[Federal Register Volume 62, Number 140 (Tuesday, July 22, 1997)]
[Rules and Regulations]
[Pages 39157-39188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18997]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-7170-04; I.D. 031997B]
RIN 0648-AI84


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

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

ACTION: Interim final rule.

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SUMMARY: NMFS by this action establishes a take reduction plan, and 
issues an interim final rule implementing that plan, to reduce serious 
injury and mortality to four large whale stocks that occurs incidental 
to certain fisheries. The target whale stocks are: The North Atlantic 
right whale (Eubalaena glacialis), western North Atlantic stock, 
humpback whale (Megaptera novaeangliae) western North Atlantic stock, 
fin whale (Balaenoptera physalus) western North Atlantic stock, and 
minke whale (Balaenoptera acutorostrata), Canadian East Coast stock. 
Covered by the plan are fisheries: For multiple groundfish species, 
including monkfish and dogfish, in the New England Multispecies sink 
gillnet fishery; for multiple species in the U.S. mid-Atlantic coastal 
gillnet fisheries; for lobster in the interim final rule includes time 
and area closures for the lobster, anchored gillnet and shark drift 
gillnet fisheries, gear requirements, including a general prohibition 
on having line floating at the surface in these fisheries, a 
prohibition on storing inactive gear at sea; and restrictions on 
setting shark drift gillnets and drift gillnets in the mid-Atlantic. 
The plan also contains non-regulatory aspects, including 
recommendations for gear research, public outreach and increasing 
efforts to disentangle whales caught in fishing gear.

DATES: Except for Secs. 229.32 (b), (c)(1), (d)(1), (e)(1), and (f)(1) 
(the gear marking requirements), the regulations are effective November 
15, 1997.
    Sections 229.32 (b), (c)(1), (d)(1), (e)(1), and (f)(1) (the gear 
marking requirements) are effective January 1, 1998. If the Office of 
Management and Budget gives approval for the information collection 
requirements in these sections at a later date, NOAA will publish a 
timely document in the Federal Register with the new effective date.
    Comments on the plan, the interim final rule, and paperwork burden 
estimates must be received by October 15, 1997.

ADDRESSES: Comments should be sent to: Chief, Marine Mammal Division, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910. Copies of the Environmental Assessment accompanying 
this interim rule can be obtained by writing to the same address. 
Comments regarding the burden-hour estimates or any other aspect of the 
collection of information requirements contained in the interim final 
rule should also be sent to the Office of Information and Regulatory 
Affairs, OMB, Attention: NOAA Desk Officer, Washington, DC 20503. 
Copies of the 1996 Stock Assessment Reports for northern right whales, 
humpback whales, fin whales and minke whales may be obtained by writing 
to Gordon Waring, NMFS, 166 Water St., Woods Hole, MA 02543.

FOR FURTHER INFORMATION CONTACT: Kim Thounhurst, NMFS, Northeast 
Region, 508-281-9138; Bridget Mansfield, NMFS, Southeast Region, 813-
570-5312; or Michael Payne, NMFS, Office of Protected Resources, 301-
713-2322.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) requires commercial 
fisheries to reduce the incidental mortality and serious injury of 
marine mammals to insignificant levels approaching a zero mortality and 
serious injury rate by April 30, 2001 (section 118 (b)(1)).
    For some marine mammal stocks and some fisheries, section 118(f) 
requires NMFS to develop and implement take reduction plans to assist 
in recovery or to prevent depletion. Take reductions plans are required 
for each ``strategic stock.'' A strategic stock is a stock: (1) For 
which the level of direct human-caused mortality exceeds the potential 
biological removal (PBR) level; (2) that is declining and is likely to 
be listed under the Endangered Species Act (ESA) in the foreseeable 
future; or (3) that is listed as a threatened or endangered species 
under the ESA or as a depleted species under the MMPA. Fisheries 
primarily affected by take reduction plans are those classified as 
``Category I'' or ``Category II'' fisheries under section 118(c)(1)(A) 
(i) or (ii) of the MMPA. Category I fisheries have frequent incidental 
mortality and serious injury of marine mammals. Category II fisheries 
have occasional incidental mortality and serious injury of marine 
mammals.
    The immediate goal of a take reduction plan is to reduce, within 6 
months of its implementation, the mortality and serious injury of 
strategic stocks incidentally taken in the course of U.S. commercial 
fishing operations to below the PBR levels established for such stocks. 
The PBR level is defined in the MMPA as the maximum number of animals, 
not including natural mortalities, that may be removed from a marine 
mammal stock while allowing that stock to reach or maintain its optimum 
sustainable population. The parameters for calculating the PBR level 
are described by the MMPA.

[[Page 39158]]

    The long-term goal of a take reduction plan is to reduce, within 5 
years of its implementation, the incidental mortality and serious 
injury of strategic marine mammals taken in the course of commercial 
fishing operations to insignificant levels approaching a zero mortality 
and serious injury rate, taking into account the economics of the 
fishery, the availability of existing technology, and existing state or 
regional fishery management plans. Unlike PBR, the MMPA does not define 
how to calculate the ``zero mortality rate goal'' (ZMRG). For the 
purposes of this rule, NMFS intends to interpret ZMRG to be 10 percent 
of the PBR level for each stock until a formal definition is 
established.
    Through this document, NMFS publishes an Atlantic Large Whale Take 
Reduction Plan (ALWTRP) and an interim final rule implementing that 
plan. The plan, in conjunction with the Offshore Cetacean Take 
Reduction Plan, currently being developed, is intended to meet the 
goals stated above for right whales, humpback, and fin whales, which 
are listed as endangered species under the ESA (and are thus considered 
strategic stocks under the MMPA). Although minke whales are not 
considered strategic at this time, the ALWTRP is also expected to 
reduce takes of minke whales. The plan may be amended in the future to 
take account of new information or circumstances.
    The fisheries affected by this plan are: Anchored gillnet fisheries 
including the New England sink gillnet fishery, the Gulf of Maine/U.S. 
Mid-Atlantic lobster trap/pot fishery, the U.S. mid-Atlantic coastal 
gillnet fisheries, and the Southeastern U.S. Atlantic drift gillnet 
fishery for sharks. The New England Multispecies sink gillnet fishery 
is a Category I fishery that has an historical incidental bycatch of 
humpback, minke, and possibly fin whales. This gear type has been 
documented to entangle right whales in Canadian waters. Additionally, 
entanglements of right whales in unspecified gillnets have been 
recorded for U.S. waters, although U.S. sink gillnets have not been 
conclusively identified as having entangled right whales. The Gulf of 
Maine/U.S. mid-Atlantic lobster trap/pot fishery is a Category I 
fishery that has an historical bycatch of right, humpback, fin and 
minke whales. The mid-Atlantic coastal gillnet fisheries are considered 
a Category II fisheries complex that has an historical incidental 
bycatch of humpback whales. The Southeastern U.S. Atlantic drift 
gillnet fishery for sharks is a Category II fishery that is believed to 
be responsible for bycatch of at least one right whale.
    The pelagic drift gillnet fishery is a Category I fishery which has 
recorded takes of large whales. Those interactions will be addressed in 
the Atlantic Offshore Cetacean Take Reduction Plan.
    Other fisheries operating on the U.S. Atlantic Coast have a low 
level of historical bycatch of large whales but some may potentially 
take large whales, because the gear is similar to that used by the four 
fisheries regulated by this rule. These fisheries include the tuna hand 
line/hook-and-line fishery, groundfish (bottom) longline/hook-and-line 
fishery, surface gillnet fishery for small pelagic fishes, pot 
fisheries other than lobster pot, finfish staked trap fisheries, and 
weir/stop seine fisheries. Currently, these fisheries are either 
classified as Category III or are unclassified. NMFS will continue to 
assess the appropriateness of these classifications and may recommend a 
reclassification in the future if evidence is found that any fishery 
contributes significantly to the overall entanglement problem.
    Some waters are exempt from this plan. The basic rule for the 
exempted water boundaries is that all waters landward of the first 
bridge over any embayment, harbor or inlet will be exempted. Some bays 
that do not have bridges over them are also exempted, including 
Penobscot Bay, Casco Bay, Long Island Sound, Delaware Bay and 
Chesapeake Bay. South of the Virginia/North Carolina border, all waters 
landward of the demarcation line of the International Regulations for 
Preventing Collisions at Sea, 1972 (72 COLREGS line) are exempted. 
These are all areas where large whale occurrences are so rare that NMFS 
believes gear requirements will have no measurable effect on reducing 
entanglements. For a precise definition of the exempted areas, see the 
regulation section of this document.

Current Entanglement Rates and Future Targets

    The information in this section is from the 1996 Stock Assessment 
Reports (Waring et al., 1996) compiled by NMFS as required by the MMPA. 
Additional information about the population biology and human-caused 
sources of mortalities and serious injuries is included in the Stock 
Assessment Reports, which are available from NMFS (see ADDRESSES).
    Some entanglements of large whales were observed by the NMFS sea 
sampling program; however, most records come from various sources such 
as small vessel operators. Limitations on the use of the available 
entanglement data include: (1) Not all observed events are reported; 
(2) most reports are opportunistic rather than from systematic data 
collection; consequently, conclusions cannot be made regarding actual 
entanglement levels; (3) identifying gear type or the fishery involved 
is often problematic; and (4) identifying the location where the 
entanglement first occurred is often difficult since the first 
observation usually occurs after the animal has left the original 
location.
    North Atlantic Right Whales--Most of the measures in this plan 
focus on ways to reduce the risk of serious injury and mortality to 
right whales, both because the right whales' population status is more 
critical than that of any other large whale and because right whales 
are the only endangered large whale in U.S. Atlantic waters for which 
the PBR level is known to be exceeded. The North Atlantic right whale 
is one of the most endangered species in the world, numbering only 
around 300 animals. The 1996 stock assessment compiled by NMFS 
estimates that a minimum of 1.1 right whales from the western North 
Atlantic stock are seriously injured or killed annually by entanglement 
in U.S. fishing gear from 1991 through 1996. The reports available to 
NMFS often do not contain the detail necessary to attribute an 
entanglement to a particular fishery or location. However, lobster pot 
gear and pelagic drift gillnet gear are known to have contributed to 
these entanglements. Longer-term records held by NMFS include 
entanglements of right whales in other gillnets, including gillnets in 
Canada and in the southeastern United States. Unobserved entanglements 
are also known to occur, based on observed scarred animals. More than 
half of all right whales bear scars that appear to be from 
entanglements. NMFS is unable to estimate the rate of these unobserved 
events.
    The overall rate or serious injuries or mortalities of right whales 
by commercial fisheries must be reduced from 1.1 animals per year to 
less than the PBR level of 0.4 animals per year to meet the 6-month 
goal set by the MMPA.
    Humpback Whales--The 1996 Stock Assessment Reports estimate that 
rate of serious injury and mortality of humpback whales due to fishery 
interactions is 4.1 animals per year. Of this value, 0.7 animals per 
year were observed by NMFS observers. The remaining 3.4 animals per 
year are from known entanglements not directly observed by NMFS. The 
PBR level for this stock is 9.7 whales per year. Therefore, NMFS has 
determined that a reduction in take for the western North

[[Page 39159]]

Atlantic stock of this species is not required for these fisheries to 
meet the 6-month goal.
    Fin Whales--Although serious injury and mortality due to 
entanglement has been documented for this stock of fin whales over the 
1991-1995 period, none of those events can be conclusively attributed 
to any of the four fisheries groups covered in this plan. The total 
known fishery-related mortality and serious injury rate for this stock 
is less than 10 percent of the PBR level, which is calculated to be 3.4 
fin whales per year. Therefore, NMFS has determined that a reduction in 
take for the western North Atlantic stock of this species is not 
required for these fisheries to meet the 6-month goal. The 1996 Stock 
Assessment Report concludes that the known fishery-related mortality 
and serious injury for this stock is less than 10 percent of the PBR 
level and can be considered to be approaching the ZMRG. This assessment 
may change in the future. NMFS has records of fin whale entanglements 
that have not been analyzed, however, and intends to complete the 
analysis of these records soon. It should be noted that known 
entanglements of fin whales are rare. The number of entangled fin whale 
sightings is likely to be negatively biased, because carcasses usually 
sink and are therefore less likely to be observed.
    Minke Whales--The 1996 NMFS stock assessment report estimates that 
2.5 minke whales are seriously injured or die from fishery-related 
encounters. This level does not exceed the PBR level of 21 for this 
stock. Therefore, NMFS has determined that a reduction in take for the 
western North Atlantic stock of this species is not required for these 
fisheries to meet the 6-month goal. This species is not listed as 
threatened or endangered under the ESA or as depleted under the MMPA. 
Measures implemented to reduce the entanglement rate of right and 
humpback whales may reduce the entanglement rate for minke whales, 
facilitating progress of that stock toward ZMRG.

