[Federal Register Volume 62, Number 66 (Monday, April 7, 1997)]
[Proposed Rules]
[Pages 16519-16538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8738]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-7072-02; I.D. 031997B]
RIN 0684-AI84


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS by this action proposes a take reduction plan and 
implementing regulations to reduce serious injury and mortality of four 
large whale stocks that occur incidental to certain fisheries. The 
whales stocks consist of the North Atlantic right whale (Eubalaena 
glacialis), Western North Atlantic stock, humpback whale (Megaptera 
novaeangliae), Western North Atlantic stock, fin whale (Balaenoptera 
physalus), Western North Atlantic stock, and minke whale (Balaenoptera 
acutorostrata), Canadian East Coast stock. Covered by the proposed plan 
are fisheries: for multiple species, including monkfish and dogfish in 
the New England Multispecies sink gillnet fishery; for multiple species 
in the U.S. mid-Atlantic coastal gillnet fisheries; for lobster in the 
Gulf of Maine and U.S. mid-Atlantic trap/pot fisheries; and for sharks 
in the Southeastern U.S. Atlantic driftnet fishery. NMFS seeks comments 
on this proposed plan and the proposed regulations to implement the 
plan.

DATES: Comments on the proposed plan and proposed regulations to 
implement the plan must be received by May 15, 1997.

ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-33226. Copies of the Team Report and 
draft Environmental Assessment (EA) may be obtained by written request 
from the Office of Protected Resources, or by telephoning one of the 
contacts listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Kim Thounhurst, NMFS, Northeast 
Region, 508/281-9368; Bridget Mansfield, NMFS, Southeast Region, 813/
570-5312; or Michael Payne, NMFS, Office of Protected Resources, 301/
713-2322.

SUPPLEMENTARY INFORMATION:

Background

    Since it was first passed in 1972, one of the underlying goals of 
the Marine Mammal Protection Act (MMPA) has been to reduce the 
incidental serious injury and mortality of marine mammals permitted in 
the course of commercial fishing operations to insignificant levels 
approaching a zero mortality and serious injury rate (section 101(a)(2) 
of the MMPA). The 1994 Amendments to the MMPA reaffirm this Zero 
Mortality Rate Goal (ZMRG) (section 118 (b)(1)).
    To facilitate reduction of incidental serious injury and mortality 
to high priority marine mammal stocks, section 118(f) requires NMFS to 
develop and implement a take reduction plan to assist in the recovery 
or to prevent the depletion of each strategic stock that interacts with 
a Category I or II fishery. Category I or II fisheries are fisheries 
that have frequent or occasional incidental mortality and serious 
injury of marine mammals, respectively. A strategic stock is a stock: 
(1) For which the level of direct human-caused

[[Page 16520]]

mortality exceeds the potential biological removal (PBR) level; (2) 
which is declining and is likely to be listed under the Endangered 
Species Act (ESA) in the foreseeable future; or (3) which is listed as 
a threatened or endangered species under the ESA or as a depleted 
species under the MMPA. The immediate goal of a take reduction plan 
(TRP) is to reduce, within 6 months of its implementation, the 
mortality and serious injury of strategic stocks incidentally taken in 
the course of commercial fishing operations to below the PBR levels 
established for such stocks. The long-term goal of the plan is to 
reduce, within 5 years of its implementation, the incidental mortality 
and serious injury of strategic marine mammals taken in the course of 
commercial fishing operations to insignificant levels approaching a 
zero mortality and serious injury rate.
    NMFS established the Atlantic Large Whale Take Reduction Team (Team 
or ALWTRT) on August 6, 1996 (61 FR 40819) to prepare a draft Atlantic 
Large Whale Take Reduction Plan to reduce takes of humpback, fin and 
right whales, which are listed as endangered species under the ESA (and 
are thus considered strategic stocks under the MMPA) by commercial 
fisheries. Although minke whales are not considered strategic at this 
time, the Team was also asked to consider measures that would reduce 
takes of minke whales. The Team prepared a report and submitted it to 
NMFS; a more complete discussion of the Team Report and associated 
recommendations is provided below.
    The New England Multispecies sink gillnet fishery is a Category I 
fishery that has an historical incidental bycatch of humpback, minke, 
and possibly fin whales. This gear type has been documented to take 
right whales in Canadian waters. Additionally, entanglements of right 
whales in unspecified gillnets have been recorded historically for U.S. 
waters, although U.S. sink gillnets have not been conclusively 
identified as having taken right whales. The Gulf of Maine/U.S. mid-
Atlantic lobster trap/pot fishery is a Category I fishery that has an 
historical incidental bycatch of right, humpback, fin and minke whales. 
The mid-Atlantic coastal gillnet fisheries are considered a Category II 
fisheries complex that has an historical incidental bycatch of humpback 
whales. The Southeastern U.S. Atlantic drift gillnet fishery for sharks 
is a Category II fishery that is believed to be responsible for bycatch 
of at least one right whale. These fisheries are therefore addressed in 
this proposed Atlantic Large Whale Take Reduction Plan (ALWTRP or 
Plan). The pelagic drift gillnet fishery has recorded takes of large 
whales, but those interactions are not being addressed in this Plan, 
since it will be addressed in the Atlantic Offshore Cetacean Take 
Reduction Plan, which is being developed.
    In addition, the Team Report identified several other fisheries 
operating on the U.S. Atlantic Coast which either use gear similar in 
construction to gear used by the fisheries covered by this proposed 
plan, and may therefore represent similar entanglement threat, or which 
may have documented serious injury or mortality entanglements of right, 
humpback, fin and/or minke whales. These fisheries include the tuna 
hand line/hook-and-line fishery, groundfish (bottom) longline/hook-and-
line fishery, surface gillnet fishery for small pelagic fishes, pot 
fisheries other than lobster pot, finfish staked trap fisheries, and 
weir/stop seine fisheries. Currently, these fisheries are either 
classified as Category III or are unclassified. NMFS is considering the 
appropriateness of these classifications and may impose gear-marking 
requirements and/or restrictions on some or all of these other 
fisheries in the final plan. NMFS specifically invites comments on 
whether these other fisheries utilize the same or similar gear as the 
fisheries considered in this plan, whether the gear is fished in a 
manner which causes or has the potential to cause serious injury or 
mortality to marine mammals, whether efficient administration, 
effective enforcement or similar considerations warrant uniform 
regulations for similar gear types, and whether the gear-marking 
requirements and/or other restrictions should apply to all fisheries 
using similar gear.
    The Team was tasked with developing a draft plan for reducing 
mortality and serious injury to strategic large whale stocks, and minke 
whales if time permitted, in the specified fisheries. The Team included 
representatives of NMFS, the Marine Mammal Commission, Maine Department 
of Marine Resources, Massachusetts Division of Marine Fisheries, Rhode 
Island Division of Fish and Wildlife, Maryland Department of Natural 
Resources, Virginia Marine Resources Commission, North Carolina 
Division of Marine Fisheries, Georgia Department of Natural Resources, 
Florida Department of Environmental Protection, New England Fishery 
Management Council, Mid-Atlantic Fishery Management Council, 
environmental organizations, academic and scientific organizations, and 
participants in the fisheries considered in this plan. In selecting 
these team members, NMFS sought an equitable balance among 
representatives of resource user and non-user interests.
    The team met six times between September 1996 and January 1997 and 
submitted a report to NMFS on February 5, 1997 (Although the report was 
entitled ``Draft Large Whale Take Reduction Plan'', consensus was not 
reached. Consequently, it is referred to as the ``ALWTRT Report'' or 
``Team Report''). While consensus was not reached, the Team provided a 
significant and useful framework for NMFS to develop this proposed 
ALWTRP and the associated implementing regulations. The report 
submitted by the Team includes: (1) A review of the current information 
on the status of the affected strategic marine mammal stocks; (2) 
descriptions of the New England multispecies sink gillnet fishery, the 
mid-Atlantic coastal gillnet fisheries, the Gulf of Maine and U.S. mid-
Atlantic lobster trap/pot fisheries, and the Southeastern U.S. Atlantic 
drift gillnet fishery for sharks; (3) comments on potential measures to 
reduce the bycatch of large whales; and (4) other comments regarding 
research needs for implementation of the plan.
    NMFS evaluated the Team Report and subsequent comments submitted by 
team members in developing this proposed ALWTRP. NMFS considered 
possible take reduction measures in terms of their potential 
effectiveness toward reaching both the 6-month and the 5-year goals. 
This ALWTRP includes specific take reduction goals as well as means to 
monitor progress toward those goals.

Take Reduction Goals

    Most of the measures in this proposed plan focus on ways to reduce 
the risk of serious injury and mortality to right whales, both because 
the right whale's population status is more critical than that of 
either humpback or fin whales, and because right whales are the only 
endangered large whale in U.S. Atlantic waters for which PBR is known 
to be exceeded. The proposed measures are also expected to reduce the 
risk of serious injury and mortality to humpback and fin whales due to 
entanglement, and may reduce the same risks for minke whales. There is 
overlap in several areas where fishing occurs and where right, 
humpback, fin and minke whales are also known to occur, although 
concurrent use of these areas by all species does not occur during much 
of the year. Therefore, certain measures directed at reducing right 
whale entanglements (such as required gear modifications) are proposed 
to be expanded to year-round coverage

[[Page 16521]]

beginning in 1998 to be effective for all species considered by the 
Plan.
    Some entanglements of large whales were observed by the NMFS sea 
sampling program; however, most records come from reports from various 
sources such as small vessel operators. Limitations of the available 
entanglement data include: (1) Not all observed events are reported; 
(2) most reports are opportunistic rather than from systematic data 
collection; consequently, conclusions cannot be made regarding actual 
entanglement levels; (3) identifying gear type or the fishery involved 
is often problematic; and (4) identifying the location where the 
entanglement first occurred is often difficult since the first 
observation usually occurs after the animal has left the original 
location.

Right Whales

    Based on data from 1991 through 1995, U.S. fishing gear is 
estimated to be responsible for approximately 35 percent (6 events) of 
known human-caused serious injury and mortality to right whales, while 
Canadian fisheries are estimated to be responsible for 18 percent (3 
events); the remaining 47 percent (8 events) is attributed to ship 
strikes. The MMPA requires that TRPs include measures to reduce takes 
of strategic marine mammals incidental to U.S. commercial fisheries to 
below PBR levels.
    NMFS estimates that a minimum of 1.2 right whales from the western 
North Atlantic stock are seriously injured or killed annually by 
entanglement in U.S. fishing gear. Of those entangled whales, lobster 
gear is estimated to have entangled an annual average of 0.4 whales 
over the last 5 years. The Southeastern U.S. drift gillnet fishery for 
sharks is assumed to have entangled an annual average of 0.2 whales 
over the same period. Whales entangled in unidentified gillnet gear 
have been observed. The pelagic drift gillnet fishery is estimated to 
be responsible for 0.4 fishery-induced mortalities and serious injuries 
of right whales annually. The remaining known entanglements are from 
unknown fisheries. With the exception of the swordfish driftnet take, 
which was documented by the NMFS observer program, these entanglement 
rates are considered minimum estimates based on known events. 
Unobserved entanglements are known to occur, based on observed scarred 
animals. These entanglements may be unobserved because less serious 
entanglements may be brief in duration, mortality may be rapid, or the 
entanglement may occur in an area where there is little sighting effort 
(and, consequently, lower chances of observation and reporting). NMFS 
is unable to estimate the number of these unobserved events.
    NMFS has determined that to meet the 6-month goal set by the MMPA 
to reduce takes by commercial fisheries to below the PBR level of 0.4 
for this stock, the probability of entanglement of right whales by all 
U.S. Atlantic fisheries must be reduced by more than 67% (from 1.2 to 
less than 0.4). Reduction of takes in the pelagic drift gillnet fishery 
will be considered in the Atlantic Offshore Cetacean Take Reduction 
Plan (AOCTRP). A draft AOCTRP was submitted to NMFS on November 25, 
1996, and publication of the proposed plan in the Federal Register is 
expected in the near future.
    NMFS estimates annual serious injury and mortality rates based on a 
5-year period. Expected rates of entanglement during any 6-month period 
may vary from the 5-year annual average. This variation may be most 
pronounced where the sample size is particularly small, as is the case 
with right whale entanglements. Consequently, it will be difficult to 
establish whether the goal of reducing incidental takes of right whales 
to below the PBR level is achieved within 6 months of the plan is 
implemented. Since the PBR level for right whales is 0.4, if more than 
two serious injuries or mortalities incidental to commercial fishing 
operations occur within 5 years after the plan is promulgated, then the 
PBR goal will not have been achieved.
    Progress toward the 5-year goal may be more feasible to monitor 
than that toward the 6-month goal. However, defining the 5-year goal is 
somewhat more difficult, since at this time, NMFS has not issued a 
final quantitative definition for ZMRG. NMFS expects to address the 
regulatory definition of ZMRG in the near future. However, more than 
one incident of serious injury or mortality in the fisheries covered 
under the ALWTRP (which does not include all fisheries) during the 
first 3 years after the plan is implemented would be a strong indicator 
that the plan was not achieving its goals. Right whale entanglement 
rates are proposed to be monitored as described below.

Humpback Whales

    NMFS has determined that a reduction in take for the western North 
Atlantic stock of humpback whales is not required to meet the 6-month 
goal, because the estimated annual serious injury and mortality level 
due to entanglement (in the four fisheries groups covered in this plan) 
for this stock (3.4 minimum annual average for 1991-1995) is below the 
stock's PBR level of 9.7.
    As with right whales, a quantitative goal to achieve the 5-year 
goal of ZMRG for humpback whales cannot be prescribed until ZMRG has 
been defined in terms other than ``insignificant levels approaching a 
zero mortality rate.'' If entanglement rates are observed to be 
reduced, progress toward ZMRG would be assumed, but could not be 
assessed more accurately until ZMRG is defined more precisely. The 
humpback whale entanglement rate is proposed to be monitored as 
described below.

Fin Whales

    Although serious injury and mortality due to entanglement has been 
documented for this stock of fin whales over the 1991-1995 period, none 
of those events can be conclusively attributed to any of the four 
fisheries groups covered in this plan, and the estimated total take due 
to entanglement is below PBR for this stock. Therefore, NMFS has 
determined that a reduction in take for the western North Atlantic 
stock of fin whales is not required for these fisheries to meet the 6-
month goal. However, entanglement of fin whales in lobster pot gear and 
gillnet gear has been documented historically, and some reduction in 
take may be necessary to achieve the ZMRG. As with right and humpback 
whales, a quantitative goal to achieve the 5-year goal of ZMRG for fin 
whales cannot be established with numerical precision at this time. 
However, measures implemented to reduce the entanglement rate of right 
and humpback whales would also be expected to reduce the entanglement 
rate for fin whales, facilitating progress of that stock toward ZMRG. 
Fin whale entanglement rate are to be monitored, as feasible, although 
it should be noted that known entanglements are rare, and it may be 
difficult to determine whether there has been a reduction. 
Additionally, the number of entangled fin whale sightings is likely to 
be negatively biased because carcasses usually sink immediately and are 
therefore less likely to be observed.

