline at

43°30′ N due east 43°3′N/70°00′ W, then

south to 42°00′ N/70°00′ W, then due

west to the Massachusetts shoreline at

42°00′N, then along the Cape Cod

shoreline to 42°04.8′ N/70°10′ W, then

to 42°12′ N/70°15′ W, then to 42°12′ N/

70°30′ W, then to 42°00′ N/70°30′ W,

then west to the Massachusetts

shoreline (copies of a chart depicting

this area are available from the NE

Regional Administrator upon request),

unless the Assistant Administrator

extends that area under paragraph (f) of

this section.

(ii) Type 1 gear restrictions. On or

after January 1, 1998, no person may

fish with sink gillnet gear in the

Stellwagen Bank/Jeffreys Ledge

restricted area unless the sink gillnet

gear complies with the Type 1 gear

restrictions specified under paragraph

(c)(2)(i) of this section; or, if the

Assistant Administrator revises the gear

modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. This

restriction applies throughout the year

unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(7) Other Northeast waters area. (i)

Description of the other Northeast

waters area. The other Northeast waters

area consists of all Northeast waters

except for the Cape Cod Bay restricted

area, the Great South Channel and Great

South Channel sliver restricted areas, all

waters landward of the first bridge of

any embayment in Rhode Island, and

southern Massachusetts (to Monomoy

Island) and all waters west of a line

from the north fork of the eastern end

of Long Island, NY (Orient Point to

Plum Island to Fisher Island) to Watch

Hill Rhode Island.

(ii) Type 2 gear restrictions. From

January 1 through December 31, 1998,

no person may fish with sink gillnet

gear in the other Northeast waters area

unless the sink gillnet gear complies

with the Type 2 gear modification

requirements specified under paragraph

(c)(2)(ii) of this section; or, if the

Assistant Administrator revises the gear

modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. This

restriction applies throughout the year

unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(iii) Type 1 gear restrictions. On or

after January 1, 1999, no person may

fish with sink gillnet gear in the other

Northeast waters area unless the sink

gillnet gear complies with the Type 1

gear modification requirements

specified under paragraph (c)(2)(i) of

this section; or, if the Assistant

Administrator revises the gear

modification requirements under

paragraph (f) of this section, the gear

complies with those requirements. This

restriction applies throughout the year

unless the Assistant Administrator

revises the restricted period under

paragraph (f) of this section.

(d) Restrictions applicable to midAtlantic coastal gillnet gear. (1) Gear

marking requirements. No person may

fish with mid-Atlantic coastal gillnet

gear unless that gear is marked by gear

type and region according to the gear

marking code specified under paragraph

(a) of this section. On and after January

1, 1998, all buoy lines must be marked

within 2 feet (0.6 m) of the top of the

buoy line and midway along the length

of the buoy line according to gear type

and region. On and after January 1,

1999, all net panels in each string of a

gillnet must be marked along the

headrope at both ends of each panel

according to gear type and region.

(2) Mid-Atlantic coastal gillnet gear

modifications and restrictions. (i) Type

1 mid-Atlantic coastal gillnet gear. Type

1 mid-Atlantic coastal gillnet gear is

sink gillnet gear which complies with

the following requirements:

(A) Sinking line. All groundlines,

bridle lines, anchor lines and other

lines, except the headrope and bottommost section of the buoy lines, are

sinking line;

(B) Headrope specifications. The

headrope:

(1) Is equipped with net floats and the

diameter of the headrope does not

exceed 5⁄16 inch (0.79 cm); or

(2) Has a foam core and the diameter

of the headrope does not exceed 1⁄2 inch

(1.27 cm);

(C) Sinking or modified sinking buoy

lines. All buoy lines are sinking line,

except that floating line may be used if:

(1) The floating line is not attached to

the buoy, is used only in the bottommost section of the buoy line, and is not

longer than 10 percent of the depth of

the water at mean low water;

(2) The floating line is not larger than 1⁄2 inch (1.27 cm) in diameter; and

(3) The floating line section of the

buoy line is attached to the sinking line

by a splice and not by a knot;

(D) Breakaway buoys or weak buoy

lines. All buoy lines and buoys comply

with one of the following:

(1) The buoy line is attached at the

top of the line to a breakaway buoy.

Unless the Assistant Administrator

revises the gear requirements under

paragraph (f) of this section, the

breakaway buoy must be designed with

a breaking strength of no more than 150

pounds (68 kg); or

(2) The buoy line has a weak buoy

line that is at least as long as the depth

of the water at mean high water, is

attached to the buoy at the top of the

line, and is attached to a functional

buoy line resting on the ocean bottom at

the bottom of the weak buoy line.