Atlantic Large Whale Take Reduction Plan

    As stated above and as required by the MMPA, the plan has two 
goals. The first goal is to reduce serious injuries and mortalities of 
right whales in U.S. commercial fisheries to below 0.4 animals per year 
by January 1998 in conjunction with the Atlantic Offshore Cetacean Take 
Reduction Plan. The second goal is to reduce by April 30, 2001 
entanglement-related serious injuries and mortalities of right whales, 
humpback whales, fin whales, and minke whales to insignificant levels 
approaching a zero mortality and serious injury rate, taking into 
account the economics of the fisheries, the availability of existing 
technology and existing State and regional fishery management plans.
    Achieving these goals will be difficult, particularly for right 
whales. NMFS has identified two approaches for reducing the risk of 
serious injury or mortality to right whales to achieve the PBR level 
and reducing that risk still further to achieve ZMRG. One approach is 
through extensive closures of large areas of the ocean to lobster and 
gillnet fishermen. This approach would guarantee reduction of 
entanglements causing serious injury and mortalities but only at a high 
cost to many fishermen.
    The second approach is to close critical habitat areas only and to 
modify fishing practices in a manner designed to create a realistic 
potential of achieving MMPA objectives without sacrificing large parts 
of a vital fishing industry. This approach does not carry the guarantee 
of the first approach but it is calculated to have a reasonable chance 
for success. This approach emphasizes cooperation with the fishermen 
and takes advantage of their presence on the water to improve the 
disentanglement effort and to enlist their aid in developing gear 
modifications that will reduce bycatch while minimizing costs to the 
fishery. Disentanglement efforts may work with large whales, which can 
live for months or years carrying entangling gear, whereas they would 
not work for small cetaceans such as harbor porpoises, which tend to 
drown when entangled. The current estimate of serious injury and 
mortality to right whales is 1.1 animals per year. If one additional 
right whale is saved each year through fishermen's efforts to call in 
sightings of entangled whales and to stand by to assist in 
disentanglement efforts, this would go a long way to minimizing the 
bycatch problem. Likewise, if four additional humpback whales are 
disentangled per year, the entanglement rate might be below ZMRG. 
Furthermore, the fishing industry is the best source of new ideas for 
gear modifications to reduce bycatch and having the cooperation of the 
industry could have 10,000 more vessels involved in sighting and 
reporting entanglement events to the disentanglement network. Such 
ideas are more likely to be forthcoming if cooperation is emphasized.
    In this plan, NMFS adopts the second approach. In essence, the plan 
encourages the fishing industry to take responsibility for reducing 
takes of large whales, through measures that are designed to foster 
cooperation with NMFS and the Atlantic Large Whale Take Reduction Team 
(TRT), a group of stakeholders convened by NMFS to advise it on ways to 
reduce serious injuries and mortalities to large whales due to 
entanglements in fishing gear. Adopting a cooperative approach and 
emphasizing disentanglement and gear research does not preclude 
adopting additional measures later should that be necessary to meet the 
standards of the MMPA. Steps to achieve the short-term goal.
    NMFS believes that the plan and the interim final rule, plus 
measures earlier this year and other measures to be taken under other 
take reduction plans, including the upcoming Atlantic Offshore Cetacean 
Take Reduction Plan, will reduce serious injury and mortality of right 
whales to below the PBR level within 6 months.
    This plan is expected to achieve the necessary take reductions 
within 6 months through: (1) Closures of critical habitats to some gear 
types during times when right whales are usually present; (2) 
restricting the way strike nets are set in the southeastern U.S. 
driftnet fishery to minimize the risk of entanglement; (3) requiring 
that all lobster and sink gillnet gear be set in such a way as to 
prevent line from floating at the surface; (4) requiring all lobster 
and anchored gillnet gear to have at least some additional 
characteristics that are likely to reduce the risks of entanglements; 
(5) requiring that drift gillnets in the mid-Atlantic be either tended 
or stored on board at night; (6) improving the voluntary network of 
persons trained to assist in disentangling right whales; and (7) 
prohibiting storage of inactive gear in the ocean.
    The degree of risk reduction achieved by each of these measures 
cannot be quantified in advance. An analysis of whether the PBR level 
may have been achieved can only be made after the fact.
    Right whales are typically found in the Cape Cod Bay Critical 
Habitat from January 1 through May 15 and in the Great South Channel 
critical habitat from April 1 through June 30. This interim final rule 
closes the Cape Cod Bay Critical Habitat to sink gillnet fishing during 
the high right whale use period (January 1 through May 15) until 
modified gear or alternative fishing practices that reduce the 
incidence or impact of entanglements are available. Lobster pot gear in 
that area will be allowed but will have to be substantially modified to 
minimize the risk of

[[Page 39160]]

entangling right whales. Lobster pot gear will be prohibited during the 
high right whale use months in the Great South Channel (April 1 through 
June 30), most of which will also be closed to gillnet fishing, until 
modified gear or alternative fishing practices that reduce the 
incidence or impact of entanglements are available.
    Sink gillnets may be set during the April through June high right 
whale use period in a ``sliver area'' of the Great South Channel 
critical habitat. The sliver area is comprised of the waters in the 
Great South Channel critical habitat west of the LORAN C 13710 line. 
Only three percent of right whale sightings have occurred in that area, 
and it was determined that a closure is not necessary to reduce 
likelihood of entanglements.
    Although not allowing lobster pot gear in the area west of the 
Loran C 13710 line from April 1 through June 30 may appear inconsistent 
with allowing sink gillnet gear in this area, NMFS believes that 
lobster pot gear poses a greater threat to right whales than does sink 
gillnet gear in this area. The offshore location generally requires 
that gillnetters tend their gear, whereas lobster pot gear in this area 
is often not checked for extended periods especially if there is bad 
weather.
    NMFS is closing the Great South Channel critical habitat to lobster 
pot gear during the high right whale use period but will allow fishing 
with strict gear requirements in the Cape Cod Bay critical habitat over 
the comparable period. The rationale for this difference is that there 
is a higher likelihood that an entangled whale in Cape Cod Bay will be 
sighted and reported, due to the high level of vessel traffic and more 
research efforts in that area. Potential whale entanglements in Cape 
Cod Bay are considered more likely to be observed and reported to the 
disentanglement network. In addition, NMFS believes that 
disentanglement efforts may be more effective in reducing the potential 
for serious injuries and mortalities in these relatively shallow, near-
shore waters than in offshore waters. The Great South Channel critical 
habitat is further offshore and little whale-watching or survey effort 
exists there. The likelihood of observing an entangled whale offshore 
is lower, and offshore disentanglement efforts are subject to greater 
logistical impediments.
    An area from Sebastian Inlet, FL, to Savannah, GA, out to 80 deg. W 
long. is closed to all shark driftnet fishing, except for 
strikenetting, each year from November 15 through March 31. This closed 
area includes the southeastern U.S. right whale critical habitat, which 
is a nursery area for mothers and calves.
    Strikenetting in southeast waters is permitted during the high risk 
period only if: (1) No nets are set at night or when visibility is less 
than 500 yards (460 m), (2) each set is made under the observation of a 
spotter plane, (3) no net is set within 3 miles of a right, humpback or 
fin whale, and (4) if a whale comes within 3 miles of set gear, the 
gear is removed from the water immediately. A distance of 3 miles was 
selected because it is believed to allow sufficient time (half an hour) 
for gear to be pulled from the water before a whale reached a net. NMFS 
believes these measures will minimize the risk of entangling any large 
whale.
    This rule also requires that all lobster and anchored gillnet gear 
be rigged in such a way as to prevent the buoy line from floating at 
the surface at any time. All large whales are vulnerable to 
entanglement in any line floating on the surface of the water. Right 
whales are particularly vulnerable to this entanglement threat, since 
they are known to ``skim feed'' by swimming slowly at the surface with 
their mouths open.
    NMFS is also establishing lists of gear characteristics that are 
expected to decrease the risks of entanglement (see below for lists). 
Lobster pot gear and anchored gillnet gear used in low risk areas will 
be required to have at least one of the characteristics. Similar gear 
set in high risk areas are required to have at least two of these 
characteristics. There are slightly different requirements for inshore 
and offshore lobster fisheries because of the much heavier gear 
requirements for fishing offshore. The lists published in this interim 
final rule are based on public comments and the recommendations of the 
Gear Advisory Group and reflect current general fishing practices.
    The main purpose of this measure is to help achieve the long-term 
goal by initiating a flexible process of gear modification over the 
next 4 years (see discussion under ``steps to achieve ZMRG'' below). To 
achieve the short-term goal, NMFS is relying primarily on closures, 
disentanglement, and other mandatory gear restrictions, not on the use 
of options from the gear lists. The Take Reduction Technology Lists 
contain gear specifications that have been shown to be stable in the 
water and catch fish, but that represent a reduction in entanglement 
risk over other gear that is also currently in use. Many fishermen may 
already be using gear that complies with the current list, but some 
fishermen will have to modify their gear to comply with this 
regulation; hence, there will be a small immediate risk reduction from 
this requirement.
    This rule also requires that mid-Atlantic drift gillnet gear be 
either removed from the water each night or be attached to the vessel. 
The purpose of this measure is to reduce the chances that a whale will 
encounter gear that is not anchored. This provision is in effect from 
December 1 through March 31 of each year, during the time when whales, 
primarily right and humpback whales, are most frequently seen in the 
mid-Atlantic.
    Disentangling a whale can reduce the seriousness of an injury or 
prevent death due to entanglement. NMFS continues to commit funds to 
support and improve the disentanglement effort to help meet both the 
six month and the long-term goal (see discussion under ``steps to 
achieve ZMRG'' below).

Steps to Achieve the Zero Mortality Rate Goal

    The plan has the realistic potential to reach the 5-year goal by 
continually reducing the number of entanglements causing serious injury 
and mortality to a level of 10 percent of the PBR level. If the plan 
succeeds in reaching 10 percent of the PBR level, this would be 
equivalent of achieving the most conservative estimate of ZMRG. The 
likelihood of succeeding in reducing such entanglement to 10 percent of 
the PBR level depends on many factors. Progress toward the ZMRG is 
expected to be achieved primarily through continued improvements to the 
disentanglement response teams and through gear research that 
identifies appropriate gear modifications that further reduce either 
the likelihood or the seriousness of an entanglement. This effort will 
only succeed with the willing participation of the fishing industry, 
especially in reporting and assisting in disentanglement efforts and in 
developing gear that will reduce the risks of entanglement. 
Accordingly, the plan emphasizes outreach and education efforts to 
share information between NMFS and fishermen, research on gear 
modifications, and active involvement of interest groups through the 
take reduction team process. This does not rule out the possibility of 
further closures if gear modifications and disentanglement do not 
appear able to achieve ZMRG.
    The steps in this ALWTRP designed to facilitate continued 
reductions in entanglements include: (1) A commitment to improve public 
involvement in take reduction efforts, including consulting with the 
TRT and the Gear Advisory Group and

[[Page 39161]]

conducting outreach and educational workshops for fishermen; (2) 
instituting ``Take Reduction Technology Lists'' from which fishermen 
must choose gear characteristics that are intended to decrease the 
risks of entanglement; (3) facilitating further gear modification 
research; (4) continuing to improve the disentanglement effort, 
including encouraging more cooperation from fishermen; (5) prohibiting 
``wet storage'' of gear; (6) implementing a gear marking program, (7) 
developing contingency plans in cooperation with states for when right 
whales are present at unexpected times and places; (8) working with 
Canada to decrease entanglements in its waters; (9) improving 
monitoring of the right whale population distribution and biology, and 
(10) an abbreviated rulemaking process (codified in this document) to 
allow NMFS to change the requirements of the plan through notification 
in the Federal Register, thereby improving the responsiveness of NMFS.
    NMFS intends to make active use of the TRT to review progress and 
make recommendations on how to continue to decrease serious injuries 
and mortalities due to entanglements. As a first step in that process, 
NMFS will convene the TRT in the fall of 1997 to review this plan and 
its associated interim final rule. NMFS may modify the plan if it 
receives a consensus recommendation from the team to do so. In 
addition, NMFS plans to reconvene the TRT in 1998 to review the 
progress made during the first 6 months of the plan.
    NMFS is developing fishermen outreach and education programs. These 
programs will have two main goals: (1) To inform fishermen of the 
status of whales, the requirements of the MMPA and this plan and to 
improve cooperation with disentanglement efforts, and (2) to exchange 
views and solicit advice from fishermen on appropriate gear 
modifications for their area or other take reduction methods.
    The use of gear modifications to minimize the risks of entangling 
large whales will be a key to the long-term success of this plan. As a 
first step in that direction, NMFS will require that by January 1998 
all lobster and anchored gillnet gear, including sink and coastal 
gillnet gear, have some characteristics that reduce the risks 
associated with entanglement. Because fishing conditions vary 
throughout the Atlantic, NMFS will not require specific modifications 
to be applied to all gear at this time. Instead, this interim rule 
contains lists of acceptable gear characteristics based on information 
received from public comments, including discussions of the Gear 
Advisory Group. Vessels fishing in low risk areas will be required to 
ensure that their gear has at least one of the listed characteristics. 
Those fishing in areas where the risk of entanglement is high (i.e., 
Stellwagen and Jeffreys Ledge and in northern critical habitats during 
periods of relatively low right whale use) are required to ensure that 
their gear has at least two of the listed characteristics. Because 
fishing conditions require heavier gear offshore, for the time being 
there are different breaking strengths for offshore and inshore lobster 
pot gear.
    The lists of acceptable gear characteristics from which fishermen 
may select to comply with the regulations in this plan are as follows:

Lobster Take Reduction Technology List

    1. All buoy lines are 7/16 inches in diameter or less.
    2. All buoys are attached to the buoy line with a weak link having 
a maximum breaking strength of up to 1100 lb. Weak links may include 
swivels, plastic weak links, rope of appropriate breaking strength, hog 
rings, or rope stapled to a buoy stick.
    3. For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line with a weak link having a maximum breaking 
strength of up to 3780 lb.
    4. For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line by a section of rope no more than 3/4 the 
diameter of the buoy line.
    5. All buoy lines are composed entirely of sinking line.
    6. All ground lines are made of sinking line.