Minke Whales

    Although minke whales are not considered strategic at this time 
(human-caused mortality and serious injury are not known to exceed the 
PBR level of 21 for this stock, and this species is not listed as 
threatened or endangered under the ESA or as depleted under the MMPA), 
serious injuries and mortalities incidental to at least two of the 
fisheries groups covered in this proposed plan are known to

[[Page 16522]]

occur. Therefore, the Team was asked to consider measures that would 
reduce takes of minke whales in these fisheries. In light of the strict 
time frame available to develop a TRP, the Team did not have time to 
consider specific needs or measures to reduce entanglements of minke 
whales. However, measures implemented to reduce the entanglement rate 
of right and humpback whales may reduce the entanglement rate for minke 
whales, facilitating progress of that stock toward ZMRG. The minke 
whale entanglement rate is proposed to be monitored, to the extent 
feasible. If entanglement rates are observed to be reduced, progress 
toward ZMRG would be assumed, but could not be assessed more accurately 
until ZMRG is defined more precisely. As with fin whales, minke 
entanglement levels are likely to be underestimated because carcasses 
are likely to sink immediately.

Monitoring Strategies

    The following strategies for monitoring progress in take reduction 
were outlined in the Team Report: (1) Collect adequate photographic 
data to evaluate the incidence of new entanglement scarring and assess 
presumed mortality levels; (2) expand field survey efforts for a 
minimum of six years after implementation of gear modifications, to 
assess population abundance and distribution; and (3) evaluate 
effectiveness of gear modifications on future entanglement events. The 
success of the take reduction measures that are implemented will be 
evaluated at future Team meetings, with subsequent comments and 
recommendations forwarded to NMFS.
    NMFS will continue to monitor entanglements of all large whale 
species. Assessment of the success in bycatch reduction measures will 
be based on reports from the NMFS observer program, examination of 
stranded whales, abundance and distribution surveys, fishermen's 
reports and opportunistic reports of entanglement events. NMFS is 
considering expanding field survey efforts to assess population 
abundance and distribution. The effectiveness of implemented take 
reduction measures may be most apparent through monitoring the 
entanglement rate for humpback whales, since this species has the 
highest known entanglement rate of the large whales on the U.S. 
Atlantic coast. A decrease in entanglements of humpback whales will be 
taken as supportive evidence that the risk of entangling right, fin and 
minke whales has been reduced.
    It should be emphasized that not all whale entanglements result in 
serious injury or mortality. Levels of entanglement-related 
scarification in the right whale population have been analyzed (Kraus, 
1990). Monitoring of scarification and comparison of historic levels in 
the population, as noted in the Team Report, may help provide a basis 
for determining whether the various take reduction measures in the 
final plan are effective in decreasing levels of interaction between 
whales and fishing gear. This must be considered together with 
determining the effectiveness of gear modifications (which may leave 
scars on whales, but not result in serious injuries and mortalities) in 
decreasing the severity of entanglement-related injuries. The level of 
non-serious injuries resulting from entanglements will provide further 
indication of whether the 6-month and 5-year goals of the ALWTRP are 
being achieved.
    Monitoring fishing effort levels in conjunction with assessment of 
gear effectiveness may provide another indicator of entanglement rates. 
This will be considered when the Team periodically convenes to evaluate 
the success of the ALWTRP. If fishing effort is reduced, entanglement 
risk may also decline, although a linear relationship cannot be 
assumed. Rather, entanglement risk may decrease by an unknown 
percentage depending on the degree of overlap between historical 
fishing effort and whale distribution.
    Some marking of lobster pots, gillnets and associated surface gear 
(e.g., buoys, high-fliers, or flags) is currently required or being 
considered under Federal or state fishery management plans for the four 
groups of fisheries covered by this plan. However, most lines and nets 
in the water column remain unmarked. Most sightings of entangled whales 
involve gear which cannot be conclusively tracked to a particular 
fishery or area, due to the fact that only a fragment of line or net is 
present.
    Several entanglement records indicates that whales are capable of 
dragging gear great distances. In one known instance, a right whale 
that became entangled in a lobster pot trawl in the Bay of Fundy 
dragged fragments of the trawl to Cape Cod, Massachusetts, where the 
whale was struck by a vessel and washed up on the beach. Due to these 
factors and the low per-gear interaction rate, NMFS believes that the 
traditional observer program will not be effective in detecting or 
monitoring large whale entanglements in most fisheries.
    To increase the value of information from future entanglement 
events, NMFS is proposing gear marking requirements to monitor the 
effectiveness of this plan and to determine whether entanglements are 
occurring in gear which has been damaged or displaced by storms or 
user-group conflicts. NMFS seeks to implement this requirement in as 
simple a manner as possible as described in the gear modifications 
section below.

Take Reduction Strategies

    The primary measures for take reduction discussed in the Team 
Report include modifications to fishing gear and practices, area 
restrictions, reduction of inactive fishing gear as marine debris, and 
improved disentanglement efforts. Supplementary initiatives for take 
reduction contained in the Team Report include fisher education and 
outreach, better monitoring of the distribution of whale stocks and 
entanglements, joint initiatives with Canada to reduce whale bycatch in 
commercial fisheries, and exploration of market incentives to reduce 
large whale bycatch in these fisheries. In this action, NMFS is 
proposing strategies that seem best suited to follow the intent of the 
Team and to achieve the goals set forth by the MMPA. NMFS expects that, 
if implemented, these measures, taken together, would have a 
significant effect in reducing the risk of entanglement of large whales 
in the fisheries considered in this plan to levels that meet both the 
6-month and 5-year goals.
    Whales are extremely mobile and entanglements have occurred outside 
the bounds of known high risk areas. It is, therefore, not possible to 
identify all areas of risk. It is likewise difficult to determine if 
the measures proposed in this plan will be sufficient to reduce 
entanglements that result in serious injury and mortality to below PBR 
levels, and eventually to the ZMRG, or to maintain take rates below 
those levels. Further restrictions will be applied if these measures 
are not successful.
    It is not possible to conclusively quantify the decrease in risk of 
entanglement that will result from the proposed measures in this 
ALWTRP. The Team was presented with the best available data on large 
whale distribution and abundance patterns in the Atlantic, as well as 
similar information on fisheries effort and distribution. These data 
were analyzed and compared to determine areas and times that represent 
``high risk'' to whales based on high probability of whale occurrence 
and/or high fishing effort. This analysis was used by the Team to 
provide comments to NMFS regarding locations and times for area

[[Page 16523]]

closures or gear restrictions. For an analysis of the level of 
entanglement risk from the Northeast sink gillnet fishery for all 
areas, which was done by overlaying right and humpback whale densities 
on fishing effort for different times of the year and assigning low, 
medium or high risk, see the appendix 11 and other materials in the 
ALWTRT Report. Whale densities during certain months in some areas are 
such that the Team believed it was important to prevent future 
expansion of fishery effort until effective gear modifications have 
been developed and demonstrated. In other areas periodic increased 
whale densities combined with certain levels of fishing effort may 
create anomalous high risk periods.
    The proposed requirements would govern fishing by all vessels in 
New England multispecies sink gillnet fisheries, the mid-Atlantic 
coastal gillnet fisheries, the Gulf of Maine/U.S. mid-Atlantic lobster 
trap/pot fishery and the Southeastern U.S. Atlantic drift gillnet 
fishery for sharks. As stated earlier, there are additional trap/pot, 
gillnet or other gear that may have the potential to entangle whales. 
These are primarily Category III fisheries which will be evaluated 
during the 1998 List of Fisheries process for potential interaction 
levels with large whales and possible elevation to Category I or II. 
Although these fisheries are not included in take reduction or gear 
marking measures under this proposed rule, the final rule may include 
such measures.

Research Initiatives and Monitoring Strategies

    The Team recommended initiation of a gear research and development 
program to design and implement fishing techniques and technologies 
that will reduce the entanglement rate and/or severity of injuries and 
mortalities of large whales. The Team recommended that NMFS work with 
industry and gear specialists to develop criteria for: (1) Certifying 
individuals and institutions as qualified to design and evaluate 
modifications for use consistent with requirements of the ALWTRP and 
other TRPs; and (2) evaluating gear effectiveness toward reducing 
marine mammal entanglements.
    The Team Report identified several initial gear modifications for 
investigation. These are the development of: (1) Tag lines (lightweight 
line that poses no risk to whales, but would hold a buoy at the surface 
and allow retrieval of a functional buoy line); (2) biodegradable or a 
weak link at the bottom of the buoy line; (3) improvement of a weak 
link at the top of the buoy line; (4) smooth or non-snagging gillnet 
head rope; (5) biodegradable gear and gear components; (6) using 
weights to sink floating pot trawl groundline, development of other 
functional equivalents of sinking groundline, or requiring sinking 
groundline; and (7) ``noisy'' gear, or gear more easily detected by 
whales. Also identified in the Team Report as areas for further 
investigation are the evaluation of the breaking strengths of weak 
links and the performance of weak links in gillnets both between and 
within net panels. The Team Report further comments that successful 
gear modifications be considered for future incorporation into the plan 
as implementation measures.
    NMFS is forming a gear review and technical advisory group to work 
with industry and gear technology specialists to develop gear and 
fishing practices to reduce the number and impact of large whale 
entanglements. NMFS recognizes that the current low rate of observed 
entanglement and other difficulties in evaluating gear makes it 
difficult or impossible to demonstrate conclusively that any gear 
modification would reduce entanglement or serious injury and mortality 
resulting from entanglement. Nonetheless, NMFS has included certain 
gear modifications in this proposed rule although these measures have 
not yet been evaluated by the NMFS gear review and technical advisory 
group. NMFS believes that these modifications will reduce the risk of 
entanglement, but seeks further review of these measures.
    It is anticipated that the NMFS gear review group will conduct an 
initial review of the proposed gear modifications prior to publication 
of the final rule implementing this plan. NMFS proposes to immediately 
implement the most stringent restrictions in areas and times when right 
whale concentrations are highest. This strategy was initiated in 
regulations implementing Framework Adjustment 23 to the Northeast 
Multispecies Fishery Management Plan and emergency regulations for the 
lobster fishery under the MMPA. The proposed rule incorporates these 
restrictions and phases in additional restrictions.
    Through gear marking requirements, NMFS hopes to obtain more useful 
data regarding when and where entanglements occur, as well as in which 
parts of the gear they are most likely to occur. This measure will not 
reduce bycatch, but is expected to facilitate in monitoring 
entanglement rates and assist in designing future bycatch reduction 
measures to achieve ZMRG.
    NMFS seeks to implement the gear marking requirement in as simple a 
manner as possible. A system entailing color-coded marks is proposed. 
The marking would include three color schemes, one color representing 
the gear type corresponding to one of the fisheries in this plan, and 
the second mark consisting of two colors indicating the region in which 
the gear is being fished. Regions would include Cape Cod Bay critical 
habitat, Great South Channel critical habitat, the Stellwagen Bank/
Jeffreys Ledge area, other Northeast waters, Mid-Atlantic coastal 
waters, and Southeast waters. Gear marking must be accomplished so that 
the result is a smooth line with no snags which could catch in a 
whale's baleen.
    Marking of buoy lines (within 2 feet of the buoy and approximately 
midway in the water column) would be required by January 1, 1998, and 
marking of nets (at both ends of each net in a string of gillnets and 
every 100 feet in panels > 300 feet) and lobster pot trawl groundlines 
(approximately midway between each pot) would be required by January 1, 
1999. NMFS solicits comments on these proposed gear marking measures 
and alternative suggestions. In addition, NMFS also requests comments 
on whether gear-marking should be required for the other fisheries 
discussed above which utilize similar gear.

Primary Take Reduction Initiatives

Fishing Method / Gear Modifications and Area Restrictions by Fishery 
and Area

All Fisheries: 
    Documented whale behavior and information from actual entanglement 
records suggest that both vertical (e.g., buoy lines) and horizontal 
(e.g., gillnets or lobster pot trawl groundlines) components of fishing 
gear represent entanglement risks. For example, of the 9 records of 
right whale entanglements in gear identified as lobster gear since 
1970, 4 apparently involved only the buoy line, 2 probably involved 
only groundline, and 3 involved line that was from an unknown part of 
the gear. Modifications to the current practices of rigging buoy lines 
are proposed to reduce the number of vertical lines and to ensure that 
pot trawls are not rigged with more than two vertical lines. Although 
the level of risk reduction cannot be quantified because the current 
number of vertical lines is unknown, implementation of these measures 
will likely directly reduce the entanglement risk presented by vertical 
buoy lines.