Unless the Assistant Administrator

revises the gear requirements under

paragraph (f) of this section, the weak

buoy line must be designed with a

breaking strength of no more than 150

pounds (68 kg);

(E) Weak links. The gillnet is

equipped with weak links on the

headrope and on the footrope between

each net panel. Unless the Assistant

Administrator revises the gear

requirements under paragraph (f) of this

section, each weak link must be

designed with a breaking strength of no

more than 150 pounds (68 kg);

(F) Securely anchored. Each gillnet is

securely anchored so that the anchor

will not dislodge when there is a pull

on any weak link of more than the

applicable maximum breaking strength

for the weak; and

(G) Groundline. At each end of a

string of net panels, an anchor is

attached to the gillnet by a groundline

and bridle with a combined length

which is equal to or greater than 90 feet

(27.7 m).

(ii) Type 2 mid-Atlantic coastal gillnet

gear. Type 2 mid-Atlantic coastal gillnet

gear is anchored gillnet gear, other than

sink gillnet gear, which complies with

the requirements of paragraph (d)(2)(i)

(C) and (D) of this section (sinking buoy

lines or modified sinking buoy lines,

and breakaway buoys or weak buoy

lines).

(3) Mid-Atlantic coastal waters area.

(i) Description. The mid-Atlantic coastal

waters area consists of all mid-Atlantic

waters except that the following waters

are excluded:

(A) Waters landward of the first

bridge of any embayment in Raritan and

lower New York Bays in the New York

Bight;

(B) Waters north of a line drawn from

the southern point of Nantuxent Cove

(mouth of Cedar Creek, New Jersey) to

the southern boundary of Bombay Hook

National Wildlife Refuge at Kelly Island,

Delaware (Port Mahon);

(C) Waters in the Chesapeake Bay

north of the Chesapeake Bay Bridge/

Tunnel; and

(D) All waters between the Outer

Banks and the mainland from Morehead

City, North Carolina, to the Virginia/

North Carolina border.
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16537

(ii) Type 1 (sink gillnet) mid-Atlantic

coastal gillnet gear restrictions. On or

after January 1, 1998, during the winter/

spring restricted period, no person may

fish with sink gillnet gear in the MidAtlantic coastal waters area unless the

gillnet gear complies with the Type 1

gillnet gear restrictions specified under

paragraph (d)(2)(i) of this section. The

winter/spring restricted period for this

area is from December 1 through March

31 unless the Assistant Administrator

revises that restricted period under

paragraph (f) of this section.

(iii) Type 2 (other anchored gillnet)

mid-Atlantic coastal gillnet gear

restrictions. On or after January 1, 1998,

during the winter/spring restricted

period, no person may fish with other

anchored gillnet gear in the MidAtlantic coastal waters area unless the

gillnet gear complies with the Type 2

gillnet gear restrictions specified under

paragraph (d)(2)(ii) of this section. The

winter/spring restricted period for this

area is from December 1 through March

31 unless the Assistant Administrator

revises that restricted period under

paragraph (f) of this section.

(iv) Driftnet gear—fishing practices

requirements. No person may fish at

night with driftnet gear in the midAtlantic coastal waters area unless that

gear is tended. Before a vessel returns to

port, all driftnet gear set by that vessel

in the mid-Atlantic coastal waters area

must be removed from the water and

stowed on board the vessel.

(e) Restrictions on shark driftnet gear.

(1) Gear marking requirements. No

person may fish with drift gillnet gear

in Southeast waters unless that gear is

marked by gear type and region

according to the gear marking code

specified under paragraph (a) of this

section. On and after November 1, 1998,

all buoy lines must be marked within 2

feet (0.6 m) of the top of the buoy line

and midway along the length of the

buoy line according to gear type and

region. On and after November 1, 1999,

each net panel must be marked along

both the float line and the lead line and

at least once every 100 feet (30.8 m)

along the floatline and bottom line.

(2) Management areas. (i) SEUS

restricted area. The Southeast U.S.

restricted area consists of the SEUS

critical habitat area described in 50 CFR

226.13(c) plus an additional area along

the coast north to 32°00′ N (near

Savannah, Georgia) from the shore and

extending eastward out 15 nautical

miles from the shore, and an additional

small area along the coast south to

27°51′ N (near Sebastian Inlet, Florida)

and extending from the shore eastward

out 5 nautical miles from the shore

(copies of a chart depicting this area are

available from the SE Regional

Administrator upon request), unless the

Assistant Administrator extends that

area under paragraph (f) of this section.