Gillnet Take Reduction Technology List

    1. All buoy lines are \7/16\ inches in diameter or less.
    2. All buoys are attached to the buoy line with a weak link having 
a maximum breaking strength of up to 1100 lbs. Weak links may include 
swivels, plastic weak links, rope of appropriate breaking strength, hog 
rings, or rope stapled to a buoy stick.
    3. Gear is anchored with the holding power of a 22 lb danforth-
style anchor at each end.
    4. Gear is anchored with a 50 lb dead weight at each end.
    5. Nets are attached to a lead line weighing 100 lbs or more per 
300 feet.
    6. Weak links with a breaking strength of up to 1100 lbs are 
installed in the float rope between net panels.
    7. All buoy lines are composed entirely of sinking line.
    The above lists may be modified in the future if new gear is 
developed and tested in field trials or if any of the characteristics 
on the list published with this interim final rule are determined by 
NMFS to be insufficient to reduce entanglement risks. NMFS intends to 
seek the advice of the TRT and the Gear Advisory Group, and to seek 
public comment, before adding items to the lists.
    The Gear Advisory Group also made several suggestions for gear 
characteristics that are not included in the lists above. Specifically, 
the Group recommended that light-colored line be used, because it might 
increase visibility, and that sections of buoy lines be joined with a 
splice rather than a knot, because a splice is smoother and is less 
likely to snag on a whale. NMFS recommends that fishermen adopt these 
techniques, because they may help reduce entanglements. NMFS is not 
including these measures on the Take Reduction Technology Lists at this 
time, however. NMFS has no scientific evidence that the color of the 
line has any effect on entanglements, and, although NMFS believes that 
spliced line will generally be smoother than lines with knots in them, 
fishermen have developed some knots that are almost as smooth as 
splices (in order to pass through the hauler more easily). Knotted line 
is also weaker than spliced line and may part more easily if a whale is 
entangled in it.
    NMFS is also supporting research and development of gear 
modifications that may reduce the risk of entangling large whales. The 
Gear Advisory Group identified several techniques that might be 
effective with further development. NMFS has committed funds this year 
to study several of these. NMFS expects to continue to provide funding 
for this kind of research in the future. NMFS expects to reconvene the 
Gear Advisory Group to review progress on gear research and development 
and to continue to suggest future research directions. Note that NMFS 
can authorize experimental fisheries to test gear that does not comply 
with the gear requirements set forth in this rule.
    Since 1984, NMFS has authorized the Center for Coastal Studies 
(CCS) disentanglement team to conduct whale rescue in the southern Gulf 
of Maine. Since 1995, NMFS has contracted with CCS to expand the 
disentanglement effort to other areas of the northeast. A first 
response network has been established for most of the Gulf of Maine/Bay 
of Fundy and the Georgia/Florida right whale critical habitat area, and 
collaborators will be identified in other areas of the northeast. With 
increased involvement from the U.S. Coast Guard and Canada's Department 
of Fisheries and Oceans, the

[[Page 39162]]

disentanglement network can now respond to entanglements on most areas 
of the U.S. east coast and the Scotia/Fundy region. NMFS and the CCS 
team have also been working with the State of Maine and the 
Commonwealth of Massachusetts to involve the fishing industry in the 
disentanglement network by providing information and assisting the CCS 
team with reporting and monitoring entanglements. NMFS is also funding 
and/or working cooperatively with other groups to expand the current 
survey effort to better monitor at-risk areas. These surveys will 
increase opportunities for sighting entangled whales, as well as 
warning ships of the presence of right whales in an area.
    The removal of lost or unused gear from the water will also help 
reduce the risk of entanglement. This rule contains a prohibition on 
``wet storage'' of lobster pot gear--the practice of storing gear in 
the water--through a requirement that gear be hauled at least every 
thirty days. (Note that this provision was characterized in the 
proposed rule as a 30-day ``inspection'' requirement, a term which 
caused confusion.) NMFS does not know the extent of the practice of wet 
storage of gear, and solicits comments on the number of persons 
affected by this provision.
    To further reduce ``ghost gear'', NMFS will notify all Atlantic 
fisheries permit holders of the importance of bringing gear back to 
shore to be discarded properly, as called for under 33 U.S.C. 1901 et 
seq. and the Protocol of 1978 relating to the International Convention 
for the Prevention of Pollution from Ships (MARPOL Protocol). In 
addition, NMFS, in coordination with the U.S. Coast Guard, will review 
regulations currently in place that concern fishing gear or fishing 
practices that may increase or decrease the amount of ghost gear to 
determine what additional measure may be useful in reducing the 
potential for whale entanglement by such gear.
    Through the gear marking requirements, NMFS hopes to obtain more 
data regarding where entanglements occur and what gear types need 
further attention. NMFS will require marks on six categories of gear--
inshore and offshore lobster pot gear, anchored gillnets in northeast 
and mid-Atlantic waters, mid-Atlantic driftnet gear and shark driftnet 
gear. Because inshore and offshore lobster pot gear have different 
requirements, these types must be marked differently.
    The gear marking measure is still under review by the Office of 
Management and Budget for compliance with the Paperwork Reduction Act, 
and it will not become effective until a notice is published in the 
Federal Register. Note that this measure will not in itself reduce 
entanglements, but may provide useful information for designing future 
bycatch reduction measures to achieve ZMRG.
    Although NMFS can predict where some right whales will be found at 
some times of the year, right whales have been sighted in virtually all 
coastal and offshore waters from Florida to Maine. Generally these 
sightings are of small, transient groups or individuals. On occasion, 
however, larger groups of right whales are resident at times and in 
locations that are unexpected, including times when large amounts of 
fishing gear may be deployed in the area. Under these circumstances, 
the risk of entanglement is higher. For example, all right whale 
entanglements in U.S. lobster pot gear where the location was known 
occurred either outside critical habitat or outside the peak season in 
critical habitat. There may be a number of ways to decrease that risk, 
including continuous monitoring of the whales' movements to alert a 
disentanglement team immediately in the event that a whale happens to 
get entangled. NMFS will work with states and fishermen's associations 
to develop quick response networks to these unusual right whale 
distribution patterns.
    NMFS will continue to cooperate with the Canadian Department of 
Fisheries and Oceans (DFO) regarding take reduction efforts for large 
whales. NMFS will share data with DFO scientists and will continue to 
invite DFO's participation on the Team as a means of promoting 
effective bycatch reduction measures for large whales throughout 
western North Atlantic waters.
    The regulations implemented through this notice contain a section 
(Sec. 229.32(g)(2)) that allows the Assistant Administrator (AA) of 
NMFS to make changes to the requirements through an abbreviated rule-
making process. The process would allow the AA to modify the 
regulations implementing this plan through a notification in the 
Federal Register. The purpose of this measure is to allow NMFS to 
respond more quickly to make necessary adjustments to the requirements 
of the plan. This may be particularly important if necessary to extend 
a closure because right whales are still in an area or to open an area 
if NMFS determines that right whales have departed early.

Monitoring Strategies

    NMFS estimates annual serious injury and mortality rates based on a 
5-year period, as a part of its requirement to develop annual marine 
mammal Stock Assessment Reports. Expected rates of entanglement during 
any 6-month period may vary from the 5-year annual average. This 
variation may be most pronounced where the sample size is particularly 
small, as is the case with right whale entanglements. Consequently, it 
will be impossible to prove within 6 months that the goal of reducing 
incidental takes of right whales to below the PBR level has been 
achieved. Under some circumstances, however, it may be possible to 
prove that the PBR level has not been reached. For example, the PBR 
level for right whales is 0.4, if more than two serious injuries or 
mortalities incidental to commercial fishing operations are observed 
within 5 years after the plan is promulgated, then it will be known 
that the PBR goal will not have been achieved.
    NMFS will continue to monitor entanglements of all large whale 
species. Assessment of the success in bycatch reduction measures will 
be based on reports from the NMFS observer program, examination of 
stranded whales, abundance and distribution surveys, fishermen's 
reports and opportunistic reports of entanglement events. NMFS will 
expand field survey efforts to assess population abundance and 
distribution, particularly in the Great South Channel. The 
effectiveness of implemented take reduction measures may be most 
apparent through monitoring the entanglement rate for humpback whales, 
since this species has the highest known entanglement rate of the large 
whales on the U.S. Atlantic coast. A decrease in entanglements of 
humpback whales will be taken as supportive but not conclusive evidence 
that the risk of entangling right, fin and minke whales has been 
reduced.
    NMFS will also continue to gather information on how and where 
entanglements occur. For the duration of this plan, NMFS will form a 
repository for gear removed from entangled whales.
    In the proposed plan, NMFS suggested a gear marking system that was 
intended to provide information about where entanglements occur and 
what gear is causing the entanglements. Knowing this information would 
be important to help devise any further take reduction measures. 
However, the proposed system was considered too cumbersome by many 
commenters and questions were raised about whether marked gear 
retrieved from a whale would determine definitively where that whale 
was entangled. Furthermore, some marking of lobster pots, gillnets and 
associated surface gear is currently

[[Page 39163]]

required or being considered under Federal or state fishery management 
plans for the four groups of fisheries covered by this plan. In this 
plan, NMFS intends to implement a simplified gear-marking requirement 
as soon as Paperwork Reduction Act approval is obtained from OMB. NMFS 
will also consult with State governments, the Take Reduction Team, and 
members of the Gear Advisory Group with a view to improving the gear 
marking system by 1999.

Fishery Specific Measures

American Lobster Trap/Pot Fisheries

    Except for gear set in the exempted areas mentioned above, all 
lobster pot gear must be set in such a way as to avoid having line 
floating at the surface at any time. Floating line is allowed between 
two buoys on the same buoy line and between a buoy and a high flyer.
    Lobster pot gear is prohibited from the Great South Channel 
critical habitat area from April 1 through June 30, until the AA 
determines that alternative fishing practices or gear modifications 
have been developed that reduce the risk of serious injury or mortality 
to whales to acceptable levels. From July 1 through March 31, lobster 
pot gear set in the Great South Channel critical habitat must have at 
least two characteristics from the Take Reduction Technology List. Note 
that, although portions of the Great South Channel critical habitat 
would be considered offshore, NMFS believes that the weaker maximum 
breaking strengths allowed for inshore gear are more appropriate in the 
critical habitat, since right whales may return to the area when not 
expected. Therefore, the Great South Channel critical habitat is not 
considered ``offshore'' for the purposes of this plan. Lobster pot gear 
set in this area must comply with the inshore gear characteristics.
    From January 1 through May 15, lobster pot gear may only be set in 
the Cape Cod Bay critical habitat if it meets certain criteria. All 
lobster pot gear set during that time must have all four of the 
following characteristics. (1) All buoys must be attached to the buoy 
line with a weak link with a maximum breaking strength of up to 1100 
lb. (2) All pots must be set in trawls of four or more pots. (3) All 
buoy lines must be made of sinking line, except for the bottom third of 
the line, which may be floating line. (4) All ground lines between pots 
must be made of sinking line. These measures conform to the current 
requirements set by the State of Massachusetts for its portion of the 
critical habitat during that period. From May 16 to December 31, 
lobster pot gear set in the Federal portion of the Cape Cod Bay 
critical habitat must have at least two characteristics from the Take 
Reduction Technology List.
    For either critical habitat, if NMFS determines that the right 
whales have departed from that area for the season, the AA may allow 
lobster pot gear to be set, provided that the gear meets the 
requirements for lobster gear set in the Stellwagen Bank/Jeffreys Ledge 
area.
    The Stellwagen Bank/Jeffreys Ledge (SB/JL) area is defined as all 
Federal waters in the Gulf of Maine that lie to the south of the 
43 deg.15' N lat. line and west of the 70 deg. W long. line, except 
right whale critical habitat. Note that the boundaries of the 
Stellwagen Bank/Jeffreys Ledge Area have been changed from what NMFS 
proposed in April. State waters are no longer included, and the 
northern boundary has been changed. The new boundaries more accurately 
reflect the area where the risk of whale/fishery interactions is high, 
based on the frequency of right whale and humpback whale sightings.
    In the Stellwagen Bank/Jeffreys Ledge area, lobster pot gear must 
always have at least two characteristics from the Lobster Take 
Reduction Technology list. Fishermen should be aware that humpback and/
or right whales are present in this area most months of the year. 
Entanglements of both species are above the ZMRG. If the gear 
modifications are not sufficient to reduce serious injury and mortality 
to right and humpback whales to achieve the 6-month PBR goal or the 5-
year ZMRG goal, additional restrictions or closures of certain portions 
of this area may be necessary. A decision to close any portion of this 
area would be made in consultation with the TRT, and after public 
comment.
    In all other areas, lobster pot gear must be set with at least one 
characteristic from the Lobster Take Reduction Technology list. This 
requirement applies year-round in the inshore and offshore lobster 
fishery north of 41 deg.30' N lat. and from December 1 through March 31 
in the inshore and offshore lobster fishery south of 41 deg.30' N lat. 
Some of the gear characteristics are only applicable to offshore 
lobster fishing because conditions offshore require heavier gear. 
However, fishermen using offshore gear are encouraged to use the 
inshore standards.