[[Page 16524]]

    Sinking Buoy Line Requirement (except for driftnet gear): Buoy 
lines are typically constructed of a section of sinking line near the 
surface which is spliced or knotted to a longer section of floating 
line that is attached to the anchor of a gillnet or the first pot of a 
lobster pot trawl. Sinking line is preferred near the surface to 
decrease the chance that the line will be severed by propellers of 
vessels passing through an area. The attached floating line is less 
expensive than sinking line and has several additional benefits. Using 
floating line near the bottom can prevent the line from wrapping around 
gear or rocks on the bottom and chafing as the gear is moved by 
currents in the area. The length of buoy line used can depend on water 
depth and tidal influence. In some areas the buoy line may be longer 
than twice the water depth, and the tautness of the line is influenced 
by the tidal cycle and other currents. Therefore, the line may be slack 
during part of the current cycles in certain areas.
    Slack floating line appears to represent a greater risk of 
entanglement than taut line, particularly if the line is laying at or 
near the surface. Right whales may be particularly susceptible to 
entanglement in lines laying at or near the surface because of the 
feeding behavior known as ``skim feeding'' during which whales move 
slowly forward through a patch of zooplankton, keeping the mouth 
slightly ajar for hours at a time. Right and humpback whales are also 
known to feed at depth; however, the behavior when feeding near the 
bottom or in the water column is poorly understood.
    NMFS proposes to require sinking buoy lines or modified sinking 
buoy lines, by January 1, 1998, in all lobster pot gear and gillnet 
gear used by anchored gillnet fisheries covered by this plan be 
required by January 1, 1998. In order to accommodate regional 
differences in the practice of rigging buoy lines due to oceanographic 
conditions, NMFS proposes to allow fishers to use a section of floating 
line near the bottom of buoy lines in some areas. The Team discussed 
using 10 fathoms (18.3 m) for this bottom floating section in some 
areas such as the Great South Channel. Several TRT members mentioned 
that allowing this amount of floating line in the buoy line in portions 
of Stellwagen Bank and even the Great South Channel would represent 
very little reduction in risk, since the water is not much deeper than 
10 fathoms (18.3 m) in certain parts of those regions. Because 
requiring one length, even for one area such as the Great South Channel 
right whale critical habitat, is problematic, NMFS is proposing that 
the floating line at the bottom of a modified sinking buoy line be no 
longer than 10% of the depth of the water. NMFS is requesting comments 
on whether 10 fathoms, 1 fathom, or other lengths is more appropriate 
or whether a different percentage of the water column depth should be 
specified as the minimum length.
    Breakaway Buoy or Weak Buoy Line Requirement (except for driftnet 
gear): NMFS proposes that by January 1, 1998, all buoy lines in lobster 
pot gear and anchored gillnet gear considered in this plan be equipped 
with a breakaway buoy at the top of the buoy line, or that traditional 
buoy lines be replaced with a weak buoy line. The breakaway buoy or 
weak buoy line would be designed to break in a whale entanglement 
situation. Based on comments by the Team, NMFS is considering requiring 
a maximum breaking strength of 150, 300 and 500 lbs (68 kg, 136 kg, and 
227 kg, respectively). NMFS is proposing a 150 lb (68 kg) breaking 
strength, which is the initial value recommended by the Commonwealth of 
Massachusetts Endangered Whale Working Group and which was also 
discussed by the Team. Comments are requested on the appropriateness 
and practicality of these and other possible breaking strengths.
    The purpose of this requirement is to reduce the serious injury and 
mortality associated with an entanglement in the buoy line of fixed 
gear. The goal of a breakaway buoy is to ensure that the buoy itself 
does not contribute to the entanglement problem. A line without a buoy 
or knot at the bitter end is expected to pass more easily through the 
baleen of a whale and to slip more easily past an appendage. A line 
which does not get hung up on the baleen or on an appendage because 
there are no knots or buoys is believed to be less likely to initiate 
thrashing behavior. It is believed that once a whale starts to thrash, 
line can be wrapped around appendages and/or begin to cut into tissue. 
The breakaway buoy is intended to prevent the entanglement from 
progressing to that stage. While this modification may not reduce the 
incidence of entanglement, breakaway buoys might be expected to at 
least reduce the severity of an entanglement.
    The intent of a weak buoy line is that it would snap if a whale 
entangled in it but would be strong enough to haul up a heavier, 
traditional buoy line that would in turn be used to haul up the fishing 
gear. This measure may be the most effective gear modification of any 
discussed by the Team for reducing the serious injury and mortality 
rate from entanglement. As mentioned above, buoy line appears to have 
been the part of the gear responsible for at least 4 of the 9 known 
right whale entanglements in lobster pot gear. Right and humpback 
whales have also been sighted entangled in buoy lines of sink gillnet 
gear. If a brittle buoy line could be designed to break every time it 
was encountered by a whale, this modification could reduce and possibly 
eliminate the risk that entanglement would occur or at least ensure 
that entanglement in a buoy line would result in serious injury or 
mortality. NMFS assumes that use of such a brittle buoy line may not be 
practicable, but that a weak line can be developed that will break at 
least half of the time.
    Since a breakaway buoy is not expected to reduce the possibility of 
injury once a whale gets wrapped in line, the weak buoy line may 
represent a greater conservation gain than would be achieved through 
the breakaway buoy. However, the development of a weak buoy line is not 
as far along as the development of a breakaway buoy. In addition, the 
cost of developing and implementing a weak buoy line system may be 
substantially greater than a breakaway buoy system. NMFS proposes to 
require the use of breakaway buoys in 1998, but weak buoy lines are 
encouraged to be used as an alternative. Comments are requested on 
approaches to phasing in this requirement.
    Gear inspection requirement: This proposed rule includes a 
requirement that all gear used by the four specified fisheries be 
hauled at least once every 30 days for inspection. This provision was 
discussed by the ALWTRT for certain gear types to encourage fishers not 
to ``store'' gear at sea.
    Closures: In addition to gear modifications, the Team discussed the 
use of time/area closures for sink gillnet and lobster pot gear in 
areas of high use by right whales until fishing gear has been developed 
that poses minimal risk of serious injury or mortality from 
entanglement. Only gear demonstrated to pose minimal risk to whales 
will be allowed in the restricted area.
    Contingency Measures: Closure or other restrictions in the event of 
an entanglement in modified gear: As noted above, NMFS is aware that it 
will be difficult to determine with surety that required gear 
modifications will reduce the rate of serious injury and mortality as 
expected. NMFS proposes that if an injury or mortality of a right whale 
occurs as the result of an entanglement in modified gear, NMFS will 
assess the circumstances, including the level of injury, and determine 
if

[[Page 16525]]

there is indication that the modification is not sufficient to reduce 
the rate of serious injury or mortality to right whales. If such a 
serious injury or mortality is attributable to modified gear in a 
critical habitat area, NMFS would close the critical habitat area 
during the restricted period. If such a serious injury or mortality is 
attributable to modified gear in another restricted area, NMFS could 
close the area or impose additional restrictions to ensure the 
protection of right whales.
    If the entanglement involved only the non-serious injury of a right 
whale, or involved another large whale species, NMFS would again 
investigate and determine whether the interaction was attributable to 
modified gear. If the entanglement was attributable to modified gear, 
NMFS could impose additional gear modifications or alternative fishing 
practices, or close the area through a publication in the Federal 
Register.
    This measure would enable NMFS to take prompt action to protect 
endangered whales if modified gear is not sufficiently effective. NMFS 
will examine each entanglement event on a case by case basis to 
determine whether the gear responsible is modified gear, and whether 
the entanglement resulted in serious injury or mortality.
    Closures or other restrictions based on unusual concentrations of 
right whales: The measures in this rule are proposed to be implemented 
in various areas based on current knowledge of migratory patterns of 
right whales. Right whale movements are unpredictable, however, and 
there are periods when right whales occur in certain U.S. waters at 
other than expected times of the year and in areas other than right 
whale critical habitat. Some of these times and areas may have large 
amounts of fixed gear in the water. The risk of entanglement may be 
particularly high in these unpredictable situations. For example, all 
right whale entanglements in U.S. lobster gear where the location was 
known occurred either outside critical habitat or outside the peak 
season in critical habitat. As an added measure to reduce the 
likelihood of entanglement in the anomalous years with unusual right 
whale distribution patterns, the proposed regulations allow NMFS to 
extend gear requirements or to close a restricted area. Notification of 
such action would be published in the Federal Register. Under the 
proposed rule, special area restrictions would be considered if four or 
more right whales are sighted in an area for two consecutive weeks. 
Right whales would be judged to have left the area if there are no 
confirmed sightings for one week or more. NMFS requests comments on the 
criteria for determining concentrations of right whales that may 
require additional protection and suggestions for alternative criteria.
    Risk reduction through other MMPA actions or fishery management 
plan regulations: In addition to this proposed rule, certain other 
measures that are expected to decrease the risk of entanglement of 
whales in sink gillnets are either currently in effect or under 
consideration, such as reductions in allowable days at sea and seasonal 
or year-round area closures to protect groundfish. Additionally, area 
closures for harbor porpoise conservation are in effect for 
Massachusetts Bay, the Gulf of Maine ``mid-coast'' and ``northeast'' 
areas, and southern New England. With the exception of the harbor 
porpoise closure in southern New England, all of these closures 
coincide with times that right whales are also present in the area, 
further decreasing the likelihood of entanglement. Effort reduction 
measures under Framework Adjustment 20 to the Northeast Multispecies 
Fishery Management Plan are expected to reduce total sink gillnet 
effort by 50 to 80 percent, which is expected to reduce the risk of 
large whale entanglement associated with this gear by some fraction of 
the same amount.
    NMFS further notes that the Commonwealth of Massachusetts and the 
New England Fishery Management Council (NEFMC) are considering net caps 
in the sink gillnet fishery for future implementation to conserve 
groundfish. These measures, if implemented, may further reduce the risk 
of entanglement of right whales in sink gillnet gear, but are not a 
part of this plan.
    Some level of lobster pot gear effort reduction may occur under 
gear conflict management measures such as those implemented by the 
NEFMC in Southern New England. Further, NMFS is aware that the Atlantic 
States Marine Fisheries Commission is currently considering reducing 
effort in the lobster fishery. Any effort reduction measures 
implemented for the lobster fishery are likely to reduce the risk of 
entanglement of whales in that gear, but are not a part of this plan.
    Fishery-Specific Measures: The following measures are proposed for 
the four groups of fisheries covered in the ALWTRP. The measures are 
intended to decrease the risk of entangling large whales in gillnets 
and lobster gear. Although they did not reach consensus, the Team 
provided NMFS with a significant and useful framework for developing 
proposed implementing regulations. The gear modifications proposed by 
NMFS generally reflect the intent of the Team to reduce the risk of 
entanglement without creating an undue burden on the fishing industry. 
NMFS also considered whether the recommended measures would meet the 
goals of the MMPA. Certain areas, identified as high use areas by large 
whales during certain times of the year, were targeted for closures or 
a high level of gear restrictions. The following area closures and gear 
restrictions are intended to be implemented beginning in 1998 for the 
period specified, except for measures proposed for the Southeast drift 
gillnet fishery for sharks, which would be implemented beginning in 
November 1997.
American Lobster Trap/Pot Fisheries
    In addition to the buoy line requirements and contingency measures 
described above for all fisheries, NMFS proposes the following area-
specific measures for the lobster trap/pot fisheries covered in this 
plan.
    As discussed above, groundlines of lobster pot trawls represent an 
entanglement risk to whales, although the degree of risk relative to 
other parts of the gear is unknown. The lobster industry uses either 
sinking or floating groundline, depending on substrate and/or gear 
densities. Floating line is preferred in many areas to avoid snagging 
on rocky bottom or on other pots as well as to reduce chafing caused by 
contact with pots and with the bottom. The degree to which line floats 
between pots is unknown. Because right and humpback whales are known to 
use the lower part of the water column for feeding or other activities, 
even a modest curve to the groundline could still represent an 
entanglement threat, especially where the length of groundline between 
pots may be as long as the depth of the water column. The requirement 
of sinking groundline would reduce the potential for a high profile of 
the groundline and therefore reduce the entanglement threat represented 
by that part of the pot trawl.
    NMFS proposes to require modifications to lobster pot trawl 
groundlines only in certain areas with primarily sandy bottoms to 
minimize the amount of snagging and/or severing on rocky outcrops. 
Restricting sinking lines to these areas would not be expected to have 
a significant negative impact on the effectiveness in reducing whale 
entanglements involving accidental encounters, since whales are not 
likely to feed close to the bottom in rocky areas. However, there may 
be cases when whales, particularly juveniles, are attracted to gear 
even along rocky bottom, so some potential for entanglement remains. 
The NMFS

[[Page 16526]]

gear review and technical advisory group is expected to consider 
recommendations for alternatives to sinking groundline.
    Cape Cod Bay Critical Habitat Area: Based on comments in the Team 
Report, NMFS proposes to restrict fishing with lobster pot gear in the 
Cape Cod Bay critical habitat area, including both Federal and 
Commonwealth waters, from January 1 through May 15 of each year. Only 
certain types of lobster pot gear would be allowed during this period 
of high use by right whales. NMFS proposes to prohibit the use of 
single lobster pots or trawls of less than 4 pots during this time 
period. In addition, trawls could not be rigged with no more than 2 
buoy lines. The purpose of these requirements is to reduce and/or 
prevent an increase in the number of vertical lines in the water that a 
whale might encounter. NMFS also proposes to require that all 
groundlines used in lobster pot trawls in this area consist of sinking 
line.
    Based on comments in the Team Report, NMFS also proposes to 
restrict fishing with lobster pot gear in the Cape Cod Bay critical 
habitat area from May 16 through December 31. NMFS does not propose to 
prohibit the use of single pots from May 16 through December 31, 
because the likely response to this requirement may be for fishermen 
who now use single pots in optimal lobster habitat to add pots to their 
trawls rather than to decrease the number of buoy lines. Only one buoy 
line would be allowed on trawls of less than 4 pots. Otherwise, gear 
modifications proposed for the May 16 through December period are 
similar to those for the January 1 through May 15 period and would 
include breakaway buoy or weak buoy line, sinking buoy lines, and 
sinking groundlines.
    Great South Channel Critical Habitat Area: Based on comments in the 
Team Report, NMFS proposes to close all of the Great South Channel 
critical habitat area from April 1 to June 30 of each year to lobster 
pot gear until the Assistant Administrator determines that alternative 
fishing practices or gear modifications have been developed which 
reduce the risk of serious injury or mortality to whales to acceptable 
levels. As noted above, if right whale concentrations outside the usual 
``high-use'' period warrant additional action, the area may be closed, 
through a publication in the Federal Register.
    Although not allowing lobster pot gear in the area west of the 
Loran C 13710 line from April 1 to June 30 appears inconsistent with 
what NMFS proposes for sink gillnet gear in this area, NMFS believes 
that lobster pot gear poses a greater threat to right whales than does 
sink gillnet gear in this area. The offshore location generally 
requires that gillnetters tend their gear, whereas lobster pot gear in 
this area is often not checked for extended periods especially if there 
is bad weather.
    NMFS is proposing closure of the Great South Channel critical 
habitat to lobster pot gear during the high right whale use period, but 
proposes gear modifications in the Cape Cod Bay critical habitat over 
the comparable period. The rationale for this difference is that there 
is a higher likelihood that an entangled whale in Cape Cod Bay will be 
sighted and reported, due to the high level of vessel traffic and more 
research efforts in that area. Potential whale entanglements in Cape 
Cod Bay are considered more likely to be observed and reported to the 
disentanglement network. In addition, NMFS believes that 
disentanglement efforts may be more effective in reducing the potential 
for serious injuries and mortalities in these relatively shallow, 
nearshore waters than in offshore waters. The Great South Channel 
critical habitat is further offshore and little whale watching or 
survey effort exists there. The likelihood of observing an entangled 
whale offshore is lower, and offshore disentanglement efforts are 
subject to greater logistical impediments.
    In addition, differences in oceanographic conditions in the two 
regions may make a particular gear modification less effective in one 
area relative to the other. For example, the Great South Channel is 
much deeper than Cape Cod Bay and exhibits much stronger tides, 
requiring different fishing practices. NMFS' gear review and technical 
advisory group will be asked to consider oceanographic conditions in 
the Great South Channel in making gear recommendations that might be 
effective and practicable in that area.
    Although the Team Report contains discussion regarding the closure 
of Groundfish Management Area I, which covers part of the Great South 
Channel right whale critical habitat, to lobster fishing during the 
high whale use period, NMFS does not propose closing the area to 
lobster pot fishing at this time, as the frequency of right whale 
sightings in this area (already closed to gillnet gear for groundfish 
conservation measures) is quite low and the fishing effort minimal. 
Comments on this decision are requested.
    The Team Report provided comments on the lobster pot fisheries in 
the Great South Channel critical habitat area outside of the known high 
right whale use period. NMFS proposes to restrict lobster fishing in 
the Great South Channel right whale critical habitat area from January 
1 through March 31 and July 1 through December 31 of each year 
(beginning in 1998). Proposed restrictions during this time period 
include only sinking or modified sinking buoy lines, and breakaway 
buoys or weak buoy lines.
    Stellwagen Bank/Jeffreys Ledge Area: NMFS proposes to define the 
Stellwagen Bank/Jeffreys Ledge (SB/JL) area as the area delineated by 
the following points: the shoreline at 43\1/2\ deg. 00' N out to 
70 deg. W, then south along that line to 42 deg. N, then west along 
that line to the Massachusetts shoreline at the western end of Cape Cod 
Bay, excluding right whale critical habitat. The Team Report includes 
comments indicating a different northern boundary (43 deg.15' rather 
than 43 deg.30'). The northern and eastern boundaries proposed here are 
consistent with one of the groundfish area closures in the Northeast 
Multispecies Fishery Management Plan.
    Based on the Team Report and subsequent comments regarding this 
area, NMFS proposes to restrict lobster fishing in the SB/JL area from 
January 1 through December 31 of each year (beginning in 1998). 
Proposed restrictions during this time period include sinking 
groundline, sinking or modified sinking buoy lines, and breakaway buoys 
or weak buoy lines.
    Fishers should be aware that humpback and/or right whales are 
present in the SB/JL area most months of the year. If the gear 
modifications are not sufficient to reduce serious injury and mortality 
to right and humpback whales to achieve the 6-month PBR goal or the 5-
year ZMRG goal, additional restrictions or closures of certain portions 
of SB/JL may be necessary.
    All Other Areas throughout the East Coast Range of the American 
Lobster Pot Fishery not Addressed by Previous Measures: NMFS proposes 
to restrict fishing with American lobster pot gear from January 1 to 
December 31 in all other U.S. state and Federal waters north of 41 deg. 
N latitude and from December 1 to March 31 in all state and Federal 
waters south of 41 deg. N latitude. Beginning January 1, 1998, NMFS 
proposes to restrict these areas to allow only lobster pot gear that 
has sinking buoy lines or modified sinking buoy lines. NMFS requests 
comments on the possible exemption of waters landward of barrier 
islands, such as those in New Jersey and North Carolina, and other 
shallow water areas where whales are less likely to occur.