(ii) SEUS observer area. The SEUS

observer area consists of the area south

of the SEUS restricted area and an

additional area along the coast south to

26°46.05′ N (near West Palm Beach,

Florida) and extending from the shore

eastward out 5 nautical miles (copies of

a chart depicting this area are available

from the SE Regional Administrator

upon request), unless the Assistant

Administrator extends that area under

paragraph (f) of this section.

(3) Restrictions. (i) Closure. Except as

provided under paragraph (e)(3)(iii) of

this section, no person may fish with

driftnet gear in the SEUS restricted area

during the closed period. The closed

period for this area is from November 1

through March 31 of the following year,

unless the Assistant Administrator

extends that closed period under

paragraph (f) of this section.

(ii) Observer requirement. No person

may fish with driftnet gear in the SEUS

observer area unless the captain of the

vessel calls the SE Regional Office in St.

Petersburg, Florida not less than 48

hours prior to departing on any fishing

trip in order to arrange for observer

coverage. If the Regional Office requests

that an observer be taken on a fishing

trip, no person may fish with driftnet

gear in the SEUS observer area unless

the observer is on board the vessel

during the trip.

(iii) Special provision for strikenets.

Fishing with strikenet gear is exempt

from the restriction under paragraph

(e)(3)(iii) of this section if:

(A) No nets are set at night or when

visibility is less than 500 yards (460 m);

(B) Each set is made under the

observation of a spotter plane;

(C) No net is set within 3 nautical

miles of a right, humpback or fin whale;

and

(D) If a right, humpback of fin whale

moves within 3 nautical miles of the set

gear, the gear is removed immediately

from the water.

(f) Contingency measures and other

provisions. In addition to any other

emergency authority under the MMPA,

the Endangered Species Act, the

Magnuson-Stevens Fishery

Conservation and Management Act, or

other appropriate authority, the

Assistant Administrator may take action

under this section in the following

situations:

(1) Unusual right whale patterns. The

Assistant Administrator may impose

additional temporary restrictions on

specified gear under paragraph (a)(1)(i)

of this section for the purpose of

reducing the risk of interactions with

right whales through a publication in

the Federal Register if right whales are

determined to be resident in the area.

This determination will be based on

sightings of four or more right whales in

the area for 2 or more consecutive weeks

or on alternative criteria specified by the

Assistant Administrator under this

paragraph (f). These additional

restrictions may extend any restricted

area specified under this section or

restrict any other area along the Atlantic

coast of the U.S., may revise any closed

or restricted period specified under this

section to regulate gear specified under

paragraph (a)(1)(i) of this section, or take

other similar action. The Assistant

Administrator may remove these

additional temporary restrictions

through a publication in the Federal

Register if right whales are determined

to have left the area. This determination

will be based on sighting efforts that

produce no confirmed sightings for 1

week or more or other evidence that the

right whales have left the area.

(2) Gear failure. If a serious injury or

mortality of a northern right whale

occurs in an interaction with gear

specified under paragraph (a)(1)(i) of

this section in a restricted area and

during a restricted period specified

under this section, NMFS will assess the

interaction. If NMFS determines that the

interaction is attributable to restricted

gear used in a critical habitat area, the

Assistant Administrator shall close the

area during the restricted period. If

NMFS determines that the interaction is

attributable to restricted gear used in

any other restricted area, the Assistant

Administrator shall close the restricted

area during the restricted period or

impose additional gear modifications or

alternative fishing practices that will

significantly reduce the risk of serious

injury or mortality to right whales. The

closure or additional restrictions will be

imposed through a publication in the

Federal Register.

(3) Gear concerns. If an entanglement

of a right whale or the serious injury or

mortality of any endangered whale

occurs as a result of an interaction with

gear specified under paragraph (a)(1)(i)

of this section at any time or in any area,

NMFS will assess the interaction. If

NMFS determines that the interaction is

attributable to restricted gear, the

Assistant Administrator may impose

additional gear modifications or

alternative fishing practices through a

publication in the Federal Register, or

may close a restricted area or areas until

additional gear modifications or

alternative fishing practices are imposed

through a publication in the Federal

Register.
16538 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

(4) Other special measures. If NMFS

verifies that certain gear restrictions are

effective in reducing serious injuries

and mortalities of endangered whales; if

new gear technology is developed and

determined to be appropriate; if revised

breaking strengths are determined to be

appropriate; if new marking systems are

developed and determined to be

appropriate; if alternative criteria for

identifying whether right whales are

resident in an area is determined to be

appropriate; if gear testing operations

are considered appropriate; or for

similar purposes, the Assistant

Administrator may revise the

requirements of this section through a

publication in the Federal Register.

[FR Doc. 97–8738 Filed 4–4–97; 8:45 am]

BILLING CODE 3510–22–P