Anchored Gillnet Fisheries

    Except for gear set in the exempted areas mentioned above, all sink 
gillnet gear and other anchored gillnet gear must be set in such a way 
as to avoid having line floating at the surface at any time. Floating 
line is allowed between two buoys on the same buoy line and between a 
buoy and a high flyer attached to the same buoy line.
    Sink gillnet gear is prohibited from most of the Great South 
Channel critical habitat area from April 1 through June 30, until the 
AA determines that alternative fishing practices or gear modifications 
have been developed that reduce the risk of serious injury or mortality 
to whales to acceptable levels. Sink gillnets may be used year-round in 
the ``sliver area'' and may be used from July 1 to March 31 in the 
Great South Channel critical habitat provided that such gear has at 
least two characteristics from the Gillnet Take Reduction Technology 
list.
    From January 1 to May 15, the Federal portion of the Cape Cod Bay 
critical habitat is closed to sink gillnet gear, except that if NMFS 
determines that the right whales have departed from that area for the 
season, the AA may allow gillnet gear to be set, provided that it meets 
the requirements for gillnet fishing for Stellwagen Bank and Jeffreys 
Ledge. From May 16 to December 31, gillnet gear set in the Federal 
portion of the Cape Cod Bay critical habitat must have at least two 
characteristics from the Gillnet Take Reduction Technology List.
    Gillnet gear in the Stellwagen Bank/Jeffreys Ledge area (as defined 
above for lobster pot gear) must always have at least two 
characteristics from the Gillnet Take Reduction Technology List. 
Fishers should be aware that humpback and/or right whales are present 
in the SB/JL area most months of the year. If the gear modifications 
are not sufficient to reduce serious injury and mortality to right and 
humpback whales to achieve the 6-month PBR goal or the 5-year ZMRG 
goal, additional restrictions or closures of certain portions of the 
SB/JL area may be necessary.
    In all other ``northeast waters'' (defined as Federal and state 
waters east of 72 deg.30' W long.), gillnet gear must be set with at 
least one characteristic from the Gillnet Take Reduction Technology 
List at all times. Mid-Atlantic gillnets (gillnets set west of 
72 deg.30' W long. and north 33 deg.51' N lat.) must have at least one 
characteristic from this list from December 1 to March 31.

Mid-Atlantic Drift Gillnet Fishery

    From December 1 to March 31, all vessels using driftnets in the 
mid-Atlantic gillnet area are required to haul all such gear and stow 
all such gear on the vessel before returning to port. If driftnets are 
set at night they must remain attached to the vessel.

[[Page 39164]]

Southeast U.S. Driftnet Fishery

    The area from 27 deg.51' N lat. (near Sebastian Inlet, FL) to 
32 deg.00' N lat. (near Savannah, GA) extending from the shore outward 
to 80 deg.W long. is closed to driftnet fishing, except for 
strikenetting, each year from November 15 to March 31. Strikenetting is 
permitted under certain conditions set forth in the rule. In addition, 
observer coverage is required for the use of driftnets in the area from 
West Palm Beach (26 deg.46.5' N lat.) to Sebastian Inlet (27 deg.51' N 
lat.) from November 15 through March 31 and for the use of strikenets 
in the area between West Palm Beach, FL and Savannah, GA for the same 
time period. Vessel operators intending to use these gear types in 
these areas must notify NMFS at least 48 hours in advance of departure 
to arrange for observer coverage. In addition, shark drift gillnets 
must be marked, as directed in the implementing regulations for this 
rule, to identify the fishery and region in which the gear is fished.

Other Entanglement Reduction Measures Not Part of This Plan

    Other measures under the Magnuson-Stevens Fishery Conservation and 
Management Act that are expected to decrease the risk of entanglement 
of whales in sink gillnets are either currently in effect or under 
consideration. Reductions in allowable days at sea and seasonal or 
year-round area closures to protect groundfish will also reduce the 
risk of entangling right whales. Additionally, area closures for harbor 
porpoise conservation are in effect for Massachusetts Bay, the Gulf of 
Maine ``mid-coast'' and ``northeast'' areas, and southern New England. 
With the exception of the harbor porpoise closure in southern New 
England, all of these closures coincide with times that right whales 
are also present in the area, further decreasing the likelihood of 
entanglement. Effort reduction measures under Framework Adjustment 20 
to the Northeast Multispecies Fishery Management Plan are expected to 
reduce total sink gillnet effort by 50 to 80 percent. This measure is 
expected to also reduce the risk of large whale entanglement associated 
with this gear.
    New England sink gillnetters that fish ``day trips'' are now 
limited in the number of nets they can set. This limit may further 
reduce the risk of entanglement of right whales in sink gillnet gear.
    Some level of lobster pot gear effort reduction may occur under 
gear conflict management measures such as those recommended by the New 
England Fisheries Management Council (NEFMC) in Southern New England. 
Gear conflict reduction measures are also expected to decrease the 
amount of lost gear, which should reduce the risk that whales would 
become entangled in ``ghost'' gear. Further, the Atlantic States Marine 
Fisheries Commission is currently considering reducing effort in the 
lobster fishery. Any effort reduction measures implemented for the 
lobster fishery are likely to reduce the risk of entanglement of whales 
in that gear.

Changes From the Proposed Rule

    This interim final rule has been substantially modified from the 
rule proposed by NMFS on April 7, 1997. In the proposed rule, NMFS 
specifically solicited comments on many of the issues discussed below. 
Public comments have clarified several issues presented in the proposed 
rule and have substantially shaped this interim final rule. Major 
changes have been made to boundaries of affected areas, gear and 
marking requirements, and contingency measures. Because the changes 
from the proposed rule are so significant, NMFS is issuing these 
regulations as an interim final rule to allow comments on this version 
of the ALWTRP. Except for the gear marking requirements, this rule will 
become effective on November 15, 1997, unless it is superseded by a 
notice in the Federal Register prior to that date. The gear marking 
requirements will become effective on January 1, 1998 or on the date 
that OMB gives approval for this collection of information, whichever 
is later. Note that right whales tend to be in Canadian waters from 
July until November, so the risk of entanglements in U.S. fishing gear 
is relatively low until November 15.

Changes in Boundaries and Area Designations

    The Stellwagen Bank/Jeffreys Ledge restricted area is defined in 
this rule as all Federal waters in the Gulf of Maine south of 
43 deg.15' N lat. line and west of the 70 deg.W long. line. The 
proposed rule contained waters where the frequency of right whale 
sightings was quite low, especially in state waters. The northern 
boundary (43 deg.15' N lat.) was proposed by the TRT and other groups. 
North of this line right whale sightings are also quite low. The 
eastern boundary remains the same as in the proposed rule.
    NMFS has also changed the dividing line between northern and 
southern lobster waters to be 41 deg.30' N lat. This allows all waters 
south of Cape Cod to be managed on the same seasonal basis, which is 
consistent with the usual large whale distribution patterns.
    NMFS includes a new boundary in this interim final rule. This 
divides lobster waters into inshore and offshore components. The 
boundaries of the offshore lobster area are the same as for the areas 
sometimes known as Lobster Area III. Because offshore lobster pot gear 
is generally heavier than inshore gear, many commenters advised that 
the offshore gear have different requirements. In addition, because of 
the heavier gear used offshore, which might be harder for a whale to 
break, there is a specific marking code for offshore lobster pot gear. 
If offshore gear is found to pose a significant risk to whales, 
additional restrictions can be imposed.
    In response to public comments, NMFS has exempted a number of areas 
from regulation that would have been covered by the proposed rule. NMFS 
analyzed the overall distribution data for right, humpback, fin and 
minke whales. It is clear that these species are rarely found within 
the bays, harbors, or behind barrier beaches in the Southeast and Mid-
Atlantic areas. These are areas where right whale sightings are so low 
that NMFS believes regulation of fishing activity will have no 
practical benefit for right whale conservation. Exempted areas include 
all waters landward of the first bridge over any embayment, Long Island 
Sound, Delaware and Chesapeake Bays, some coastal areas in the Gulf of 
Maine and, in the southeast region, waters landward of the demarcation 
line of the International Regulations for Preventing Collisions at Sea, 
also known as the 1972 COLREGS line.

Changes to Proposed Gear Modifications

    In its April 1997 Federal Register notice, NMFS proposed to mandate 
a number of specific modifications to lobster and gillnet gear that 
were intended to reduce the risk of entangling large whales. For 
example, NMFS proposed to require that buoy lines be made entirely or 
mostly of sinking line. It also proposed that buoys be attached with a 
weak link and sought comments on whether the breaking strength of that 
link should be 150 lb, 300 lb, 500 lb or any other breaking strength. 
In addition, NMFS proposed to require a suite of modifications to sink 
gillnets, including requiring weak links between nets on both the lead-
line and the float-line.
    NMFS has subsequently determined that some of these proposed 
modifications would not work under any circumstances. For example, 
field testing, since publication of the proposed rule, has shown that 
the 150-lb breaking strength would be too weak to keep a buoy attached 
to a line under the normal range of working conditions.

[[Page 39165]]

Requiring weak links between both the lead-line and the float-line 
would not have allowed gillnetters to haul their nets without high risk 
of loss. Both proposed modifications, if implemented, would have 
created additional lost gear, thereby perhaps increasing the risks of 
entanglement rather than decreasing them.
    Other proposed modifications have worked in some areas but would 
not work elsewhere where fishing conditions are different. For example, 
sinking ground line or buoy lines can work and are used in some places 
but cannot work where the bottom is rocky.
    Fishing conditions and practices differ widely throughout the range 
of this plan. Therefore a uniform application of gear requirements is 
not likely to be practical. NMFS has therefore decided that one set of 
regulations applying to all areas affected by this plan is not 
appropriate. Instead, in this interim final rule NMFS is establishing a 
``menu'' of gear characteristics that are expected to reduce the risk 
of entanglements, based on the advice of the Gear Advisory Group and 
other public comments. Fishermen are required to comply with some of 
these characteristics but are allowed to select the characteristic or 
characteristics that are most appropriate for their region. This 
requirement contributes to achieving the goals of the plan in two ways. 
First, some fishermen will need to change their gear immediately; 
hence, there will be an immediate risk reduction, although NMFS 
believes that this will be only a small contribution. Second, these 
lists can be modified over time to help achieve the ZMRG. As new 
technology becomes available, it can be added to the list. If items on 
the list do not appear to reduce the risk of entanglements, they can be 
dropped.
    Some of the proposed modifications are still in the development 
stage. For example, NMFS suggested that a weak buoy line, when 
developed, might substantially reduce the risk of entanglements. Other 
concepts for gear development were discussed by the Gear Advisory 
Group. NMFS noted in the proposed rule that further research on gear 
modifications were necessary, and it committed to funding research on 
this topic. NMFS intends to modify the gear ``menus'' when new take 
reduction technology is demonstrated to be operational on the water.

Changes to Gear Marking Proposal

    The proposal to place identifying marks on gear met with generally 
favorable reviews, although a number of requests were made for a 
simpler system. There was general agreement that it would be useful to 
know what type of gear was entangling whales and where that gear was 
set, although several commenters warned that it might be difficult to 
interpret data from marked gear. A chief concern was that the proposed 
system of marking was too complicated and time-consuming.
    In this interim final rule, NMFS implements a simpler, quicker 
method of marking gear. The marking system keeps the general concept of 
identifying anchored gillnet, lobster and driftnet gear, but it 
substantially reduces the number of areas that are to be designated. 
This allows the use of only two color marks instead of three. The NMFS 
marking system incorporates two specific suggestions made in the public 
comment period. First, marking gear with paint is acceptable, provided 
the mark is refreshed when faded. Second, there were suggestions that 
marking the ground lines between lobster pots would be time consuming 
and expensive and the marks would not last long. NMFS has decided to 
defer the requirement to mark groundlines and will seek the advice of 
the TRT on the value of this measure.

Changes to Lobster Restrictions in Cape Cod Bay Critical Habitat

    NMFS proposed a series of gear restrictions for lobster pot gear 
set in the Cape Cod Bay critical habitat during the period when right 
whales are likely to be present (January 1 through May 15). These were 
based on requirements instituted by the State of Massachusetts. Of the 
proposed requirements, two are not implemented in this interim final 
rule. These are: (1) The requirement that all buoy lines be sinking 
line and (2) the requirement that the buoy be attached with a 150-lb 
weak link. The purpose of the sinking buoy line requirement was to 
avoid having a loop of rope floating in the water column when tides 
were slack. (When there is a tidal current, all buoy lines are likely 
to be straight.) However, buoy lines made entirely of sinking line rest 
on the ocean bottom. They will chafe more quickly than buoy lines with 
some floating line at the bottom and are more likely to be caught on 
rocks. This requirement would have led to more lost gear. NMFS believes 
that the increased gear loss creates a larger risk to whales than the 
benefit of avoiding loose line in the water at slack tide conveys. 
Therefore, these regulations allow up to one third of the bottom 
portion of the buoy line to be made of floating line. This is 
consistent with the current requirements of the State of Massachusetts 
for this area.
    The purpose of the 150-lb breaking strength was to minimize the 
chance that a buoy would get caught on a whale. Tests in Cape Cod Bay 
have shown definitively that 150 lbs is too weak to keep buoys on 
during storms. This requirement would also increase ghost gear. For the 
time being, instead of a 150 lb weak link, NMFS will require that all 
buoys in the Cape Cod Bay critical habitat have weak links of a maximum 
strength of up to 1100 lb. This breaking strength is based on the 
advice of the Gear Advisory Group, which believed that a weak link with 
a breaking strength of 1100 lb will allow gear to be effectively 
deployed under all normal inshore conditions, including some areas 
where currents and other oceanic conditions are more difficult that in 
Cape Cod Bay. Right whales can exert a pull stronger than 1100 lb, 
although the gear attached to the weak link would have to weigh more 
than 1100 lb, or be anchored or snag on the bottom for a weak link of 
that breaking strength to actually break. If ongoing research shows 
that weaker breaking strengths can be used in the Cape Cod Bay critical 
habitat without an increase in lost gear, this requirement will be 
revised.