[[Page 16527]]

New England Multispecies Sink Gillnet Fishery
    In addition to the buoy line requirements and contingency measures 
described above for all fisheries, NMFS proposes the following area-
specific measures. Consistent with the comments of the Team Report, 
NMFS proposes a suite of modifications specific to sink gillnets. The 
purpose of these modifications is to maximize the probability that a 
whale will be able to break free of a sink gillnet. The modifications 
include prohibiting floating line everywhere except the headrope (cork 
line) and the bottom-most section of the buoy line, placing weak links 
between the net panels on the headrope and footrope (lead line) to 
reduce amount of gear attached to whale in case of entanglement, 
increasing length of the lines which connect the net to the anchor to 
maximize the holding power of the anchors, and limiting the thickness 
of headrope to enhance the likelihood that it will part when 
encountered by a whale. These measures would be implemented 
simultaneously because weak links are not expected to function properly 
without sufficient anchoring and scope of the groundline/bridle, and 
using more anchoring power without weak links could result in increased 
rate of drowning. Industry TRT members indicated that some of these 
modifications, such as an increased bridle-to-anchor length and 
increased anchoring power, are already in use to minimize loss of gear 
to mobile gear. NMFS solicits comments on the likely effectiveness of 
this suite of gear modifications and in particular on minimal breaking 
strengths of weak links which could be used while still allowing 
fishermen to haul their gear. In addition, NMFS also requests comments 
on typical depth or height of gillnets and whether that depth warrants 
the requirement of weak links in the footrope as well as the headrope.
    Cape Cod Bay Critical Habitat Area: The Team Report treated state 
and Federal waters of right whale critical habitat in Cape Cod Bay 
separately and did not reach consensus on gillnet restriction measures 
in the Federal portion of these waters. The Team Report discussed 
adopting for the state waters of Cape Cod Bay critical habitat the area 
and gear restrictions implemented by the Commonwealth of Massachusetts 
for this same area. NMFS supports the regulations adopted by the 
Commonwealth of Massachusetts for protecting right whales from 
entanglement in critical habitat within Massachusetts state waters of 
Cape Cod Bay. To provide consistent protection for right whales 
throughout the critical habitat area, NMFS proposes to treat state and 
Federal waters as one unit in Cape Cod Bay. NMFS intends to work 
closely with the Commonwealth of Massachusetts as the State 
regulations, which were implemented under emergency authority, are 
reviewed and modified through regular rulemaking procedures. NMFS will 
review State regulations in the context of this take reduction plan and 
its inherent goals.
    Based on comments in the Team Report, NMFS proposes that the entire 
right whale critical habitat in Cape Cod Bay be closed to sink gillnet 
gear from January 1 through May 15 of each year, until the Assistant 
Administrator determines that alternative fishing practices or gear 
modifications which significantly reduce the risk of serious injury or 
mortality to whales have been developed. As noted above, if whale 
concentrations outside the usual ``high-use'' period warrant additional 
action, the area may be closed for additional periods, through a 
publication in the Federal Register.
    To provide additional protection for all large whales, NMFS 
proposes to restrict sink gillnet fishing in the entire Cape Cod Bay 
critical habitat area from May 16 through December 31 of each year to 
allow only sink gillnet gear that has been modified as described above.
    Great South Channel Critical Habitat Area: Based on comments in the 
Team Report, NMFS proposes to close the portion of right whale critical 
habitat east of Loran C line 13710/43940 (Northwest Boundary) and 
13710/43650 (Southwest Boundary) from April 1 through June 30 to sink 
gillnet gear until the Assistant Administrator determines that 
alternative fishing practices or gear modifications have been developed 
which reduce the risk of serious injury or mortality to whales to 
acceptable levels. As discussed above, if whale concentrations outside 
the usual ``high-use'' period warrant additional action, the area may 
be closed.
    NMFS recognizes that the Team Report did not recommend a complete 
closure of the entire Great South Channel critical habitat area to sink 
gillnets. In the narrow band west of the Loran C points 13710/43940 and 
13710/43650, the Team considered the likelihood of entanglement of 
right whales remote. A recent NMFS analysis indicates that only 3% of 
historical right whale sightings occurred along that western edge of 
critical habitat. Further, this band is economically important to the 
sink gillnet fishery.
    Based on comments in the Team Report, NMFS proposes to restrict 
sink gillnet fishing in the portions of the Great South Channel right 
whale critical habitat area east of the Loran C 13710 line from January 
1 to March 31 and July 1 to December 31 of each year and the portion of 
right whale critical habitat west of Loran C 13710/43940 (Northwest 
Boundary) and 13710/43650 (Southwest Boundary) (the ``sliver area'') 
from January 1 through December 31 of each year to allow only sink 
gillnet gear that has been modified according to the specifications 
described above.
    Stellwagen Bank/Jeffreys Ledge: This area is defined as for the 
lobster pot fishery. Based on comments in the Team Report, NMFS 
proposes year-round restrictions in the SB/JL area to allow only sink 
gillnet gear that has been modified according to specifications 
described above. Fishers should be aware that humpback and/or right 
whales are present in the SB/JL area most months of the year and that 
if gear modifications are not sufficient to reduce serious injury and 
mortality to right and humpback whales to levels required under the 
MMPA, additional restrictions or closures may be necessary.
    All Other Areas throughout the Range of the Northeast Sink Gillnet 
Fishery not Addressed by Previous Measures: NMFS proposes to restrict 
fishing with sink gillnet gear from January 1 to December 31 in U.S. 
state and Federal waters east of 72 deg. 30' W (dividing line between 
Northeast sink gillnet fishery and mid-Atlantic coastal gillnet 
fishery) and north of a line running due east from the North Carolina/
South Carolina border. Beginning January 1, 1998, NMFS proposes to 
restrict sink gillnet fishing in this area to gear with sinking buoy 
lines or modified sinking buoy lines, and breakaway buoys or weak buoy 
lines. Beginning in 1999, the full suite of measures described above 
are proposed to be required.
    Since gillnet fisheries in Long Island Sound (inside a line from 
Orient Point-Plum Island-Fishers Island-Watch Hill), and waters 
landward of the first bridge embayments in Rhode Island and southern 
Massachusetts are classified as Category III inshore gillnet fisheries 
rather than as part of the Category I northeast sink gillnet fishery, 
those inshore fisheries would be exempt under this proposed rule.
U.S. Mid-Atlantic Coastal Gillnet Fisheries
    All anchored gillnet fisheries: NMFS proposes to restrict fishing 
with all anchored gillnet gear from December 1 through March 31 in mid-
Atlantic waters from Shinnecock Inlet on the southern Long Island, New 
York shore

[[Page 16528]]

south to a line running due east from the North Carolina-South Carolina 
border. Mid-Atlantic gillnet fisheries classified as Category III 
inshore gillnet fisheries are exempt from this proposed rule. NMFS 
requests comments on the possible exemption of waters landward of 
barrier islands, such as those in New Jersey and North Carolina, and 
other shallow water areas where whales are less likely to occur.
    Beginning January 1, 1998, and in addition to the buoy line 
requirements and contingency measures described above for all 
fisheries, NMFS proposes to restrict sink gillnet fishing in this area 
during the period from December 1 through March 31 to gear that has 
been modified according to the suite of measures outlined above for 
Northeast sink gillnet gear.
    Beginning in 1998, with respect to mid-Atlantic coastal gillnet 
anchored gear that is not sink gillnet gear, NMFS proposes to require 
only the standard requirements for sinking buoy lines or modified 
sinking buoy lines, and breakaway buoys or weak buoy lines during the 
winter/spring period from December 1 through March 31. Weak links are 
not proposed for anchored gillnets other than sink gillnets because the 
weak link system is not designed for nets fished on the surface or in 
the upper \2/3\ of the water column.
    Floating/drift gillnets: For the area and time outlined above, NMFS 
proposes to require all vessels using driftnets to haul all such gear 
and stow all such gear on the vessel before returning to port.
Southeast U.S. Driftnet Fishery
    Based on comments in the Team Report, NMFS proposes that the area 
from Sebastian Inlet, FL (27 deg.51 N latitude) to Savannah, GA 
(32 deg. N latitude) out to 80 deg. W longitude, be closed to driftnet 
fishing, except for strikenetting, each year from November 15 to March 
31. Strikenetting would be permitted under certain conditions set forth 
in the rule. Most of this area is right whale critical habitat.
    Also based on comments in the Team Report, NMFS proposes to require 
observer coverage for the use of driftnets in the area from West Palm 
Beach (26 deg.46.5' N latitude) to Sebastian Inlet (27 deg.51' N 
latitude), from November 15 to March 31 of each year. Notifications 
must be provided at least 48 hours prior to the fishing trip so that 
arrangements for an observer may be made. An observer must be taken on 
a fishing trip in this area if requested by NMFS.
    Reduction of Inactive Fishing Gear as Marine Debris. The Team 
Report discusses measures that could be taken to minimize the amount of 
fishing gear that has been damaged and set adrift, either by storms or 
user group conflicts, as it is believed that some marine mammal 
entanglements may involve such gear. Specific measures in the Team 
Report include: (1) Encourage participants in all fisheries to avoid 
discarding gear at sea; (2) encourage vessel operators to retrieve and 
deposit on shore any inactive gear encountered (existing penalties that 
would discourage this should be eliminated); (3) require any commercial 
fishing vessel that accidentally captures or snags fixed gear in a 
trawl or by other means or sets fixed gear adrift to retrieve all such 
gear and deposit it on shore (existing penalties that would discourage 
this should be eliminated); (4) require that such gear deposited on 
shore which carries any identifying markings be reported to the 
appropriate authorities. A system for tracking such gear should be 
established, allowing owners to retrieve gear; (5) NMFS should take 
appropriate measures for reducing gear conflicts that can result in 
gear set adrift (examples are implementation of the Gear Conflict 
Resolution for Offshore New England and the use of Vessel Tracking 
Systems); (6) require use of biodegradable, corrodible, or other 
rapidly degrading gear components where appropriate; (7) establish 
dockside disposal/recycling facilities at all ports used by commercial 
fisheries; and (8) make use of existing programs for recycling and 
disposing of inactive gear.
    NMFS agrees that the reduction of ``ghost'' gear may reduce the 
number of entanglements of marine mammals in fishing gear. NMFS intends 
to notify all Atlantic fisheries permit holders of the importance of 
bringing gear back to shore to be discarded properly. Additionally, 
NMFS proposes to review regulations currently in place concerning 
fishing gear or fishing practices that may increase or decrease marine 
``ghost'' gear and to determine what additional measures may be useful 
in reducing the potential for whale entanglement by this gear.
    NMFS has not included a Vessel Tracking System provision in this 
proposed rule pending the outcome and final disposition of this 
electronic monitoring system within the commercial fishing industry. 
NMFS invites comments on this issue. This system may encourage mobile 
gear vessels to avoid towing through areas where fixed gear is set and 
may encourage vessels to pick up damaged and inactive gear.
    Disentanglement Efforts. When entangled in most fishing gear, other 
than extremely heavy or anchored gear, whales may swim off with some or 
all of the gear still trailing. Some whales may eventually free 
themselves or survive for substantial periods of time while trailing 
gear, but the continued survival of such animals may be severely 
jeopardized by this gear.
    In 1984, the Center for Coastal Studies (CCS) in Provincetown, MA 
developed an approach for disentangling free-swimming large whales. 
This process can be very dangerous, and CCS is currently the only 
organization authorized to attempt such disentanglements on the U.S. 
Atlantic coast. NMFS has contracted CCS to perform this service in the 
Northeast area by supporting current efforts and the establishment of a 
regional Disentanglement Network (Network). Criteria for participation 
in the Network have been established, and experienced teams have been 
formed for New England waters. Additionally, rapid response capability 
has been developed to allow deployment to remote coasts or at sea. A 
relationship has been established with the Canadian Department of 
Fisheries and Oceans and whale biologists operating in the Bay of Fundy 
to respond to entanglement events in Canadian waters of the Gulf of 
Maine. Local teams have been identified for other areas along the U.S. 
Atlantic coast. These resources were developed primarily for response 
to entangled right whales.
    The Team Report discussed the following actions to improve and 
expand the effort to disentangle large whales along the east coast of 
the U.S.: (1) Continue authorization and support for the current 
Disentanglement Network; (2) expand the Network to the U.S. Mid-
Atlantic region by training identified response/support teams in 
Virginia, North Carolina and the Southeastern U.S. right whale critical 
habitat regions, and by developing protocols appropriate to each 
region; (3) support education and training of fishermen in 
identification, reporting and disentangling large whales, where 
appropriate, in all identified risk areas; (4) increase monitoring of 
at-risk whales in the region through opportunistic and dedicated 
surveys; (5) request support from the U.S. Coast Guard (USCG) in the SE 
Region similar to the level of support committed in the NE region, to 
achieve a coordinated effort; (6) seek support and coordination with 
other agencies with similar or overlapping responsibilities; (7) ensure 
fishermen are informed of requirements for reporting and 
indemnification resulting from the issuance of incidental take permits, 
and explore further possible

[[Page 16529]]

incentives for reporting entangled whales; (8) allow the Network to 
authorize individuals to stand by or attach tracking equipment to 
entangled gear; (9) consider all ways the 500-yard approach regulation 
may affect right whale protection; (10) consider reimbursing vessel 
operators for real expenses or loss of regulated fishing days when 
standing by a whale confirmed by an authorized group as entangled; (11) 
work with appropriate groups to ensure accurate, thorough and 
standardized reporting of entanglements and results in a central 
database; and (12) develop an analytical approach for future 
entanglement reports which considers an increase in reporting due to 
the actions referenced above, and which counts successful 
disentanglements in assessments of take reduction.
    NMFS intends to continue its authorization of and work to improve 
the current Disentanglement Network. NMFS has been working 
cooperatively with the Network and the USCG to extend the 
disentanglement efforts into mid-Atlantic and Southeastern waters. 
Currently, NMFS provides funds only for disentanglement in the 
Northeast. Disentanglement efforts have already been initiated outside 
New England waters; for example, during the winter of 1996, NMFS, USCG, 
the states of Georgia and Florida, the New England Aquarium and the 
Center for Coastal Studies worked cooperatively to attempt 
disentanglement and subsequent tracking of a right whale off the east 
coast of Florida. NMFS will work with CCS to form local ``first 
response'' teams which can respond to entanglements in other areas and 
of other species prior to (or in some cases in lieu of) dispatching the 
CCS rapid response teams. Included among improvements to the 
Disentanglement Network will be a strong educational component, to 
train fishers to identify and report entangled large whales. Such 
education will be included during skippers workshops planned under the 
``Education and Outreach'' portion of this ALWTRP. Additional training 
specific to the Disentanglement Network may also be held separately, as 
needed. NMFS is also funding and/or working cooperatively with other 
groups to expand the current survey effort to better monitor at-risk 
areas. For example, year-round aerial and vessel surveys in the mid-
Atlantic have recently been funded. These surveys will increase 
opportunities for sighting entangled whales.
    NMFS has been working cooperatively with the USCG in the Southeast 
U.S. as well as in the northeast to provide protection to whales. The 
USCG helps fund the southeast and northeast Early Warning Systems, 
which involve an aerial monitoring program designed to help avoid 
collisions between vessels and right whales on their calving grounds. 
The USCG also has been very helpful in providing vessel support for 
disentanglement efforts and carcass recovery in the southeast. In order 
to formalize this cooperative effort, NMFS may enter into a Memorandum 
of Understanding with the southeastern USCG districts, as has been 
accomplished with the First Coast Guard District operating in the 
northeast. NMFS is already cooperating extensively with coastal state 
agencies such as the Georgia Department of Environmental Resources and 
the Florida Department of Environmental Protection in disentanglements 
and other right whale recovery efforts. NMFS will continue working 
cooperatively with these state agencies, and will seek to expand such 
efforts to other state agencies involved with endangered marine species 
issues. Recently, the states of Maine and Massachusetts have been 
working with NMFS and the Disentanglement Network to develop whale 
identification materials and information on disentanglement to be 
distributed to vessels for use at sea.
    NMFS understands that cooperation by fishermen and others in 
reporting entangled whales is essential for the ultimate success of the 
ALWTRP. Reporting entanglement events creates the opportunity for the 
successful disentanglement of a whale that is entangled in fishing gear 
and is still alive. Additionally, reports of entangled whales, both 
dead or alive, improves the information available for assessing the 
success of this plan and developing future measures.
    Takes of marine mammals that are not listed as endangered or 
threatened are authorized under section 118 of the MMPA for vessels 
that are registered in the Marine Mammal Authorization Program. 
However, takes of endangered species can only be authorized under 
certain conditions specified in section 101(a)(5)(e) of the MMPA and if 
an incidental take statement is issued under the Endangered Species Act 
(ESA). Among other requirements, NMFS must determine that the expected 
level incidental serious injury or mortality of a threatened or 
endangered marine mammal resulting from commercial fishing operations 
will have a negligible impact on such stock. Until these conditions 
have been met, NMFS could not authorize takes of endangered whales, 
even if a take occurs by a vessel operating in compliance with the 
ALWTRP. Currently, takes from the western North Atlantic stocks of 
right, humpback and fin whales are not authorized.
    Consequently, NMFS does not have the authority to exempt fishers 
from ESA provisions that prohibit taking endangered whales. NMFS does, 
however, exercise broad prosecutorial discretion in deciding on a case 
by case basis when to prosecute and what level of penalty to seek. When 
exercising such discretion, NMFS will consider whether the taking was 
reported promptly, and will regard timely reporting as a mitigating 
factor when determining the appropriate enforcement response. This 
approach balances NMFS' statutory duty to endorse provisions of the ESA 
with its strong desire to minimize non-reporting for fear of 
prosecution.
    NMFS has considered the potential effects of the 500-yard interim 
final rule on future disentanglement efforts, and has incorporated into 
that rule an exception to allow approaches to investigate a right whale 
or injury or to assist in disentanglement provided that permission is 
received from NMFS designee prior to the approach. In addition, in 
order to facilitate greater success of disentanglement events, NMFS is 
considering other actions so that vessels operating in the Northeast 
Multispecies and American lobster fisheries may assist in 
disentanglement efforts. NMFS has no mechanism for authorizing 
disbursement of funds for reimbursing vessel operators for expenses, 
but encourages conservation organizations to consider implementing such 
a program. NMFS will approach the fishery management councils regarding 
reimbursing any loss of regulated fishing days resulting from a 
fisher's participation in a disentanglement effort. A similar 
provision, called the ``good samaritan'' provision, exists in several 
fishery management plans to obtain credit for fishing time lost while 
assisting search and rescue operations.
    NMFS currently maintains a centralized entanglement data base, and 
intends to work cooperatively with appropriate groups to improve the 
quality of the data and standardize reporting. Improvements to the 
current entanglement data base would include incorporation of 
supplementary data from original sources and information from 
examination of gear seen on or removed from whales. Tracking of 
successful disentanglements are to be incorporated in the data base, 
and

[[Page 16530]]

would be considered in assessing progress of take reduction measures.
    As stated above, not all whale entanglements result in serious 
injury or mortality. Monitoring of scarification and comparison of 
historic levels in the population, as noted by the Team, may help 
provide a basis for determining whether the various take reduction 
measures proposed in this plan have been effective in decreasing levels 
of interaction between whales and fishing gear.

Supplementary Take Reduction Initiatives

Fisher Education and Outreach

    The Team Report acknowledges that effective implementation of the 
ALWTRP will require the active participation of a majority of the 
fishing industry. To encourage this, the Team Report suggests that NMFS 
form an advisory group to assist in the implementation of educational 
workshops and outreach strategies to disseminate information to 
fishermen on measures to reduce large whale entanglements. The report 
recommends that education and outreach workshops be held to: (1) Inform 
fishermen of provisions of the ESA and MMPA, as well as intent and 
requirements of the ALWTRP; (2) train fishermen in deployment and 
maintenance of proposed gear modifications; (3) distribute fact sheets 
for use in whale identification and provision of information on 
seasonal distribution patterns; (4) train fishermen in protocol for 
whale disentanglement; (5) supply observer, stranding and entanglement 
data to fishermen; (6) encourage timely reporting of marine mammals 
that may be entangled in fishing gear; and (7) solicit information from 
fishermen on how to reduce marine mammal interactions. The Team Report 
recommends that such workshops be held throughout the Northeast, Mid-
Atlantic and Southeast regions of the U.S. Atlantic coast, and that 
fishermen be notified by mail of dates, locations and times of the 
proposed workshops. The Team Report also recommends that public 
relations materials should be developed and distributed through 
newsletters, newspapers, radio, television news, and the Internet.
    NMFS concurs with the recommendations of the Team Report to conduct 
fishermen education workshops, as well as other outreach strategies. 
Although NMFS does not propose to form a formal advisory group, NMFS 
intends to seek assistance concerning the workshops from SeaGrant and 
other groups that are experienced in outreach on marine issues. 
Workshops are proposed to be held throughout the areas of the affected 
fisheries to inform fishers of gear and area requirements as well as to 
address other topics as outlined in the Team Report.
    Other recommendations contained in the report include promotion of 
``responsible fishing practices.'' For example, the Team Report 
discusses the following measures with respect to the mid-Atlantic 
gillnet fisheries: (1) Gillnets and other fishing gear should not be 
set near whales; (2) gear should be removed as soon as possible if 
whale(s) move into the area being fished; (3) fishers using un-anchored 
gillnet gear during the high-risk period (December 1--March 31) should 
remain with actively fishing gear; and (4) any observed entanglements 
should be reported. NMFS proposes that such practices be discussed and 
supported during the fishermen education workshops described above.

Monitoring of Whale Stock Distribution and Entanglements

    The Team Report acknowledges that the long-term success of the plan 
depends on the ability to monitor interactions between whales and 
fisheries, as well as an improved knowledge of whale distribution and 
movements. The Team Report asserts that successful real-time monitoring 
of whale distribution could lead to better dynamic management (i.e., 
flexible area closures and/or gear modifications required during 
certain periods in certain areas) designed to avoid or respond to 
entanglements of large whales in fishing gear. The Team Report comments 
that data collection and monitoring programs should be created where 
needed, or existing programs improved to achieve a dynamic approach to 
reducing large whale entanglements, as well as to assess the success of 
the ALWTRP. The following items were included in the Team Report as 
significant aspects of an overall take reduction program:
Whale Distribution and Movement Patterns
    Issues to be addressed: (1) Distribution of whales; (2) movement 
patterns; and (3) stability of distribution in high-use/critical 
habitat areas. Possible measures to address these issues include 
establishing long-term and real time monitoring of whale distribution 
via aerial and vessel surveys, telemetry and photo documentation.
Whale Entanglements and Mortalities
    Issues to be addressed: (1) Mechanisms of whale entanglements; (2) 
geographic areas and portions of water column where whales become 
entangled; (3) gear whales are entangled in, rate of entanglement, 
serious injury and mortality; (4) effect on population size and 
recovery; (5) survivorship of entangled whales; and (6) survivorship of 
disentangled whales. Possible measures to address these issues are: (1) 
train personnel to recognize signs of entanglement-related injuries and 
improve stranding report consistency and accuracy; (2) establish 
repository for gear removed from stranded and/or entangled whales and 
develop process for examination and identification; and (3) develop 
entanglement/interaction reporting protocols to encourage fisher 
participation in monitoring and disentanglement efforts.
Fishing Effort
    Issues to be addressed: (1) Status of current information on 
occurrence and distribution regarding effort and gear type; and (2) 
identification of information needed for effective monitoring. Possible 
measures to address these issues are: (1) Improve reporting of fishing 
effort for area fished, amount of gear, and species targeted, by day; 
(2) develop improved methods for gear identification and reporting of 
gear loss; (3) examine fishing practices other than those considered in 
this ALWTRP for potential impacts to large whales; and (4) improve 
fishery participation in data collection needs.
Dynamic Management
    Issues to be addressed: (1) Surveillance-based management is useful 
for supporting research for implementation of the ALWTRP; and (2) 
research should echo the State of Massachusetts Plan for reducing right 
whale takes. Possible measures to address these issues are: (1) NMFS 
should work with appropriate agencies and research groups to develop a 
surveillance-based management plan to protect right whales; and (2) 
establish a narrow and appropriately focused system of dynamic 
management.
    NMFS agrees that the issues raised are important elements in 
understanding the nature of whale entanglements and developing 
subsequent management measures to reduce such entanglements. NMFS 
currently monitors whale distribution and movement patterns, and 
supports additional efforts for photo-identification, life history and 
other studies. Real-time monitoring of whale movements for fishery

[[Page 16531]]

management purposes is being used by the State of Massachusetts in 
conjunction with the newly established early warning system for ship 
strikes in Cape Cod Bay. The success of this program will be reviewed 
and may be expanded to other areas, if appropriate.
    NMFS plans to seek ways to incorporate the comments in the Team 
Report regarding entanglements and resulting mortalities into the 
existing Disentanglement Network efforts. Additional research may be 
supported through alternate funding sources such as Saltonstall-Kennedy 
grants or other such sources. Improving current information on fishery 
participation in data collection, methods for gear identification, and 
reporting gear loss will be effected through a combination of 
regulations and fisher education and outreach workshops. NMFS proposes 
to investigate and consult with the appropriate state agencies to 
improve information on fishery effort distribution. Monitoring effort 
in terms of the amount of gear present in the water (e.g., number of 
vertical lines or length of net) is an important element of determining 
whether effort reduction measures have been successful, or whether it 
has simply been displaced to other areas where whale entanglements may 
still occur.

Joint Initiatives With Canada to Reduce Whale Bycatch in Commercial 
Fisheries

    Large whales are known to be taken in lobster, gillnet, trap and 
weir fisheries in Canadian waters. The Team Report recognizes that 
regulatory and management regimes differ between Canada and the U.S., 
and agrees with the position of Canada that there is need to develop 
similar and complementary strategies to reduce the incidental take of 
large whales by commercial fisheries in Canadian Atlantic waters. It is 
the understanding of the Team that the Canadian Government is 
considering legislation which, if implemented, would require recovery 
plans for whale species identified as endangered, threatened or 
vulnerable. Canada is expected to establish a consultative program 
similar to the Team. This program would develop, within existing 
regulatory and management frameworks, programs that are compatible and 
complementary to the measures proposed by the Team. The Team Report 
comments that once the ALWTRP is open to public comment, NMFS should 
initiate discussions with the Canadian Department of Fisheries and 
Oceans (DFO) to: (1) Obtain comments from DFO on the ALWTRP; (2) urge 
Canada to develop a joint recovery plan under its Endangered Species 
Act, when final; (3) institute mechanisms to reduce large whale 
entanglements in Canadian waters, as well as a means to evaluate the 
effectiveness of any proposed take reduction strategies; and (4) 
outline a timetable for meetings between NMFS officials, Team 
representatives and DFO to review progress toward reducing 
entanglements of large whales in U.S. and Canadian waters.
    NMFS has been working cooperatively with the DFO towards take 
reduction efforts for both harbor porpoise and large whales for some 
time. NMFS anticipates continuation of these cooperative efforts. DFO 
participated as an observer on the Team, and indicated that Canada is 
expected to enact a new Endangered Species Act. Under this act, DFO 
would develop a joint recovery plan with NMFS, and form their own TRT. 
NMFS intends to continue to support and encourage these conservation 
efforts, and will continue to invite DFO's participation on the Team as 
a means of promoting effective bycatch reduction measures for large 
whales throughout western North Atlantic waters.