Changes to Contingency Closures

    NMFS proposed that if four or more right whales are present in an 
area for two or more consecutive weeks, that area would be closed to 
lobster and gillnet gear until the right whales had left the area. NMFS 
does not intend to implement this regulation at this time, although it 
will seek the advice of the TRT on whether this would be a useful 
measure. There are two reasons for not including this in the interim 
final rule. First, fishermen said that if forced to move gear, they 
would tend to set it just on the periphery of the closed area. This 
would create a denser area of gear around the right whales, increasing 
the risk that the whales would encounter gear on leaving the area. 
Second, NMFS has not identified a process for closing an area that can 
be put in place quickly enough to take into account the movements of 
the animals. If NMFS were to decide to close an area 2 weeks after four 
or more right whales were seen, it would take at least a week to 
publish a Federal Register document after which it could take a week or 
more for fishermen to move their gear. Thus, it would be difficult to 
close an area on account of unusual right whale movements in a timely 
way before the whales moved out of an area. There would be a high 
likelihood of closing an area after the departure of the whales. NMFS 
would still have authority to take

[[Page 39166]]

emergency measures, including area closures, under the MMPA and 
Endangered Species Act if it is deemed necessary for the protection of 
the whales.
    NMFS initially proposed authorizing a suite of specific gear 
requirements which, if used, would allow a person to fish in critical 
habitat. NMFS further proposed that if a right whale were entangled in 
a critical habitat by such authorized gear, NMFS would close that area. 
Because this interim final rule does not authorize any specific gear, 
this measure is not included in the regulations. However, if a right 
whale is entangled in any gear in any critical habitat during the high 
right whale use periods, NMFS will close that critical habitat to that 
gear.

Comments and Responses

    Over 13,000 comments (including form letters, postcards and 
signatures on petitions) were received on the proposed rule. Comments 
came from state and Federal agencies, Congressional offices, State 
legislature representatives, towns, conservation groups, industry 
associations, businesses, fishermen and other private individuals. Oral 
testimony was received at twelve public hearings held from Maine 
through Virginia.

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

    Comment 1: Numerous letters were received from members of 
conservation groups urging NMFS to implement the Large Whale Take 
Reduction Plan as proposed. Most of those letters advocated involving 
the fishing industry in developing solutions to the entanglement 
problem. In addition, several comments were received expressing support 
for the flexibility in the proposed rule which would allow NMFS to 
respond quickly to the need for increased protection for large whales, 
or to relax certain restrictions, and to recognize improvements in gear 
technology.
    Response: NMFS acknowledges this support of its mandates under the 
Marine Mammal Protection Act and will continue to work with both the 
fishing industry and other stakeholders to carry out its 
responsibilities. The ALWTRP contains measures to mitigate future 
interactions with large whales through disentanglement efforts, early 
warning monitoring systems, gear research, and outreach efforts that 
are designed to implement the best available fishing practices. NMFS 
believes these efforts will accomplish the ALWTRP goal while setting in 
place the infrastructure to identify and mitigate the causes for 
entanglements and actively searching for better gear answers to the 
issue. The ALWTRP contains adequate contingencies to protect the 
severely endangered species involved while allowing the affected 
fisheries to seek to improve their entanglement performance.

2. General Opposition to the Proposed Plan

    Comment 2: Many letters and much testimony at public hearings were 
received which did not provide comment on any specific measures 
contained in the proposed rule but expressed opposition to the plan 
itself or to the approach taken by NMFS. One conservation group stated 
that the proposed measures for protecting endangered whales are 
inadequate to either prevent the extinction of Northern Right Whales or 
adequately protect other whale species.
    Response: NMFS acknowledges the interest of the public in this 
issue and has considered the public's concerns in developing this 
interim final rule. The task of preventing the extinction of right 
whales and protecting other whales is not solely the responsibility of 
this plan, although the NMFS has conducted an ESA Section 7 
consultation on this matter that concludes that the ALWTRP is not 
likely to jeopardize the continued existence of any endangered or 
threatened species, including the right whale. Other measures are in 
place, or under development, under the Endangered Species Act and the 
MMPA to provide protection to those species and as noted in Response to 
Comment #1 above, are explained in the interim final rule and the 
Environmental Assessment (EA). NMFS believes this plan initiates the 
development of solutions to the large whale entanglement problem to the 
full extent possible given the current knowledge of whale biology and 
fishing gear technology.

3. Need for Action and Scientific Basis for the Determination of Need 
for Take Reduction Measures

    Comment 3: Several comments were received questioning the need to 
reduce takes of humpback, finback, and minke whales, especially the 
need to reduce takes of these species within the first 6 months of the 
plan.
    Response: The ALWTRP presents a strategy to address this issue, and 
has identified two major goals. The first goal is to reduce serious 
injuries and mortalities of right whales in fishing gear to below the 
PBR level by January 1998. The second goal is to reduce by April 30, 
2001, entanglement-related serious injuries and mortalities of right 
whales, humpback whales, fin whales and minke whales to insignificant 
levels approaching a zero mortality and serious injury rate, taking 
into account the economics of the fisheries, the availability of 
existing technology and existing State and regional fishery management 
plans.
    Comment 4: An analysis of offshore lobster fishing effort will 
demonstrate that the risk to whales from the offshore lobster fishery 
is minimal.
    Response: NMFS agrees that the quantity of gear in the offshore 
fishery is much less than that in the inshore fishery. However, NMFS 
believes that the risk imposed by this fishery is real and that risk 
reductions must be achieved. The fishery operates in areas of whale 
migration and possible concentration, and entanglements of humpback and 
right whales have recently been documented in this gear type. In 
addition, it is likely that injuries sustained during entanglement in 
this gear type are more serious because the gear is heavier. Since 
whales are known to become entangled in the groundlines of lobster pot 
trawls, the larger, heavier offshore trawls may pose a greater risk of 
injury or death.
    Comment 5: A gillnet industry association questions the reasoning 
why the U.S. sink gillnet fishery is required: (1) to be considered for 
regulatory action under this proposed rule, and (2) to be considered 
for excessively restrictive action with regards to gear modification or 
closures when there is lacking empirical evidence and science for this 
gear type to be involved in incidental estimated serious injury and 
mortality exceeding the PBR level.
    Response: Although takes of right whales in U.S. sink gillnet gear 
were not recorded during the 1991-1995 period chosen for analysis in 
developing this plan, the data clearly indicate that takes of humpback 
whales and minke whales have been recorded in sink gillnet gear during 
that period, and all four whale species have been recorded entangled in 
the gear type. The fishery in the U.S. also overlaps distribution of 
all four whale species and the potential for takes continue to exist.
    Comment 6: There needs to be more accountability for the proposals 
in the plan. While it states that the risk of entanglement must be 
reduced by 67 percent, the document has been unable, by its own 
admission, to offer any indication of the amount of risk reduction 
which would occur from the imposition of any one of these proposals.
    Response: Because it is not known where or when entanglements 
occur, it

[[Page 39167]]

is not possible to quantify risk reductions at this time. Even a two-
thirds reduction in effort by all affected fisheries may not be 
sufficient to achieve a two-thirds reduction in entanglements of right 
whales if the areas where entanglements occur are not affected. On the 
other hand, such huge effort reductions may be much more than 
necessary. The measures being implemented are believed to have a 
realistic potential of achieving the necessary reductions in 
entanglements causing serious injury or mortality. Determining whether 
the goals of this plan are achieved can only be made after the fact.
    Comment 7: Many comments were received that stated that ship 
traffic, not entanglements, is the real problem for the right whales. 
One commenter noted that the information available in the Stock 
Assessment Report suggests that interactions with fishing gear are just 
as responsible for right whale deaths as ship strikes. However, other 
available sources of information summarizing data over longer periods, 
including reports prepared by NMFS, suggest that collisions with ships 
are a greater cause of whale mortalities. Does the information reflect 
an increase in the incidence of fishing-related mortalities or is there 
simply some statistical anomaly, due to, for example, the small sample 
size.
    Response: The difference in the two sets of numbers is the 
inclusion of serious injuries. NMFS is required to assess and reduce 
the number of serious injuries as well as mortalities. Ship collisions 
are rarely observed as injuries while injuries from fishery 
interactions are commonly observed. Available data suggest that the 
level of serious injuries and mortalities due to entanglement is 
significant relative to the level due to ship strikes. The 1996 Stock 
Assessment Report estimates that from 1991 to 1996 there were 1.1 cases 
of serious injury and mortality to right whales from gear entanglements 
and 1.4 such cases of ship strikes per year.
    Comment 8: One scientist disagreed that the TRT was presented with 
the best available data on large whale distribution and abundance 
patterns in the Atlantic.
    Response: NMFS agrees that it is preferable to have distribution 
and abundance plots that are corrected for sighting effort. However, 
because such plots were not available at the time of the TRT 
deliberations, NMFS maintains that the TRT was presented with sighting 
plots that represented the best available data.
    Comment 9: One commenter expressed the opinion that NMFS had not 
met at least one requirement of the Marine Mammal Protection Act 
because the stock assessment reports do not describe the rate of 
serious injury and mortality in units of fishing effort. The commenter 
presented calculations relative to the amount of gear in the water and 
stated that the rate of serious injury and mortality to right whales in 
the lobster fishery is approaching a zero mortality and serious injury 
rate.
    Response: The MMPA does not require entanglement rates only be 
expressed relative to fishing effort. This is only one measure. It is 
not possible to express entanglement rates relative to a unit of 
fishing effort for the lobster fishery because catch-per-unit-effort is 
unknown. This calculation is only possible when a systematic sampling 
program is available. This is not the case for most large whale 
entanglement records. Therefore, NMFS uses the annual rate of 
entanglement based on the known events reported from opportunistic 
sources. Because the entanglement rate cannot be extrapolated to a 
total serious injury and mortality estimate, the known annual rate is 
considered to be a minimum. Furthermore, it is the responsibility of 
NMFS to assess rates of interaction relative to the PBR of each marine 
mammal stock, not to the amount of gear in the water.
    Comment 10: NMFS is only picking on fishermen because they are less 
able to defend themselves than shipping and military interests and 
trying to make the fishing industry the scapegoat for historical 
mismanagement of the right whale population or to transfer the fishery 
to large corporations or to destroy the Maine economy so that fishery-
dependent communities are forced to close down and move to big cities.
    Response: NMFS disagrees. The reason for this action is that 
section 118 of the MMPA specifically requires NMFS to produce a plan to 
reduce serious injuries and mortalities of marine mammals due to 
commercial fishing operations. In other actions, NMFS is carrying out 
other aspects of its responsibilities under the MMPA. For example, we 
have taken action with respect to civilian and military ship activities 
to reduce risks to whales.
    Comment 11: The proposed plan does not adequately define or discuss 
the PBRs. It is important that the term be defined and the methods of 
how it is calculated discussed. Like other scientific parameters, there 
needs to be confidence intervals for this metric and a formula given 
for calculating the mean and confidence intervals.
    Response: The PBR levels for the affected species are given above 
(see Current Entanglement Rates and Future Targets). The MMPA defines 
PBR as the product of the following: (A) The minimum population 
estimate of the stock; (B) one half the maximum theoretical or 
estimated net productivity rate of the stock at a small population 
size; and (C) a recovery factor of between 0.1 and 1.0. The MMPA does 
not specify a confidence interval for the PBR level.
    Comment 12: It is unclear why NMFS has chosen to use the minimum 
value of 1.2 for the number of right whales taken per year. This number 
biases viewpoints, calculations and the resultant management plans 
against the whales. In the case of right whales, it is expected that 
about one-half to two-thirds of the whales disappear each year without 
being sighted. It is likely that some portion of these whale injuries 
are caused by fishing activities and have simply gone unreported and 
unnoticed. Therefore, takes caused by entanglements could be much 
higher than the assumed 1.2. The known gaps in available entanglement 
data should be accounted for in making a realistic estimate of takes 
caused by entanglements.
    Response: NMFS agrees that entanglements could be greater than the 
current estimate. However, NMFS cannot extrapolate data such as 
entanglement reports, and thus recognizes them as minimum estimates of 
interactions, serious injuries, or mortalities. The ALWTRP calls for 
enhanced disentanglement efforts, early warning monitoring systems, and 
outreach efforts to be implemented that will provide more accurate and 
consistent reporting of future such events.
    Comment 13: One commenter questioned the differences in 
entanglement rates for right and humpback whales in comparing 
information presented to the take reduction team and in the proposed 
rule with that in the current draft 1996 stock assessment report.
    Response: There were a number of inconsistencies between the 
documents. This has been rectified by deriving all stock assessment 
information from a single source, the MMPA-mandated Stock Assessment 
Report. The 1996 Report is now being finalized and is available on 
request (see ADDRESSES).
    Comment 14: One commenter noted that the proposed rule does not 
appear to include serious injury and mortality data from entanglements 
in fishing gear for right whales in Canadian waters and stated that 
these data must be included

[[Page 39168]]

and assessed against the overall PBR level.
    Response: NMFS interprets the MMPA as requiring a reduction in 
serious injury and mortality of marine mammals through interactions 
with U.S. fisheries. Canadian takes are monitored by NMFS in order to 
understand the status of the population and the overall effects of 
human-induced serious injury and mortality, but the PBR goal of this 
plan does not need to be reduced by such takes.
    Comment 15: One whale research group noted that incidental takes of 
humpback whales in commercial fisheries are also currently near the PBR 
level, despite a paucity of sightings of juvenile whales in the 
northeast in the past four years. Previous data indicate that juvenile 
whales are those most likely to be seen entangled. If juvenile sighting 
levels in the northeast overall return to the levels seen from 1980-
1990, it is possible the PBR level could be exceeded fairly rapidly. 
NMFS should plan for what they will do in the event this takes place.
    Response: NMFS appreciates the information on juvenile humpback 
whales. If the entanglement rate of humpback whales is not reduced 
during the course of the implementation of this plan, further 
adjustments will be necessary. The available entanglement information 
will be reviewed by the TRT during periodic evaluations.
    Comment 16: One commenter stated that the description of the fin 
whale stock in the proposed rule lacks sufficient detail and 
recommended that NMFS elaborate on this stock assessment and include 
the PBR estimate for this stock in the final rule.
    Response: NMFS has included the PBR estimate for fin whales from 
the 1996 Stock Assessment Report. Further information is available in 
the Stock Assessment Report.
    Comment 17: Minke whales, because of their smaller size and lower 
energetic requirements, are more likely to be found outside major 
identified whale concentration and gear modification areas, including 
inshore waters. As such, their protection from the right whale measures 
might be lower than that for other species.
    Response: NMFS agrees. However, this plan institutes some measures 
in all regulated waters, including waters outside right whale critical 
habitats and other areas which have high concentrations of large 
whales. Minke whales do occur in areas where more stringent measures 
are being required. Therefore, some protection is expected for minke 
whales through this plan. Note that the entanglement rate of minke 
whales appears to be substantially below the PBR level for this stock. 
No reduction is necessary in the rate of serious injury or mortality of 
minke whales to meet the 6-month PBR goal, although some bycatch 
reduction may be necessary to achieve the ZMRG.
    Comment 18: There are three hundred right whales now known to 
exist; the sustainable goal is 6,000; at which time the incidence of 
right whale/gear conflicts can reasonably be projected to be twenty 
times the current rate, which will seriously impact on fixed gear 
fishermen, especially trap and pot fisherman who will be subject to 
regulation by the ALWTRP.
    Response: NMFS agrees that the rate of interaction could increase 
when a marine mammal population increases. However, if a stock 
increases substantially, the PBR level would also increase. Therefore, 
the rate of interaction relative to the stock's PBR would not 
necessarily increase.
    Comment 19: The proposed conservation measures are useless and not 
founded on scientific fact or analysis. This was proven through the 
entanglement of a northern right whale just prior to May 20, 1997, when 
the proposed management measures were already in effect as implemented 
emergency regulations. This whale was identified as one seen earlier on 
February 24, 1997, in Cape Cod Bay and not entangled. The irrefutable 
conclusion was that this whale became entangled after February 24, 
1997, in fishing gear deployed in the northeast under NMFS emergency 
regulations. These regulations did not work because they were too 
little done, too late.
    Response: The emergency regulations were only effective in right 
whale critical habitat in Cape Cod Bay during that period. NMFS is not 
aware of any documentation either that the right whale entanglement 
occurred in Cape Cod Bay or that the gear involved was from any 
fisheries deploying gear in Cape Cod Bay. Furthermore, the time elapsed 
between the two sightings (approximately 51 days) indicates that the 
whale could have traveled some distance in the interim. Information 
from satellite tracking indicates that right whales are capable of 
traveling from Maine to New Jersey and back in 3 weeks.

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

    Comment 20: On August 31, 1995, a NMFS 101(a)(5)(E) determination 
stating no allowable takes of fin, humpback, northern right, and sperm 
whale species requires that the ALWTRP achieve that goal. NMFS denial 
at that time to issue any small take permits or exemptions to allow 
entanglements of these species in fishing gear only underscores the 
necessity for the ALWTRP to work and prove itself. The ALWTRP must 
significantly and demonstrably prove that it will reduce entanglements 
to levels required under Section 118 of the MMPA. The August 31, 1995, 
finding would then require actions be taken to eliminate this risk to 
the whale. By proposing untested gear modifications and only limited 
seasonal closures, the ALWTRP limited restrictions fail to do so by 
allowing for, and in fact, assuming entanglements will continue to 
occur. Therefore, reliance on gear modifications and limited closures 
creates a plan that does not afford the recovery of northern right 
whales or other marine mammals, and creates a violation of NMFS's own 
August 31, 1995 finding, Section 118 of the MMPA, and the Section 9 
Take Prohibitions of the ESA.
    Response: The purpose of the ALWTRP is to ``assist in the recovery 
or prevent the depletion of each strategic stock.'' It is intended to 
reduce the likelihood of a take; it should not be viewed as authorizing 
any take of endangered species under the ESA. NMFS believes the 
closures, surveillance and disentanglement efforts, gear modifications, 
outreach and other aspects of this plan have a realistic potential of 
achieving the goals of the MMPA in the required time frame. If the 
goals are not achieved, NMFS will seek the advice of the TRT on next 
steps.
    Comment 21: Why is NMFS waiting until now to deal with this issue 
if the MMPA has been a law since 1972? NMFS is only responding to an 
artificial deadline.
    Response: The take reduction plan process was initiated with 
passage of the 1994 amendments to the MMPA. The final regulations 
implementing Section 118 of the MMPA were not published until August 
30, 1995. The Atlantic Large Whale Take Reduction Team was established 
in August 1996. Once the team was established, a rigid timetable 
prescribed in the MMPA was set in motion.
    Comment 22: Several comments were received questioning the 
placement of the lobster pot fishery in Category I on the MMPA List of 
Fisheries. Some commenters believed that NMFS had only put the fishery 
in Category I because of an entanglement of a right whale in Canadian 
gear.
    Response: NMFS has several records of entanglements that have 
occurred in the lobster fishery and as such, believes that the fishery 
is appropriately

[[Page 39169]]

categorized. No records of entanglements of whales in Canadian gear 
were used to classify the fishery.
    Comment 23: Several comments were received in objection to flaws in 
the take reduction team process which included: (1) Insufficient time 
frame to deal with the broad scope of unfamiliar issues, (2) 
insufficient data on the whale entanglement problem, (3) lack of 
systematic and comprehensive facilitation at meetings, (4) inconsistent 
guidance from NMFS regarding the scope of the charge to the team and 
the nature of acceptable take reduction recommendations, and (5) 
arbitrary decision by NMFS to end the take reduction team deliberations 
prematurely.
    Response: NMFS acknowledges this critique of the take reduction 
team process, which was received largely from TRT members, and hopes 
that the experiences of the TRT members and the agency during the 
promulgation of the proposed and interim final rules will help to 
increase the productivity of the TRT process in the future.
    Comment 24: The basis of the decision used to support this 
rulemaking activity should be formally brought before the TRT. The 
Administrative Procedures Act is specific in its requirements on 
rulemaking, and the record of information necessary to avoid 
``arbitrary and/or capricious'' decision making. NMFS did not follow 
the recommendations of the team it assembled to study the problem of 
whale take reduction. In addition, NMFS admits that it will not be able 
to determine if its proposed regulations will achieve the goal of 
reducing incidental whale deaths. Accordingly, since the proposed rules 
are not based upon available scientific data, and because NMFS does not 
have the ability to modify its decision based upon observable data 
collected after it implements the proposed rules, the only rational 
conclusion is that NMFS is acting in an arbitrary and capricious manner 
in advancing the proposed rules. How can rules go forward with 
reference to gear restrictions if NMFS has not conducted any detailed 
assessment of gear technology?
    Response: Section 118 of the MMPA sets forth strict guidelines for 
implementing a take reduction plan. Despite the fact that a consensus 
plan was not provided by the TRT, NMFS is mandated to implement a plan 
based on its own findings and available data within the timetable 
prescribed by the MMPA. NMFS has considered all of the deliberations of 
the TRT in deciding what should be included in the interim final rule. 
In addition, NMFS convened the Large Whale Gear Advisory Group in early 
June and received additional input from the fishing industry. Precisely 
because gear modification requirements as contained in the proposed 
rule had not been fully tested in all areas under all operating 
conditions, NMFS has decided to reduce or eliminate many of those 
requirements unless or until there is more evidence that the gear 
modification in question has a reasonable chance of reducing the impact 
of entanglement without unduly compromising the ability of a fishing 
vessel to operate its gear. The measures in the interim final rule are 
based on the best scientific data available and are reasonably 
calculated to result in a reduction in fishing gear interactions and to 
meet MMPA objectives. Members of the public will have the opportunity 
to further comment on this rule because it is being published as an 
interim final rule. NMFS has the opportunity to modify this plan based 
on observable data on entanglements, which it will collect during the 
implementation of this rule. NMFS will reconvene the TRT to review the 
effectiveness of this rule, based on those data, and to provide 
additional recommendations.
    Comment 25: There needs to be a clear definition of ``serious 
injury.'' Even the best designed breakaway gear could result in line or 
net fragments remaining on the animals, or within a whale's mouth. 
These fragments might eventually cause injury. Without a clear 
definition of ``serious injury,'' the industry remains vulnerable to 
closures even if fishermen develop and accept radical gear 
modifications.
    Response: NMFS agrees. On April 1-2, 1997, NMFS held a workshop to 
receive advice from experts on developing a system to assess serious 
injury. NMFS intends to publish draft guidelines for determining 
serious injury in the fall of 1997. For additional information, see 
description above.
    Comment 26: Several comments were received urging NMFS to move 
quickly toward adopting a final quantitative definition for ZMRG.
    Response: NMFS issued a proposed definition for the ZMRG, which has 
subsequently been reviewed by a panel of population biologists. Based 
on their recommendations and public comment, NMFS is currently 
preparing the final rule outlining the quantitative definition and 
expects to publish that rule in August 1997.
    Comment 27: Since any adopted ALWTRP, along with its implementing 
regulations, amounts to a de facto permit to take whales through 
entanglement, NMFS should not allow any said regulations and plan to be 
implemented until a sufficient monitoring program has been adopted and 
funding guaranteed that can detect when any entanglement of a northern 
right, and other endangered whales, has occurred. This conservation 
group also requests that NMFS detail the ALWTRP's monitoring program 
and certify its effectiveness and commitment for its funding, before 
adopting the ALWTRP and its implementing regulations.
    Response: NMFS is mandated to implement a ALWTRP within the time 
period prescribed in the 1994 amendments of the MMPA. The ALWTRP and 
its implementing regulations are not intended to permit the taking of 
whales entangled in fishing gear. The ALWTRP and implementing 
regulations establish measures designed to reduce the likelihood of 
entanglements and mitigate the damage caused by entanglements to below 
PBR levels. All applicable take restrictions remain in effect. Further, 
monitoring will be on-going activity and, if necessary, the ALWTRP can 
be modified to address any appropriate circumstances.
    Comment 28: The MMPA requires the Secretary of Commerce to consider 
the effect of regulations on ``the economic and technological 
feasibility of implementation.'' (16 U.S.C. 1373(b)(5)). In presenting 
the proposed rules, the Secretary has failed to comply with the express 
requirements of the MMPA. Economic considerations of a fishery are to 
be taken into account under the MMPA, including not only development of 
a long-term goal under section 118(f)(2), but also the short-term PBR 
standard, as defined and applied in the Act. In the PBR standard, the 
Act implicitly acknowledges that any attempt to achieve a ``true zero'' 
figure is too costly given the economic considerations relevant to the 
cost of avoiding the ``improbable situation'' of incidental mortality 
or serious injury caused by commercial fisheries. In the development of 
a PBR value, there is a clear recognition that the expenditure of 
unlimited resources towards the avoidance of a single marine mammal 
take is unacceptable.
    Response: Section 118 (16 U.S.C. 1387) of the MMPA, not Section 103 
(16 U.S.C. 1373), governs the promulgation of the interim final rule. 
Nevertheless, NMFS is required to consider the economic and 
technological feasibility of implementation. This was accomplished in 
the Environmental Assessment and the Regulatory Flexibility Analysis. 
The final rule has

[[Page 39170]]

been substantially changed in part due to public comments on the 
economic and technological feasibility of the proposed rule. NMFS 
disagrees that the calculation of the PBR level requires that economic 
considerations be taken into account. NMFS acknowledges that the MMPA 
requires that in implementing measures to achieve incidental take 
levels approaching zero mortality and serious injury rates, it must 
take into account the economics of the fishery, among other 
considerations. As discussed above, such economic considerations have 
been considered in developing this rule.
    Comment 29: The proposed rules will cause an increase in the number 
of vertical lines used by lobstermen in Maine. An increase in the 
number of vertical lines would lead to an increase in the incidents of 
Atlantic whales becoming entangled in lobster gear, thus resulting in a 
greater number of incidental deaths of Atlantic whales. Accordingly, 
since NMFS's proposed rules would increase the number of Atlantic whale 
deaths, the implementation of the regulations would violate the ESA by 
effectively taking an endangered species. Even if NMFS were to argue 
taking of Atlantic whales, there can be no question that the 
regulations would add significantly to the endangerment of the right 
whale population.
    Response: The interim final rule is substantially changed from the 
proposed rule. The interim final rule has eliminated requirements that 
arguably could have resulted in an increase of vertical lines used by 
lobster fishers in Maine.
    Comment 30: What is the definition of U.S. vessels? Do MMPA 
regulations apply to vessels that do not have Federal permits or to 
vessels in state waters? Does Section 118 apply only to commercial 
fishing vessels? Commercial fisheries licensed and regulated by state 
governments in areas under their state jurisdiction are not 
``commercial fisheries'' as used in Section 118. It is unlawful for 
NMFS to consider the taking of marine mammals by state fisheries to be 
allowed any of the take exemptions provide under Section 118. Only 
federally licensed and regulated marine fisheries are regulated by 
Section 118 of the MMPA. The NMFS here attempts to regulate state 
marine fisheries out of a political desire to protect the state 
fisheries from the enforcement of the prohibition of the Endangered 
Species Act and the MMPA for their entanglement of whales in their 
fisheries operations.
    Response: The MMPA grants legal authority to NMFS to regulate any 
vessel allowed to engage in commercial fishing in all U.S. waters, 
including both state and Federal waters. This interim final rule, 
promulgated under authority of the MMPA, applies to any person or 
vessel in the fisheries and areas encompassed by the rule, regardless 
of whether the person or vessel has a Federal permit, and regardless of 
whether the person fishes exclusively in state waters, unless otherwise 
specified in the rule. The MMPA's legal authority applies without 
regard to whether a fishery occurs in state waters or Federal waters. 
Section 118 of the MMPA does not make a distinction between Federal or 
state fisheries but applies to any fishery that interacts with marine 
mammal stocks.