Exploration of Market Incentives to Reduce Whale Bycatch in Commercial 
Fisheries

    The Team discussed the formation of a committee of Team members and 
other interested parties to explore and develop incentives, including 
market and other voluntary incentives, for reducing entanglements of 
large whales. Also discussed was whether this committee should develop 
a process for incorporating these incentives into the take reduction 
effort. The committee, as envisioned by the Team, would include persons 
with experience or expertise in conservation, market-based incentives, 
seafood processing and distribution, and various fishing strategies.
    NMFS has not proposed to include this aspect of the Team's Report 
in the plan. NMFS believes it is more important to devote its resources 
to other aspects of this plan. Such efforts may be considered at future 
team meetings. Members of the Team and/or other interested parties may 
form a committee to investigate market or other voluntary incentives to 
reducing whale entanglements to present to the Team for consideration.

Classification

    This proposed rule does not contain new collection-of-information 
requirements subject to the Paperwork Reduction Act.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IFRA) 
that describes the impact this proposed rule, if adopted, would have on 
small entities. The American lobster pot, New England multispecies sink 
gillnet, Mid-Atlantic coastal gillnet, and Southeast driftnet fisheries 
are directly affected by the proposed action and are composed primarily 
of small business entities. The number of state and federal permit 
lobster permit holders is estimated to be 13,000. The numbers of 
vessels in the New England multispecies sink gillnet, Mid-Atlantic 
coastal gillnet, and Southeast shark driftnet fisheries are estimated 
to be 350, 650, and 10, respectively. The proposed rule does not 
include reporting or recordkeeping requirements, but does include 
requirements that fishing gear be marked and that gear be modified in 
various ways to reduce potential interactions with large whales. In 
certain cases, area closures are proposed.
    Currently, the American Lobster Fishery, the New England 
Multispecies Fishery, the weakfish and striped bass portion of the mid-
Atlantic coastal gillnet fishery, and the Atlantic shark fishery are 
subject to Federal regulations under 50 CFR Part 649, Subpart F of Part 
648, Part 697, and Part 678, respectively. This proposed rule is 
designed to complement those existing regulations and fishery 
management objectives by reducing the bycatch of large whales in these 
fisheries. A variety of regulatory alternatives were considered, 
including no action, area closures, and various gear modifications and 
restrictions as discussed above. With respect to some critical habitat 
areas, area closures are proposed in order to provide the necessary 
level of protection for the critically endangered northern right whale. 
In most cases, however, gear modifications represent the preferred 
alternative; the plan was designed to achieve the goals of the MMPA 
while minimizing the economic impact on small entities.
    The Assistant Administrator for Fisheries, NOAA, prepared a draft 
environmental assessment (draft EA) for this proposed rule under the 
National Environmental Policy Act. A copy of the draft EA and the IFRA 
is available upon request (see ADDRESSES).

References

    Blaylock, R.A., J.W. Hain, L.J. Hansen, D.L. Palka, and G.T. 
Waring. 1995. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessments. NOAA Technical Memorandum NMFS, NOAA-TM-NMFS-SEFSC-363. 
211p.
    Team Report. 1997. Draft Atlantic Large Whale Take Reduction 
Report. Report prepared by the Atlantic Large Whale Take Reduction 
Team and submitted to the

[[Page 16532]]

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

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: April 1, 1997.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended to read as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

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

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

    2. In section 229.2, definitions of ``American lobster or 
Lobster'', ``Anchored gillnet'', ``Breakaway buoy'', ``Bridle'', ``Buoy 
line'', ``Driftnet, drift gillnet or drift entanglement net'', ``Fish 
with or fishing with'', ``Footrope'', ``Gillnet'', ``Groundline'', 
``Headrope'', ``Lobster pot'', ``Lobster pot trawl'', Mid-Atlantic 
coastal waters'', Northeast waters'', ``Other anchored gillnet'', 
``Sink gillnet'', ``Sinking line'', Southeast waters'', ``Spotter 
plane'', ``Stellwagen Bank/Jeffreys Ledge area'', ``Strikenet or to 
fish with strikenet gear'', ``Tended gear or tend'', ``U.S. waters'', 
``Weak buoy line'', and ``weak link'' are added in alphabetical order 
to read:


Sec. 229.2  Definitions.

* * * * *
    American lobster or lobster means the species Homarus americanus.
    Anchored gillnet means any gillnet gear, including sink gillnets, 
that is set anywhere in the water column and which is anchored, secured 
or weighted to the bottom.
* * * * *
    Breakaway buoy means a buoy line equipped with a breakable section 
near the top (buoy) end of the line that will part when subjected to 
certain pull pressure and, after parting, will result in a knotless 
end, not thicker than the diameter of the line.
    Bridle means the lines connecting a gillnet to an anchor or buoy 
line.
    Buoy line means a line connecting fishing gear in the water to a 
buoy at the surface of the water.
* * * * *
    Driftnet, drift gillnet, or drift entanglement gear means gillnet 
gear that is not anchored, secured or weighted to the bottom.
    Fish with or fishing with means to use, set, or haul back gear or 
allow gear that is set to remain in the water.
* * * * *
    Footrope means the line, weighted or otherwise, to which the bottom 
edge of a gillnet is attached.
    Gillnet means fishing gear consisting of a wall of webbing or nets, 
designed or configured so that the webbing or nets are held 
approximately vertically in the water column designed to capture fish 
by entanglement, gilling, or wedging. Gillnets include gillnets of all 
types such as sink gillnets, other anchored gillnets, and drift 
gillnets.
    Groundline, with reference to lobster pot gear, means a line 
connecting lobster pots in a lobster pot trawl, and, with reference to 
gillnet gear, means a line connecting a gillnet or gillnet bridle to an 
anchor or buoy line.
    Headrope means the line at the top of a gillnet from which the mesh 
portion of the net is hung.
* * * * *
    Lobster pot means any trap, structure or other device that is 
placed on the ocean bottom and is designed to or is capable of catching 
lobsters.
    Lobster pot trawl means more than one lobster pot attached to a 
groundline.
    Mid-Atlantic coastal waters means waters west of the area bounded 
by the following points: the southern shoreline of Long Island, New 
York at 72 deg.30'W, then due south to the intersection of 72 deg.30'W 
with a line running due east from the North Carolina/South Carolina 
border, then due west along that line to the North Carolina/South 
Carolina border.
* * * * *
    Northeast waters means those U.S. waters east of 72 deg.30'W and 
north of a line running due east from the Virginia-North Carolina 
border.
* * * * *
    Other anchored gillnet means any anchored gillnet except sink 
gillnet.
* * * * *
    Sink gillnet has the meaning specified in 50 CFR 648.2.
    Sinking line means line that sinks and does not float at any point 
in the water column. Polypropylene line is not sinking line unless it 
contains a lead core.
* * * * *
    Southeast waters means waters south of a line extending due 
eastward from the North Carolina/South Carolina border.
* * * * *
    Spotter plane means a plane that is deployed for the purpose of 
locating schools of target fish for a fishing vessel that intends to 
set fishing gear on them.
* * * * *
    Stellwagen Bank/Jeffreys Ledge area means the area bounded by the 
Maine shoreline at 43 deg.30' N, then due east to 43 deg.30'N/
70 deg.00' W, then south to 42 deg.00' N/70 deg.00'W, then due west to 
the Massachusetts shoreline, then along the Cape Cod shoreline to 
42 deg.04.8' N/70 deg.10' W, then to 42 deg.12' N/70 deg.15' W, to 
42 deg.12' N/70 deg.30' W, to 42 deg.00' N/70 deg.30' W, then due west 
to the Massachusetts shoreline at 42 deg.00'N.
    Strikenet or to fish with strikenet gear means a gillnet, or a net 
similar in construction to a gillnet, that is designed so that when it 
is deployed, it encircles or encloses an area of water either with the 
net, or by utilizing the shoreline to complete encirclement.
* * * * *
    Tended gear or tend means active fishing gear that is physically 
attached to a vessel or to fish so that active gear is attached to the 
vessel.
    U.S. waters means both state waters and waters of the U.S. 
exclusive economic zone along the east coast of the United States from 
the Canadian/U.S. border southward to a line extending eastward from 
the southernmost tip of Florida on the Florida shore.
* * * * *
    Weak buoy line means a buoy line that will part when subjected to 
certain pull pressure and, after parting, will result in a knotless 
end, not thicker than the diameter of the line.
    Weak link means a breakable device that will part when subjected to 
certain pull pressure.
    3. In Sec. 229.3, paragraphs (g) through (j) are added to read as 
follows:


Sec. 229.3  Prohibitions.

* * * * *
    (g) It is prohibited to fish with lobster pot gear in the areas and 
for the times specified in Sec. 229.32(b) (3), (4), (5), (6) and (7) 
unless the lobster pot gear meets the marking requirements specified in 
Sec. 229.32(b)(1) and complies with the closures, modifications, and 
restrictions specified in Sec. 229.32(b) (2), (3), (4), (5), (6) and 
(7).
    (h) It is prohibited to fish with sink gillnet gear in the areas 
and for the times specified in Sec. 229.32(c) (3), (4), (5), (6) and 
(7) unless the sink gillnet gear meets the marking requirements 
specified in Sec. 229.32(c)(1) and complies with the closures, 
modifications, and restrictions specified in Sec. 229.32(c) (2), (3), 
(4), (5), (6) and (7).

[[Page 16533]]

    (i) It is prohibited to fish with coastal gillnet in the areas and 
for the times specified in Sec. 229.32(d)(3) unless the coastal gillnet 
gear meets the marking requirements specified in Sec. 229.32(d)(1) and 
complies with the restrictions specified in Sec. 229.32(d) (2) and (3).
    (j) It is prohibited to fish with shark driftnet gear in the areas 
and for the times specified in Sec. 229.32(e) (2) and (3) unless the 
coastal gillnet gear meets the marking requirements specified in 
Sec. 229.32(e)(1) and complies with the restrictions and requirements 
specified in Sec. 229.32(e) (2) and (3).
    4. A new Sec. 229.32 is added to subpart C to read as follows:

Subpart C--Take Reduction Plan Regulations and Emergency 
Regulations


Sec. 229.32  Atlantic large whale take reduction plan regulations.

    (a) Gear marking provisions. (1) Gear marking required for 
specified gear. (i) Specified gear. Specified fishing gear consists of: 
lobster pot gear or sink gillnet gear in Northeast waters; lobster pot 
gear or mid-Atlantic coastal gillnet gear in the mid-Atlantic coastal 
waters area; and shark driftnet gear in Southeast waters.
    (ii) Requirement. On or after January 1, 1998 and as otherwise 
required in paragraphs (b)(1), (c)(1), (d)(1), and (e)(1) of this 
section, any person who owns or fishes with specified fishing gear must 
mark that gear in order to identify the gear type and the region where 
it is used according to the gear marking code specified by paragraphs 
(a)(2) and (3) of this section, unless otherwise required by the 
Assistant Administrator under paragraph (f) of this section.
    (2) Gear-type color code. Gear must be marked with the appropriate 
color to designate gear-type as follows:

Lobster pot gear...........................  Red.                       
Sink gillnet gear..........................  Green.                     
Other anchored gillnet gear................  Yellow.                    
Driftnet gear..............................  Blue.                      
                                                                        

    (3) Region color code. Gear must be marked with the appropriate 
color to designate the area where the gear is set as follows:

Cape Cod Bay critical habitat area.....  Blue/orange.                   
Great South Channel critical habitat     Red/blue.                      
 area.                                                                  
Stellwagen Bank/Jeffreys Ledge area....  Yellow/orange.                 
Other Northeast waters.................  Green/orange.                  
Mid-Atlantic coastal waters............  Red/orange.                    
Southeastern U.S. waters...............  Green/red.                     
                                                                        

    (4) Markings. Each color of the color codes must be permanently 
marked on or along the line or lines specified under paragraphs (b)(1), 
(c)(1), (d)(1), and (e)(1) of this section. Each color of the color 
codes must be marked so that the colors are clearly visible when the 
gear is hauled or removed from the water. Each color of the region 
color code must be between 2 and 3 inches (5.1-7.6 cm) wide. The gear-
type color code must be between 4 and 5 inches (10.2-12.7 cm) wide. The 
color codes must be placed on the line either in the following order or 
in reverse order: The first color of the region color code, the second 
color of the region code, and the gear color code. All colors of these 
color codes must be placed immediately next to each other. If the color 
of the line next to a color code is the same or similar to a color 
code, an area of one to 2 inches (2.5-5.1 cm) next to that color code 
must be permanently marked with a white band. In marking or affixing 
the color code or associated neutral band, the line may be dyed or 
marked with thin colored whipping line, thin colored plastic or heat 
shrink tubing, or other material, or thin line may be woven into or 
through the line, but the marking material must not be connected by a 
knot in the line or increase the diameter of the line by more than 5 
percent of its original diameter. If the Assistant Administrator 
revises the gear marking requirements under paragraph (f) of this 
section, the gear must be marked in compliance with those requirements.
    (5) Inspection of gear and marking. At least once every 30 days, 
all specified gear that is in the water must be hauled and inspected to 
ensure that the gear is properly marked and otherwise in compliance 
with this section.
    (b) Restrictions applicable to lobster pot gear. (1) Gear marking 
requirements. No person may fish with lobster pot gear unless that gear 
is marked by gear type and region according to the gear marking code 
specified under paragraph (a) of this section. On and after January 1, 
1998, all buoy lines must be marked within 2 feet (0.6 m) of the top of 
the buoy line and approximately midway along the length of each buoy 
line according to the gear type and region. On and after January 1, 
1999, each section of groundline must be marked approximately midway 
between each pot according to gear type and region.
    (2) Gear modifications and restrictions (i) Type 1 lobster pot 
gear. Type 1 lobster pot gear is gear which complies with the following 
requirements:
    (A) Multi-pot trawls. It is a multiple pot trawl consisting of four 
or more lobster pots;
    (B) Limit on buoy lines. No more than two buoy lines are used per 
trawl;
    (C) Sinking buoy lines. All buoy lines are sinking line;
    (D) Breakaway buoys or weak buoy lines. All buoy lines and buoys 
comply with one of the following:
    (1) The buoy line is attached at the top of the line to a breakaway 
buoy. Unless the Assistant Administrator revises the gear requirements 
under paragraph (f) of this section, the breakaway buoy must be 
designed with a breaking strength of no more than 150 pounds (68 kg); 
or
    (2) The buoy line has a weak buoy line that is at least as long as 
the depth of the water at mean high water, is attached to the buoy at 
the top of the line, and is attached to a functional buoy line resting 
on the ocean bottom at the bottom of the weak buoy line. Unless the 
Assistant Administrator revises the gear requirements under paragraph 
(f) of this section, the weak buoy line must be designed with a 
breaking strength of no more than 150 pounds (68 kg); and
    (E) Sinking groundline. All groundlines are sinking line.
    (ii) Type 2 lobster pot gear. Type 2 lobster pot gear is gear which 
complies with the following requirements.
    (A) Limit on buoy lines. No more than one buoy line is used per 
trawl consisting of fewer than four pots, and no more than two buoy 
lines are used on any trawl consisting of four or more pots; and
    (B) Sinking buoy lines, breakway buoys or weak buoy lines, and 
sinking groundline. The gear complies with the gear requirements of 
paragraph (b)(2)(i) (C), (D) and (E) of this section.
    (iii) Type 3 lobster pot gear. Type 3 lobster pot gear is gear 
which complies with the following requirements:
    (A) Sinking or modified sinking buoy lines. All buoy lines are 
sinking line, except that floating line may be used if:
    (1) The floating line is not attached to the buoy, is used only in 
the bottom-

[[Page 16534]]

 most section of the buoy line, and is not longer than 10 percent of 
the depth of the water at mean low water;
    (2) The floating line is not larger than \1/2\ inch (1.27 cm) in 
diameter; and
    (3) The floating line section of the buoy line is attached to the 
sinking line by a splice and not by a knot; and
    (B) Limit of buoy lines, breakaway buoys or weak buoy lines, and 
sinking groundline. The gear complies with the gear requirements of 
paragraph (b)(2)(i) (B), (D) and (E) of this section.
    (iv) Type 4 lobster pot gear. Type 4 lobster pot gear is gear which 
complies with the following requirements:
    (A) Sinking or modified sinking buoy lines. It complies with the 
requirements of paragraph (b)(2)(iii)(A) of this section.
    (B) Limit on buoy lines and breakway buoys or weak buoy lines. It 
complies with the gear requirements of paragraph (b)(2)(i) (B) and (D) 
of this section.
    (3) Cape Cod Bay. (i) Restricted area. The Cape Cod Bay restricted 
area consists of the Cape Cod Bay Critical Habitat area specified under 
50 CFR 216.13(b) (copies of a chart depicting this area are available 
from the NE Regional Administrator upon request) unless the Assistant 
Administrator extends that area under paragraph (f) of this section.
    (ii) Type 1 gear restrictions. During the winter/spring restricted 
period, no person may fish with lobster pot gear in the Cape Cod Bay 
restricted area unless the lobster pot gear complies with the Type 1 
gear requirements specified under paragraph (b)(2)(i) of this section; 
or, if the Assistant Administrator revises the gear requirements under 
paragraph (f) of this section, the gear complies with those 
requirements. The winter/spring restricted period for this area is from 
January 1 until May 15 of each year unless the Assistant Administrator 
revises the restricted period under paragraph (f) of this section.
    (iii) Type 4 gear restrictions. On or after January 1, 1998, during 
the summer/fall restricted period, no person may fish with lobster pot 
gear in the Cape Cod Bay restricted area unless the lobster pot gear 
complies with the Type 4 gear requirements specified under paragraph 
(b)(2)(iv) of this section; or, if the Assistant Administrator revises 
the gear requirements under paragraph (f) of this section, the gear 
complies with those requirements. The summer/fall restricted period for 
this area is from May 16 through December 31, unless the Assistant 
Administrator revises the restricted period under paragraph (f) of this 
section.
    (4) Great South Channel. (i) Restricted area. The Great South 
Channel restricted area consists of the Great South Channel Critical 
Habitat area specified under 50 CFR 216.13(a) (copies of a chart 
depicting this area are available from the NE Regional Administrator 
upon request) unless the Assistant Administrator extends that area 
under paragraph (f) of this section.
    (ii) Closure. During the spring closed period, no person may fish 
with lobster gear in the Great South Channel restricted area unless the 
Assistant Administrator specifies gear modifications or alternative 
fishing practices under paragraph (f) of this section and the gear or 
practices comply with those specifications. The spring closed period 
for this area is from April 1 until June 30 of each year unless the 
Assistant Administrator revises the closed period under paragraph (f) 
of this section.
    (iii) Type 3 gear restrictions. Beginning on January 1, 1998, 
during the winter/summer/fall restricted period, no person may fish 
with lobster pot gear in the Great South Channel restricted area unless 
the lobster pot gear complies with the Type 3 gear requirements 
specified under paragraph (b)(2)(iii) of this section; or, if the 
Assistant Administrator revises the gear modification requirements 
under paragraph (f) of this section, the gear complies with those 
requirements. The winter/summer/fall restricted period for this area is 
from January 1 through March 31 and from July 1 through December 31 of 
each year, unless the Assistant Administrator revises the restricted 
period under paragraph (f) of this section.
    (5) Stellwagen Bank/Jeffreys Ledge. (i) Restricted area. The 
Stellwagen Bank/Jeffreys Ledge restricted area (copies of a chart 
depicting this area are available from the NE Regional Administrator 
upon request) consists of the area bounded by the Maine shoreline at 
43 deg.30' N, then due east to 43 deg.30'N/70 deg.00' W, then south to 
42 deg.00' N/70 deg.00'W, then due west to the Massachusetts shoreline, 
then along the Cape Cod shoreline to 42 deg.04.8' N/70 deg.10' W, then 
to 42 deg.12' N/70 deg.15' W, to 42 deg.12' N/70 deg.30' W, to 
42 deg.00' N/70 deg.30' W, then due west to the Massachusetts shoreline 
at 42 deg.00'N unless the Assistant Administrator extends that area 
under paragraph (f) of this section.
    (ii) Type 3 gear restrictions. On or after January 1, 1998, no 
person may fish with lobster pot gear in the Stellwagen Bank/Jeffreys 
Ledge restricted area unless the lobster pot gear complies with the 
Type 3 gear restriction requirements specified under paragraph 
(b)(3)(iii) of this section; or, if the Assistant Administrator revises 
the gear modification requirements under paragraph (f) of this section, 
the gear complies with those requirements. This restriction applies 
throughout the year unless the Assistant Administrator revises the 
restricted period under paragraph (f) of this section.
    (6) Other northern waters. (i) Description of the other northern 
waters. Other northern waters consist of all U.S. waters north of 
41 deg.00' N except the Cape Cod Bay restricted area, Great South 
Channel restricted areas, and the Stellwagen Bank/Jeffreys Ledge 
restricted area.
    (ii) Type 4 gear restrictions. On or after January 1, 1998, no 
person may fish with lobster pot gear in other northern waters unless 
the lobster pot gear complies with the Type 4 gear restriction 
requirements specified under paragraph (b)(2)(iv) of this section; or, 
if the Assistant Administrator revises the gear modification 
requirements under paragraph (f) of this section, the gear complies 
with those requirements. This restriction applies throughout the year 
unless the Assistant Administrator revises the restricted period under 
paragraph (f) of this section.
    (7) All other lobster waters. (i) Description of all other lobster 
waters. All other lobster waters consist of all U.S. waters south of 
41 deg.00' N.
    (ii) Type 4 gear restrictions. On or after January 1, 1998, during 
the winter restricted period, no person may fish with lobster pot gear 
in all other lobster waters unless the lobster pot gear complies with 
the Type 4 gear restriction requirements specified under paragraph 
(b)(2)(iv) of this section; or, if the Assistant Administrator revises 
the gear modification requirements under paragraph (f) of this section, 
the gear complies with those requirements. The winter restricted period 
for this area is from December 1 through March 31, unless the Assistant 
Administrator modifies the restricted period under paragraph (f) of 
this section.
    (c) Restrictions applicable to Northeast sink gillnet gear. (1) 
Sink gillnet gear marking requirements. No person may fish with sink 
gillnet gear in Northeast waters unless that gear is marked by gear 
type and region according to the gear marking code specified under 
paragraph (a) of this section. On and after January 1, 1998, all buoy 
lines must be marked within 2 feet (0.6 m) of the top of the buoy line 
and approximately midway along the length of the buoy line according to 
gear type and region. On and after January 1, 1999, all net panels in 
each string of a sink gillnet must be marked along the headrope at both 
ends of each panel according to gear type and region.

[[Page 16535]]

    (2) Gear modifications and restrictions. (i) Type 1 sink gillnet 
gear modifications. Type 1 sink gillnet gear is gear which complies 
with the following requirements:
    (A) Sinking line. All groundlines, bridle lines, anchor lines and 
other lines, except the headrope and bottom-most section of the buoy 
lines, are sinking line;
    (B) Headrope specifications. The headrope:
    (1) Is equipped with net floats and the diameter of the headrope 
does not exceed 5/16 inch (0.79 cm); or
    (2) Has a foam core and the diameter of the headrope does not 
exceed \1/2\ inch (1.27 cm);
    (C) Sinking or modified sinking buoy lines. All buoy lines are 
sinking line, except that floating line may be used if:
    (1) The floating line is not attached to the buoy, is used only in 
the bottom-most section of the buoy line, and is not longer than 10 
percent of the depth of the water at mean low water;
    (2) The floating line is not larger than \1/2\ inch (1.27 cm) in 
diameter; and
    (3) The floating line section of the buoy line is attached to the 
sinking line by a splice and not by a knot;
    (D) Breakaway buoys or weak buoy lines. All buoy lines and buoys 
comply with one of the following:
    (1) The buoy line is attached at the top of the line to a breakaway 
buoy. Unless the Assistant Administrator revises the gear requirements 
under paragraph (f) of this section, the breakaway buoy must be 
designed with a breaking strength of no more than 150 pounds (68 kg); 
or
    (2) The buoy line has a weak buoy line that is at least as long as 
the depth of the water at mean high water, is attached to the buoy at 
the top of the line, and is attached to a functional buoy line resting 
on the ocean bottom at the bottom of the weak buoy line. Unless the 
Assistant Administrator revises the gear requirements under paragraph 
(f) of this section, the weak buoy line must be designed with a 
breaking strength of no more than 150 pounds (68 kg);
    (E) Weak links. The gillnet is equipped with weak links on the 
headrope and on the footrope between each net panel. Unless the 
Assistant Administrator revises the gear requirements under paragraph 
(f) of this section, each weak link must be designed with a breaking 
strength of no more than 150 pounds (68 kg); and
    (F) Securely anchored. Each gillnet is securely anchored so that 
the anchor will not dislodge when there is a pull on any weak link of 
more than the applicable maximum breaking strength for the weak link.
    (G) Groundline. At each end of a string of net panels, an anchor is 
attached to the gillnet by a groundline and bridle with a combined 
length which is equal to or greater than 90 feet (27.7 m).
    (ii) Type 2 sink gillnet gear modifications. Type 2 sink gillnet 
gear is gear which complies with the requirements of paragraph 
(c)(2)(i)(C) and (D) of this section (requirements for sinking buoy 
lines or modified sinking buoy lines, and breakaway buoys or weak buoy 
lines).
    (3) Cape Cod Bay. (i) Restricted area. The Cape Cod Bay restricted 
area consists of the Cape Cod Bay Critical Habitat area specified under 
50 CFR 216.13(b) (copies of a chart depicting this area are available 
from the NE Regional Administrator upon request) unless the Assistant 
Administrator extends that area under paragraph (f) of this section.
    (ii) Closure. During the winter/spring closed period, no person may 
fish with sink gillnet gear in the Cape Cod Bay restricted area unless 
the Assistant Administrator specifies gear modifications or alternative 
fishing practices under paragraph (f) of this section and the gear or 
practices comply with those specifications. The winter/spring closed 
period for this area is from January 1 until May 15 of each year unless 
the Assistant Administrator revises the closed period under paragraph 
(f) of this section.
    (iii) Type 1 gear restrictions. During the summer/fall restricted 
period, no person may fish with sink gillnet gear in the Cape Cod Bay 
restricted area unless the gear complies with the Type 1 gear 
requirements specified under paragraph (b)(2)(i) of this section; or, 
if the Assistant Administrator revises the gear requirements under 
paragraph (f) of this section, the gear complies with those 
requirements. The summer/fall restricted period for this area is from 
May 16 through December 31 of each year unless the Assistant 
Administrator revises the restricted period under paragraph (f) of this 
section.
    (4) Great South Channel restricted area (excluding the sliver 
area). (i) Restricted area. The Great South Channel restricted area, 
excluding the sliver area, consists of the area bounded by lines 
connecting the following four points: 41 deg.02.2' N/69 deg.02' W, 
41 deg.43.5' N/69 deg.36.3' W, 42 deg.10' N/68 deg.31' W, and 
41 deg.38' N/68 deg.13' W (copies of a chart depicting this area are 
available from the NE Regional Administrator upon request), unless the 
Assistant Administrator extends that area under paragraph (f) of this 
section. This described area excludes the sliver area specified under 
paragraph (c)(5)(i) of this section.
    (ii) Closure. During the spring closed period, no person may fish 
with sink gillnet gear in the Great South Channel restricted area, 
excluding the sliver area, unless the Assistant Administrator specifies 
gear modifications or alternative fishing practices under paragraph (f) 
of this section. The spring closed period for this area is from April 1 
until June 30 of each year unless the Administrator revises the closed 
period under paragraph (f) of this section.
    (iii) Type 1 gear restrictions. Beginning on January 1, 1998, 
during the winter/summer/fall restricted period, no person may fish 
with sink gillnet gear in the Great South Channel restricted area 
unless the sink gillnet gear complies with the Type 1 gear requirements 
specified under paragraph (c)(2)(i) of this section; or, if the 
Assistant Administrator revises the gear modification requirements 
under paragraph (f) of this section, the gear complies with those 
requirements. The winter/summer/fall restricted period for this area is 
from January 1 through March 31 and from July 1 through December 31 of 
each year, unless the Assistant Administrator revises the restricted 
period under paragraph (f) of this section.
    (5) Great South Channel sliver restricted area. (i) Restricted 
area. The Great South Channel sliver restricted area consists of the 
area bounded by lines connecting the following points: 41 deg.02.2'N/
69 deg.02'W, 41 deg.43.5'N/69 deg.36.3'W, 41 deg.40'N/69 deg.45'W, and 
41 deg.00'N/69 deg.05'W, (copies of a chart depicting this area are 
available from the NE Regional Administrator upon request), unless the 
Assistant Administrator extends that area under paragraph (f) of this 
section.
    (ii) Type 1 gear restrictions. On or after January 1, 1998, no 
person may fish with sink gillnet gear in the Great South Channel 
sliver restricted area unless the sink gillnet gear complies with the 
Type 1 gear restrictions specified under paragraph (c)(2)(i) of this 
section or, if the Assistant Administrator revises the gear 
modification requirements under paragraph (f) of this section, the gear 
complies with those requirements. This restriction applies throughout 
the year unless the Assistant Administrator revises the restricted 
period under paragraph (f) of this section.
    (6) Stellwagen Bank/Jeffreys Ledge restricted area. (i) Description 
of the restricted area. The Stellwagen Bank/Jeffreys Ledge restricted 
area (copies of