5. Comments on Geographic Scope of Regulations

    Comment 31: One conservation group requested that NMFS require in 
the ALWTRP, and implementing regulations, the elimination of all 
vertical lines in lobster gear and complete banning of gill nets, both 
fixed and drift, in the northeast.
    Response: NMFS disagrees that measures of this severity are 
necessary to meet either the initial PBR goal, or the long term goal.
    Comment 32: Numerous comments were received objecting to what 
appeared to be ``one-size-fits-all'' regulations for huge areas and 
requesting that measures be fine-tuned for different geographical 
areas.
    Response: In acknowledging the comment, NMFS has devised a system 
of choosing 1 or 2 options from separate gear modification lists for 
lobster pot gear (with specialized options for inshore and offshore 
gear) and gillnet gear that allows fishers the flexibility to choose 
gear modifications appropriate for their region.
    Comment 33: Comments were received regarding both the need to 
implement restrictions equally from the southernmost points of the 
migratory pathway up through the northernmost points up in Canada, as 
well as questioning whether protective measures were necessary in 
various areas along the U.S. East Coast because of an apparent lack of 
right whale sightings in those areas.
    Response: Because fishing operations are tremendously diverse and 
variable, it is not possible to require similar modifications in every 
area. Furthermore, the measures in this plan must address entanglement 
of humpback, finback, and minke whales as well as right whales. 
However, NMFS does not believe it necessary to require gear 
modifications where there is no clear overlap between whales and gear. 
This interim final rule considers those comments and establishes a plan 
that covers the full range of the species (Florida to Maine) while 
exempting certain near-shore, shallow areas where whales do not overlap 
with gear. Therefore, the plan adequately addresses all areas which 
represent significant overlap between the fisheries and whales 
considered in the large whale take reduction plan.
    Comment 34: One conservation group supported the need for gear 
modification of lobster gear as described for use in the Stellwagen 
Bank/Jeffreys Ledge area, but felt that the area was inappropriately 
defined. Requirement for these types of gear modifications extending to 
the beach and northward to a point north of where the bulk of right 
whales sightings have occurred seems unduly restrictive. Another 
commenter supported the definition as proposed.
    Response: Based on examination of whale sighting information, the 
definition of the Stellwagen Bank/Jeffreys Ledge (SB/JL) area has been 
modified in this interim final rule. The northern boundary has been 
changed from 43 deg.30'N lat. to 43 deg.15'N lat. to reflect whale 
concentrations, and the area only relates to Federal waters to reflect 
the lack of near-shore whale sightings. It should be noted that the 
waters no longer included in the SB/JL area are not exempted, but are 
part of the other northeast waters area which require certain gear 
modifications.
    Comment 35: NMFS intends to include all state and Federal waters. 
It would be better to allow States to address this issue as needed in 
their waters. The Commonwealth of Massachusetts, which has a critical 
habitat within its waters, already has a plan on line for that area. 
The State needs to be able to make adjustments and improvements in a 
timely fashion, which it can do as needed. This would be difficult if 
Federal rules are in the way for the same area.
    Response: NMFS is aware of the difficulties of having both state 
and Federal regulations in the same area. The Federal Government has 
the responsibility of implementing the MMPA. However, NMFS intends to 
work actively with the Commonwealth of Massachusetts, with which NMFS 
has a cooperative agreement under the Endangered Species Act, to ensure 
that both sets of regulations are consistent and responsive. The 
requirements in this interim final rule mirror the current regulations 
of the Commonwealth.
    Comment 36: Many comments were received stating that the 41 deg.N 
lat. line boundary designation used to separate

[[Page 39171]]

the lobster fishery appeared to be arbitrary and created problems in 
southern New England, particularly western Long Island Sound.
    Response: NMFS has moved the line north to 41 deg.30'N lat. and has 
exempted certain near-shore waters, including Long Island Sound.
    Comment 37: As a portion of the migratory route of the northern 
right whale is in the waters of Canada, Greenpeace urges the NMFS to 
commence bilateral talks with Canada to encourage the implementation of 
similar fishing restrictions by Canada in order to protect the northern 
right whale throughout its migratory range.
    Response: NMFS agrees with the importance of working with Canada to 
reduce marine mammal bycatch problems in both countries. Bilateral 
discussions with Canada are ongoing. The Northeast Implementation Team 
has DFO as a member to consider recovery action for both right and 
humpback whales. Canada will also remain an advisor to the Large Whale 
TRT and thus be part of that process. The Regional Administrator meets 
regularly with Canada and other counter parts on issues of regional 
importance of which marine mammal issues are always a part. NMFS will 
forward this plan to DFO officials and urge Canada to take similar 
steps.

6. Comments on the Process

    Comment 38: One commenter urged that the emphasis be shifted to 
those measures that are measurable and more likely to succeed without 
jeopardizing the industry. Above all, the commenter urged NMFS to 
immediately invest more resources for surveillance and monitoring to 
increase the likelihood of detecting the rare entanglement. 
Surveillance and monitoring will provide critically important data 
regarding right whale biology and movements, and information needed for 
stock assessments.
    Response: NMFS intends to continue and expand the surveillance in 
the New England Early Warning System (EWS) instituted in January 1997. 
NMFS will have access to additional information on scarification 
analysis and population biology once results of studies that are 
already underway or completed are available. We will be working with 
the States and USCG on ways to increase disentanglement efforts, 
monitoring systems, and outreach and education programs designed to 
determine where whales and fishing gear overlap on a timely basis.
    Comment 39: The State of Maine recommended that the Take Reduction 
Plan should be implemented as an interim plan for one year.
    Response: The MMPA directs NMFS to publish a 5-year plan; 
therefore, a 1-year interim plan would not meet the standards in the 
MMPA. However, the plan is being published as an interim final rule 
allowing a further public comment period, and calls for the phasing in 
of many of the gear requirements. Furthermore, the plan will be 
reviewed periodically in consultation with the TRT and adjusted as 
necessary.
    Comment 40: Maine proposes that a Coordinator position for a Whale 
Response team be established. This position will be contracted with the 
Center for Coastal Studies, Provincetown, MA, and funded in full by the 
NMFS. This position will have three primary areas of responsibility: 
Outreach and Education, Surveillance/Sighting reporting, and First 
Response and Disentanglement.
    Response: Although NMFS cannot guarantee that it can contribute 
funds for such a position, it will be working with the States and USCG 
on ways to increase disentanglement efforts, monitoring systems, gear 
research and outreach and education programs and will be coordinating 
these efforts with the States.
    Comment 41: Several commenters requested that NMFS hold additional 
public hearings, with an increased level of advertisement, because 
adequate notice was not given for the hearings that were held. One 
commenter also noted that the first round of public hearings were held 
prior to the availability of the economic analysis data and 
recommendations of the Large Whale Gear Advisory Group. Another 
commenter requested that hearings be held after gear specifications are 
finalized.
    Response: NMFS held 12 public hearings and extended the comment 
period to obtain more public input. In addition, NMFS convened the Gear 
Advisory Group specifically to gather more advice on the difficult 
issue of gear modifications. Therefore, NMFS believes that adequate 
notice of the public hearings was given as evidenced by the large 
turnout at many of the public hearings, and that every opportunity was 
given for public comment and input to be provided to this 
administrative process even for those who did not participate in the 
first round of public hearings. NMFS is taking public comment on this 
interim final rule prior to its effectiveness. NMFS will attempt to 
ensure maximum public participation in all future deliberations 
concerning the Take Reduction Plan and its implementing regulations.
    Comment 42: The proposed rule has caused fishermen to become 
unwilling to assist in efforts to save whales. The proposal will 
alienate fishermen. NMFS needs the cooperation of fishermen for a take 
reduction plan to work.
    Response: NMFS agrees that cooperation of the fishing industry is 
essential. NMFS has substantially modified the proposed rule in 
response to the public's concerns to stimulate continued industry 
cooperation and participation in solving the problem.
    Comment 43: NMFS rulemaking authority under MMPA should not provide 
a basis to relieve NMFS of concurrent federal responsibilities as 
mandated under provisions of the National Environmental Policy Act of 
1969 (NEPA-42 U.S.C.A. 4321 to 4370D) and the Administrative Procedures 
Act (APA--5 U.S.C.A. Chapter 5).
    Response: NMFS has fully complied with NEPA and the APA.
    Comment 44: One commenter requested that before any implementation 
of the final rule, NMFS provide documentation of compliance with the 
provisions of the Regulatory Flexibility Act and the Small Business 
Growth and Administrative Accountability Act.
    Response: NMFS has complied with all applicable law. (See the 
Classification section of this rule).

7. Gear Marking

    Comment 45: The proposal to place identifying marks on gear met 
with generally favorable reviews. There was general agreement that it 
would be useful to know what type of gear was entangling whales and 
where that gear was set, although several commenters warned that it 
might be difficult to interpret data from marked gear. A chief concern 
was that the proposed system of marking was too complicated, too costly 
and time consuming. Also, many comments were received stating that 
marking ground lines were too costly, time consuming and the marks 
would not last long because of chafing.
    Response: NMFS agrees that there is great value in marking gear, 
for it will eventually help document where and in what fishery 
entanglement are occurring. However, NMFS also recognizes that there 
are many unanswered questions concerning the accuracy of the data that 
can be obtained and the technology involved with marking gear. As a 
result of the these concerns, the interim final rule calls for a 
simpler, quicker method of marking gear that will keep the general

[[Page 39172]]

concept of identifying anchored gillnet, lobster and driftnet gear, but 
it substantially reduces the number of areas that are to be designated. 
Also, NMFS has decided to defer implementation of the requirement to 
mark groundlines and will seek the advice of the TRT and the Gear 
Advisory Group.
    Comment 46: Several commenters stated that Canadian gear should be 
marked.
    Response: NMFS does not have authority to require marking on 
Canadian gear. Information on the U.S. marking system will be provided 
to Canadian managers for their information in considering a system. 
Canada already requires some marking of gear, such as lobster trap 
tags.
    Comment 47: In order to determine if whales are endangered by Maine 
fishermen, all lines should be marked by a color-coded piece of twine 
no less than 6'' long attached within 6' of the buoy or marker. The 
state lobster fishery is divided into seven in-shore zones and seven 
off-shore zones. Each fisherman should mark their gear with the color 
code assigned to the area in which they are fishing.
    Response: NMFS acknowledges this suggestion and will discuss this 
with the TRT, Gear Advisory Group, and the state of Maine.

8. 30-Day Inspection Requirement

    Comment 48: Numerous comments were received questioning the 
feasibility of requiring all fishing vessels to bring their gear to 
shore for inspection every 30 days and the capability of NMFS to 
enforce such a measure.
    Response: The proposed regulation was widely misunderstood. The 
intention was to eliminate the practice of ``wet storage'' of gear by 
requiring that all vessels tend all their gear at least once every 30 
days. The provision has been clarified in this rule.

9. Comments on Closures and Effort Reduction Measures

    Comment 49: One conservation group supported NMFS emphasis on gear 
modification as a major means of reducing the severity and number of 
entanglement events on the following grounds: The only way to be sure 
that a whale will not become entangled in fishing gear is to remove 
interacting gear from the water. However, because of the low 
entanglement rate, uncertainties as to where entanglements actually 
occur, and the whereabouts of most of the right whale population during 
most of the year, a mitigation strategy based on fishing closures seems 
insupportable. The exception to this would be designated critical 
habitat areas during high use times (as proposed by NMFS). However, 
measures such as the closure of critical habitats are, by themselves, 
insufficient.
    Response: NMFS agrees with this approach particularly since 
measures in the Large Whale Take Reduction Plan are intended to reduce 
takes of humpback, finback, and minke whales as well as right whales.
    Comment 50: The Marine Mammal Commission recommended that: (a) the 
proposal to close Cape Cod Bay to gillnet gear during the area's peak 
right whale season (1 January through 15 May) be expanded to include 
lobster gear, which is now used only at extremely low levels at that 
time of year; and (b) the proposal to close all of the Great South 
Channel critical habitat to lobster gear and most, but not all of that 
area to gillnet gear during the area's peak right whale season (1 April 
through 30 June) be changed to include the ``sliver area'' within the 
critical habitat that NMFS proposed to exclude from the closure for 
purposes of gillnet fishing. Eliminating entangling gear at times and 
in areas that right whales are known to be present will not only reduce 
entanglement risks for this species, but also will assure that fishing 
effort at those critical times does not increase in the future.
    Response: NMFS believes that the current plan will reduce serious 
injuries and mortalities of large whales to below the PBR levels, and 
therefore does not believe this step is necessary at this time. 
However, NMFS will consider it in future deliberations and will urge 
the TRT to discuss these options as steps to continue progress toward 
ZMRG.
    Comment 51: The most effective management measure for the Studds-
Stellwagen Bank Sanctuary would be closure during the months of January 
through April or May, with a contingency for longer closures when the 
whales remain in the area, as they did in 1986. However, it is also 
recognized that the Sanctuary, because of its considerable observer 
effort, history of entanglements, and proximity to trained 
disentanglement teams could be a very appropriate site for testing 
fishing gear modified to reduce the threat of entanglement, provided 
that appropriate safeguards are put in place to insure that if an 
animal becomes entangled in modified gear, disentanglement teams could 
be deployed to free the animal from that gear. Therefore, perhaps 
somewhat paradoxically, closure may not be in the best interest of the 
long term recovery of either right whales or humpbacks.
    Response: NMFS appreciates the understanding of the complexity of 
this issue.
    Comment 52: One commenter felt that the proposed time-area closures 
did not address the actual risk to the whales, because they ignored the 
fact that whales are often found in the critical habitats during other 
times when the level of fishing effort in the area is substantially 
greater. The commenter recommended a year-round ban on all fishing in 
critical habitat or in marine sanctuaries. Another commenter suggested 
that the Jeffreys Ledge area be closed to fixed gear to reduce 
entanglement risk.
    Response: NMFS agrees that in the Gulf of Maine there is a year-
round risk to large whales from fishing gear and that critical habitat 
and the Stellwagen Bank/Jeffreys Ledge area are of higher risk than 
other waters and should be treated more carefully. However, NMFS does 
not believe that year-round closures are required. During the summer 
months in the Cape Cod Bay critical habitat and in the Stellwagen Bank/
Jeffreys Ledge area, the opportunities are particularly good for 
sighting entangled whales and for getting a team out to disentangle a 
whale, so risk is not necessarily a direct relationship to the number 
of lines and whales in an area. NMFS will forward the commenter's 
suggestion to the TRT for further consideration.
    Comment 53: Several commenters indicated that they did not support 
area closures until more information is available about the 
effectiveness of gear marking and the impact of using modified gear.
    Response: NMFS maintains that closures in high risk areas for right 
whales are still necessary at this time and that the need to protect 
the species cannot wait for more information from gear marking and 
modified gear use.
    Comment 54: One commenter concurred with the proposed area of 
closure of Sebastian Inlet, FL, to Savannah, GA, from shore out to 
80 deg. W long., but recommended the area north of Sebastian Inlet 
remain closed from November 1 through April 15.
    Response: An Early Warning System is in place to reduce ship 
strikes of right whales off the coast of Florida and Georgia. Daily 
surveillance flights are used to locate whales in the area, and any 
whale sightings are transmitted to warn vessels transiting the area to 
keep a close look-out for the whales. These daily reconnaissance 
flights are currently conducted by The New England Aquarium from 
December 1 through March 31 and have provided detailed information on 
whale