[[Page 16536]]

a chart depicting this area are available from the NE Regional 
Administrator upon request) consists of the area bounded by the Maine 
shoreline at 43 deg.30' N due east 43 deg.3'N/70 deg.00' W, then south 
to 42 deg.00' N/70 deg.00' W, then due west to the Massachusetts 
shoreline at 42 deg.00'N, then along the Cape Cod shoreline to 
42 deg.04.8' N/70 deg.10' W, then to 42 deg.12' N/70 deg.15' W, then to 
42 deg.12' N/70 deg.30' W, then to 42 deg.00' N/70 deg.30' W, then west 
to the Massachusetts shoreline (copies of a chart depicting this area 
are available from the NE Regional Administrator upon request), unless 
the Assistant Administrator extends that area under paragraph (f) of 
this section.
    (ii) Type 1 gear restrictions. On or after January 1, 1998, no 
person may fish with sink gillnet gear in the Stellwagen Bank/Jeffreys 
Ledge restricted area unless the sink gillnet gear complies with the 
Type 1 gear restrictions specified under paragraph (c)(2)(i) of this 
section; or, if the Assistant Administrator revises the gear 
modification requirements under paragraph (f) of this section, the gear 
complies with those requirements. This restriction applies throughout 
the year unless the Assistant Administrator revises the restricted 
period under paragraph (f) of this section.
    (7) Other Northeast waters area. (i) Description of the other 
Northeast waters area. The other Northeast waters area consists of all 
Northeast waters except for the Cape Cod Bay restricted area, the Great 
South Channel and Great South Channel sliver restricted areas, all 
waters landward of the first bridge of any embayment in Rhode Island, 
and southern Massachusetts (to Monomoy Island) and all waters west of a 
line from the north fork of the eastern end of Long Island, NY (Orient 
Point to Plum Island to Fisher Island) to Watch Hill Rhode Island.
    (ii) Type 2 gear restrictions. From January 1 through December 31, 
1998, no person may fish with sink gillnet gear in the other Northeast 
waters area unless the sink gillnet gear complies with the Type 2 gear 
modification requirements specified under paragraph (c)(2)(ii) of this 
section; or, if the Assistant Administrator revises the gear 
modification requirements under paragraph (f) of this section, the gear 
complies with those requirements. This restriction applies throughout 
the year unless the Assistant Administrator revises the restricted 
period under paragraph (f) of this section.
    (iii) Type 1 gear restrictions. On or after January 1, 1999, no 
person may fish with sink gillnet gear in the other Northeast waters 
area unless the sink gillnet gear complies with the Type 1 gear 
modification requirements specified under paragraph (c)(2)(i) of this 
section; or, if the Assistant Administrator revises the gear 
modification requirements under paragraph (f) of this section, the gear 
complies with those requirements. This restriction applies throughout 
the year unless the Assistant Administrator revises the restricted 
period under paragraph (f) of this section.
    (d) Restrictions applicable to mid-Atlantic coastal gillnet gear. 
(1) Gear marking requirements. No person may fish with mid-Atlantic 
coastal gillnet gear unless that gear is marked by gear type and region 
according to the gear marking code specified under paragraph (a) of 
this section. On and after January 1, 1998, all buoy lines must be 
marked within 2 feet (0.6 m) of the top of the buoy line and midway 
along the length of the buoy line according to gear type and region. On 
and after January 1, 1999, all net panels in each string of a gillnet 
must be marked along the headrope at both ends of each panel according 
to gear type and region.
    (2) Mid-Atlantic coastal gillnet gear modifications and 
restrictions. (i) Type 1 mid-Atlantic coastal gillnet gear. Type 1 mid-
Atlantic coastal gillnet gear is sink gillnet gear which complies with 
the following requirements:
    (A) Sinking line. All groundlines, bridle lines, anchor lines and 
other lines, except the headrope and bottom-most section of the buoy 
lines, are sinking line;
    (B) Headrope specifications. The headrope:
    (1) Is equipped with net floats and the diameter of the headrope 
does not exceed \5/16\ inch (0.79 cm); or
    (2) Has a foam core and the diameter of the headrope does not 
exceed \1/2\ inch (1.27 cm);
    (C) Sinking or modified sinking buoy lines. All buoy lines are 
sinking line, except that floating line may be used if:
    (1) The floating line is not attached to the buoy, is used only in 
the bottom-most section of the buoy line, and is not longer than 10 
percent of the depth of the water at mean low water;
    (2) The floating line is not larger than \1/2\ inch (1.27 cm) in 
diameter; and
    (3) The floating line section of the buoy line is attached to the 
sinking line by a splice and not by a knot;
    (D) Breakaway buoys or weak buoy lines. All buoy lines and buoys 
comply with one of the following:
    (1) The buoy line is attached at the top of the line to a breakaway 
buoy. Unless the Assistant Administrator revises the gear requirements 
under paragraph (f) of this section, the breakaway buoy must be 
designed with a breaking strength of no more than 150 pounds (68 kg); 
or
    (2) The buoy line has a weak buoy line that is at least as long as 
the depth of the water at mean high water, is attached to the buoy at 
the top of the line, and is attached to a functional buoy line resting 
on the ocean bottom at the bottom of the weak buoy line. Unless the 
Assistant Administrator revises the gear requirements under paragraph 
(f) of this section, the weak buoy line must be designed with a 
breaking strength of no more than 150 pounds (68 kg);
    (E) Weak links. The gillnet is equipped with weak links on the 
headrope and on the footrope between each net panel. Unless the 
Assistant Administrator revises the gear requirements under paragraph 
(f) of this section, each weak link must be designed with a breaking 
strength of no more than 150 pounds (68 kg);
    (F) Securely anchored. Each gillnet is securely anchored so that 
the anchor will not dislodge when there is a pull on any weak link of 
more than the applicable maximum breaking strength for the weak; and
    (G) Groundline. At each end of a string of net panels, an anchor is 
attached to the gillnet by a groundline and bridle with a combined 
length which is equal to or greater than 90 feet (27.7 m).
    (ii) Type 2 mid-Atlantic coastal gillnet gear. Type 2 mid-Atlantic 
coastal gillnet gear is anchored gillnet gear, other than sink gillnet 
gear, which complies with the requirements of paragraph (d)(2)(i) (C) 
and (D) of this section (sinking buoy lines or modified sinking buoy 
lines, and breakaway buoys or weak buoy lines).
    (3) Mid-Atlantic coastal waters area. (i) Description. The mid-
Atlantic coastal waters area consists of all mid-Atlantic waters except 
that the following waters are excluded:
    (A) Waters landward of the first bridge of any embayment in Raritan 
and lower New York Bays in the New York Bight;
    (B) Waters north of a line drawn from the southern point of 
Nantuxent Cove (mouth of Cedar Creek, New Jersey) to the southern 
boundary of Bombay Hook National Wildlife Refuge at Kelly Island, 
Delaware (Port Mahon);
    (C) Waters in the Chesapeake Bay north of the Chesapeake Bay 
Bridge/Tunnel; and
    (D) All waters between the Outer Banks and the mainland from 
Morehead City, North Carolina, to the Virginia/North Carolina border.

[[Page 16537]]

    (ii) Type 1 (sink gillnet) mid-Atlantic coastal gillnet gear 
restrictions. On or after January 1, 1998, during the winter/spring 
restricted period, no person may fish with sink gillnet gear in the 
Mid-Atlantic coastal waters area unless the gillnet gear complies with 
the Type 1 gillnet gear restrictions specified under paragraph 
(d)(2)(i) of this section. The winter/spring restricted period for this 
area is from December 1 through March 31 unless the Assistant 
Administrator revises that restricted period under paragraph (f) of 
this section.
    (iii) Type 2 (other anchored gillnet) mid-Atlantic coastal gillnet 
gear restrictions. On or after January 1, 1998, during the winter/
spring restricted period, no person may fish with other anchored 
gillnet gear in the Mid-Atlantic coastal waters area unless the gillnet 
gear complies with the Type 2 gillnet gear restrictions specified under 
paragraph (d)(2)(ii) of this section. The winter/spring restricted 
period for this area is from December 1 through March 31 unless the 
Assistant Administrator revises that restricted period under paragraph 
(f) of this section.
    (iv) Driftnet gear--fishing practices requirements. No person may 
fish at night with driftnet gear in the mid-Atlantic coastal waters 
area unless that gear is tended. Before a vessel returns to port, all 
driftnet gear set by that vessel in the mid-Atlantic coastal waters 
area must be removed from the water and stowed on board the vessel.
    (e) Restrictions on shark driftnet gear. (1) Gear marking 
requirements. No person may fish with drift gillnet gear in Southeast 
waters unless that gear is marked by gear type and region according to 
the gear marking code specified under paragraph (a) of this section. On 
and after November 1, 1998, all buoy lines must be marked within 2 feet 
(0.6 m) of the top of the buoy line and midway along the length of the 
buoy line according to gear type and region. On and after November 1, 
1999, each net panel must be marked along both the float line and the 
lead line and at least once every 100 feet (30.8 m) along the floatline 
and bottom line.
    (2) Management areas. (i) SEUS restricted area. The Southeast U.S. 
restricted area consists of the SEUS critical habitat area described in 
50 CFR 226.13(c) plus an additional area along the coast north to 
32 deg.00' N (near Savannah, Georgia) from the shore and extending 
eastward out 15 nautical miles from the shore, and an additional small 
area along the coast south to 27 deg.51' N (near Sebastian Inlet, 
Florida) and extending from the shore eastward out 5 nautical miles 
from the shore (copies of a chart depicting this area are available 
from the SE Regional Administrator upon request), unless the Assistant 
Administrator extends that area under paragraph (f) of this section.
    (ii) SEUS observer area. The SEUS observer area consists of the 
area south of the SEUS restricted area and an additional area along the 
coast south to 26 deg.46.05' N (near West Palm Beach, Florida) and 
extending from the shore eastward out 5 nautical miles (copies of a 
chart depicting this area are available from the SE Regional 
Administrator upon request), unless the Assistant Administrator extends 
that area under paragraph (f) of this section.
    (3) Restrictions. (i) Closure. Except as provided under paragraph 
(e)(3)(iii) of this section, no person may fish with driftnet gear in 
the SEUS restricted area during the closed period. The closed period 
for this area is from November 1 through March 31 of the following 
year, unless the Assistant Administrator extends that closed period 
under paragraph (f) of this section.
    (ii) Observer requirement. No person may fish with driftnet gear in 
the SEUS observer area unless the captain of the vessel calls the SE 
Regional Office in St. Petersburg, Florida not less than 48 hours prior 
to departing on any fishing trip in order to arrange for observer 
coverage. If the Regional Office requests that an observer be taken on 
a fishing trip, no person may fish with driftnet gear in the SEUS 
observer area unless the observer is on board the vessel during the 
trip.
    (iii) Special provision for strikenets. Fishing with strikenet gear 
is exempt from the restriction under paragraph (e)(3)(iii) of this 
section if:
    (A) No nets are set at night or when visibility is less than 500 
yards (460 m);
    (B) Each set is made under the observation of a spotter plane;
    (C) No net is set within 3 nautical miles of a right, humpback or 
fin whale; and
    (D) If a right, humpback of fin whale moves within 3 nautical miles 
of the set gear, the gear is removed immediately from the water.
    (f) Contingency measures and other provisions. In addition to any 
other emergency authority under the MMPA, the Endangered Species Act, 
the Magnuson-Stevens Fishery Conservation and Management Act, or other 
appropriate authority, the Assistant Administrator may take action 
under this section in the following situations:
    (1) Unusual right whale patterns. The Assistant Administrator may 
impose additional temporary restrictions on specified gear under 
paragraph (a)(1)(i) of this section for the purpose of reducing the 
risk of interactions with right whales through a publication in the 
Federal Register if right whales are determined to be resident in the 
area. This determination will be based on sightings of four or more 
right whales in the area for 2 or more consecutive weeks or on 
alternative criteria specified by the Assistant Administrator under 
this paragraph (f). These additional restrictions may extend any 
restricted area specified under this section or restrict any other area 
along the Atlantic coast of the U.S., may revise any closed or 
restricted period specified under this section to regulate gear 
specified under paragraph (a)(1)(i) of this section, or take other 
similar action. The Assistant Administrator may remove these additional 
temporary restrictions through a publication in the Federal Register if 
right whales are determined to have left the area. This determination 
will be based on sighting efforts that produce no confirmed sightings 
for 1 week or more or other evidence that the right whales have left 
the area.
    (2) Gear failure. If a serious injury or mortality of a northern 
right whale occurs in an interaction with gear specified under 
paragraph (a)(1)(i) of this section in a restricted area and during a 
restricted period specified under this section, NMFS will assess the 
interaction. If NMFS determines that the interaction is attributable to 
restricted gear used in a critical habitat area, the Assistant 
Administrator shall close the area during the restricted period. If 
NMFS determines that the interaction is attributable to restricted gear 
used in any other restricted area, the Assistant Administrator shall 
close the restricted area during the restricted period or impose 
additional gear modifications or alternative fishing practices that 
will significantly reduce the risk of serious injury or mortality to 
right whales. The closure or additional restrictions will be imposed 
through a publication in the Federal Register.
    (3) Gear concerns. If an entanglement of a right whale or the 
serious injury or mortality of any endangered whale occurs as a result 
of an interaction with gear specified under paragraph (a)(1)(i) of this 
section at any time or in any area, NMFS will assess the interaction. 
If NMFS determines that the interaction is attributable to restricted 
gear, the Assistant Administrator may impose additional gear 
modifications or alternative fishing practices through a publication in 
the Federal Register, or may close a restricted area or areas until 
additional gear modifications or alternative fishing practices are 
imposed through a publication in the Federal Register.

[[Page 16538]]

    (4) Other special measures. If NMFS verifies that certain gear 
restrictions are effective in reducing serious injuries and mortalities 
of endangered whales; if new gear technology is developed and 
determined to be appropriate; if revised breaking strengths are 
determined to be appropriate; if new marking systems are developed and 
determined to be appropriate; if alternative criteria for identifying 
whether right whales are resident in an area is determined to be 
appropriate; if gear testing operations are considered appropriate; or 
for similar purposes, the Assistant Administrator may revise the 
requirements of this section through a publication in the Federal 
Register.
[FR Doc. 97-8738 Filed 4-4-97; 8:45 am]
BILLING CODE 3510-22-P