[[Page 39173]]

abundance and distribution in the areas and times covered. The Georgia 
Department of Natural Resources surveys coastal waters off Georgia for 
right whales prior to the December start of the EWS in the SEUS. Very 
few whales have been recorded in the area before late November or after 
mid-March. Therefore, NMFS proposes to close this area from November 15 
through March 31.
    Comment 55: A net ban put into place in Florida has improved the 
health of the ecosystem in marine waters there. This would also help 
the whales if such a ban were put into place where the whales exist.
    Response: NMFS has proposed to restrict the use of certain types of 
nets in areas considered high use areas by right whales off the coast 
of Florida and Georgia. It is expected that these restrictions will 
reduce the potential for entanglement of large whales in fishing gear 
in these areas.
    Comment 56: Several commenters stated that NMFS did not recognize 
the legitimacy and timeliness of fishing effort control measures being 
considered in other plans as effective, logical whale entanglement risk 
reduction measures. Suggestions were provided for expansion of the 
vessel buy-back program to include Category I fisheries, moratoria on 
new entrants into the fisheries of concern, trap limits, gillnet caps, 
and buoy caps.
    Response: NMFS acknowledges that other efforts to control gillnet 
and lobster fishing effort may be beneficial in reducing entanglements 
(see section on ``other entanglement reduction measures not part of 
this plan''). However, the MMPA requires that NMFS produce a plan to 
reduce serious injuries and mortalities to below the PBR level within 6 
months. NMFS cannot plan on the completion of any of these other effort 
reduction measures within that time frame, although they may be useful 
in achieving the long-term goal of the plan.
    Comment 57: The State of Maine was concerned that NMFS, while 
acknowledging that current and anticipated fishery management effort 
control measures will significantly reduce likelihood of an 
entanglement of whales, would proceed to propose the rule subject to 
this proceeding without first ascertaining the degree to which 
entanglement is reduced by the ancillary management measures above.
    Response: The MMPA set a strict timetable for producing a draft 
plan, which was developed based on the information available in the 
1996 Stock Assessment report. That report shows that current measures 
have not yet reduced bycatch to below the PBR level. While the measures 
referred to by the State of Maine are expected to help achieve the 
ZMRG, they cannot be counted on to achieve the 6-month goal. There are 
currently no effort reduction measures in the lobster fishery for both 
state and Federal waters though they have been under discussion for 
several years and strongly advocated by NMFS.
    Comment 58: The offshore lobster industry recommended that 
Groundfish Management Closure Area I be similarly closed to fishing 
with lobster gear that poses a threat of entanglement to whales from 
April through June as a means to avoid the development of a lobster 
fishery in close proximity to the Great South Channel Critical Habitat.
    Response: Except for the portion of Groundfish Management Closure 
Area I that lies within the Great South Channel critical habitat, there 
is little evidence that an additional closure is needed at this time, 
since right whales are rarely seen in the area proposed to be closed. 
However, NMFS will ask the TRT to discuss this option.
    Comment 59: A gillnet industry association recommended that NMFS 
close the critical habitat area east of the LORAN line with a northwest 
boundary at 13710/43950 and a southwest boundary of 13710/43650 to all 
gillnetting and lobster gear from March 1--May 31.
    Response: NMFS appreciates this suggestion. As with the closure 
proposed by the lobster industry of Groundfish Management Area I, this 
measure does not seem necessary at this time, but could be useful in 
the future if adjustments to the ALWTRP are determined to be necessary 
to meet ZMRG.
    Comment 60: Discussion in the proposed plan indicates that the 
rationale for excluding the sliver area from the proposed Great South 
Channel spring gillnet closure is that only three percent of the 
historical right whale sightings in the critical habitat have occurred 
in the sliver area. It also notes that, unlike lobster traps that would 
be excluded from the sliver area in spring because of their potential 
to entangle whales, gillnets must be tended regularly. The statement 
implies that this would significantly reduce entanglement risks 
compared to lobster traps, presumably because of a greater likelihood 
of detecting and avoiding whales. Finally, the discussion notes that 
the area is economically important to the sink gillnet fishery. Data 
and analyses in support of these points are not provided and, in some 
cases, the conclusion seems questionable.
    Response: Data on where whales are entangled and what factors 
reduce the risk of entangling whales are scant. It is not possible to 
demonstrate conclusively in advance that the NMFS risk assessment is 
correct. NMFS will monitor this situation closely, including having 
regular surveys in this area throughout the high right whale use time. 
NMFS will present the survey data and entanglement data to the TRT for 
its review.
    Comment 61: The Marine Mammal Commission noted that the sliver area 
excluded from the closure has a higher proportion of right whale 
sightings than other parts of the right whale critical habitat that the 
NMFS proposes to include in the closure.
    Response: NMFS agrees that there are other areas that could be 
excluded from the closure on strictly biological grounds. However, the 
gillnet industry has only expressed interest in the sliver area. NMFS 
will continue to monitor the sliver and other areas to determine if 
other measures are necessary.

10. Dynamic Management

    Comment 62: The Commonwealth of Massachusetts supports 
surveillance-based management. For example on May 7, 1997, the 
Massachusetts Division of Marine Fisheries suspended gear restrictions 
within the Cape Cod Bay critical habitat nine days prior to the May 16, 
1997, scheduled date, because whales were well-documented to have 
departed the area. NMFS is urged to establish a process where changes 
to the regulations or actions taken under a surveillance-based 
management plan could be enacted without inordinate delays.
    Response: NMFS has the flexibility to lift the closure or other 
restrictions if warranted based on surveillance in the New England 
Early Warning system. However, consideration must be given to effects 
on the other three whale species protected by this plan. The 
regulations implemented by NMFS this Spring were intended for right 
whale protection. The Great South Channel is part of right whale 
critical habitat; however, it is also a high-use area for other whale 
species protected by this plan.
    Comment 63: Because unpredictable combinations of oceanographic 
conditions can cause whales to congregate unpredictably in areas of 
previously low use, support was given in principle for the provision of 
the NMFS regulations calling for identification of, and local action in 
these areas of short term, localized concentrations of whales. The risk 
evaluation and the decision on an

[[Page 39174]]

appropriate course of action should involve fishermen who work in the 
region, and scientists familiar with whales in the region, rather than 
allowing this decision to the discretion of Federal officials remote 
from and unfamiliar with the region. This will help to assure that the 
measures taken are most likely to be effective, and by including the 
fishing community in the decision process, the compliance will be high.
    Response: NMFS agrees that it is desirable to involve local 
expertise in designing flexible management for small areas that must be 
implemented quickly and efficiently, and it will work with the States 
to develop contingency measures for unusual right whale distributions. 
The final decision as to measures to be taken must reside with the 
agency by law.
    Comment 64: Many comments were received suggesting that NMFS use 
radio beacons, sonar, or other acoustic deterrent devices or fences to 
exclude whales from areas of the coast where they might become 
entangled in gear.
    Response: Large scale exclusion of whales from their habitat is not 
an option for reducing incidental takes in fishing gear. NMFS must find 
solutions to the entanglement problem that involve a minimum of 
disruption to the whales. Acoustic deterrent devices on a smaller scale 
(i.e., at the level of each piece of gear) have been proposed as an 
option for research and development, as such a system has proven 
effective to reduce entanglements of harbor porpoise in sink gillnets 
in certain times/areas.

11. Other Right Whale Critical Habitat Measures

    Comment 65: Several comments were received in support of NMFS 
proposed gear modification measures for lobster gear in the Cape Cod 
Bay right whale critical habitat during the January 1-May 15 period and 
proposed closure measure for the Great South Channel during the April 
1-June 30 period.
    Response: NMFS has retained most of the critical habitat measures. 
However, some of the gear modification requirements have not been 
included due to insufficient information on operational feasibility.
    Comment 66: Given the need to reduce entanglement risks for 
humpback whales as well as right whales, the Marine Mammal Commission 
recommends that the NMFS require the same gear restrictions proposed 
for Cape Cod Bay between 16 May and 31 December (i.e., Type 2 lobster 
gear) for at least the Stellwagen Bank portion of the area. Much of 
Stellwagen Bank has a sandy bottom where sinking line should pose a 
minimal risk of chafing or snagging on rocks. Requiring Type 2 gear for 
the area would avoid different sets of restrictions for people who fish 
in both Cape Cod Bay and adjacent Stellwagen Bank areas, provide right 
whales with protection comparable to that in Cape Cod Bay, and offer an 
added measure of protection for at least one key humpback whale habitat 
during a peak humpback whale occurrence period.
    Response: NMFS agrees that sinking groundline has the potential to 
decrease entanglement risk in certain areas and has included this 
modification as an option in the lobster gear technology list.
    Comment 67: One commenter stated support for the special provision 
for strikenets in the proposed rule, but recommended that observers be 
required to be on board vessels operating with strikenets in the SEUS 
restricted area during the closed period.
    Response: A correction to the regulatory text regarding the special 
provisions for strikenets is warranted. Section (e)(3)(iii) Special 
provision for strikenets now reads: ``Fishing with strikenet gear is 
exempt from the restriction under paragraph (e)(3)(i) of this section 
if:
    (A) No nets are set at night or when visibility is less than 500 
yards (457.2 m);
    (B) Each set is made under the observation of a spotter plane;
    (C) No net is set within 3 nautical miles of a right, humpback or 
fin whale; and
    (D) If a right, humpback or fin whale moves within 3 nautical miles 
of the set gear, the gear is removed immediately from the water.'' This 
correction allows for an exemption from the closed areas, provided the 
special provisions are met, but will not allow an exemption for 
strikenets from the observer requirement in Section (e)(3)(ii).
    Comment 68: One commenter supported excluding the shark driftnet 
fishery in designated right whale habitat areas during high use times 
of the year and recommended that NMFS extend the critical habitat areas 
based on current aerial data.
    Response: NMFS is currently funding additional surveys to assess 
the necessity of extending currently designated right whale critical 
habitat. Current data suggest that the critical habitat expansion to 
the south and east may be warranted. However, insufficient data 
preclude a decision at this time.
    Comment 69: The preamble to the rule states that the restriction of 
the shark fishery in the southeast extends to the east to the 80 deg. W 
long. line. However, in the implementing regulations, the restrictions 
appear confined to critical habitat. This is not appropriate and is 
less restrictive than was agreed to by the Atlantic Large Whale Take 
Reduction Team.
    Response: NMFS agrees. The regulatory text has been amended to 
reflect that the restricted area extends out to the 80 deg.00' W long. 
line.

12. Contingency Measures

General Comments
    Comment 70: The State of Maine questioned several aspects of the 
proposed rule concerning operational aspects of the fisheries subject 
to the plan. The State was not confident that the NMFS would exercise 
sound judgement in assessing an entanglement, selecting an appropriate 
and reasonable response to an entanglement, or in determining what 
constitutes an appropriately sized area to close in the event of an 
atypical assemblage of right whales. Therefore, the State insisted that 
this measure be modified to ensure that contingency measures, closures 
or other restrictions be made jointly by the NMFS and the affected 
state or states, that advice and guidance from affected fishermen, 
marine mammalogists familiar with the species and its behavior, and 
gear technologists.
    Response: As noted above, NMFS will work with the States to develop 
contingency measures for quicker responses to entanglements and 
unexpected entanglement risks. However, the MMPA does not contain 
provisions to allow NMFS to confer decision-making authority to States 
or affected fishermen.
Unusual Right Whale Distribution Contingency
    Comment 71: Several commenters recommended that NMFS establish a 
protocol to evaluate and verify sighting information to be used as the 
basis of a contingency closure. There were concerns about the size of a 
closure that could come into effect in the case of unusual right whale 
distributions. (The boundaries of such a closure were not specified in 
the proposed plan.) Where or when appropriate, modifications to gear or 
fishing practices should be considered as an alternative to closures. 
Additionally, NMFS should develop a clear procedure for reopening 
areas.
    Response: NMFS agrees that a clear protocol for implementing and 
lifting contingency closures would be necessary in order to expedite 
their use.

[[Page 39175]]

The proposed contingency closure based on unusual right whale 
distributions is not included in the final plan, however. Further, the 
interim final rule contains measures to reopen any closed area. As 
better gear technology is available it will be placed on the gear 
technology list.
    Comment 72: Offshore lobster gear is hauled about every 8 to 12 
days; by the time a fisherman is notified that his gear must be moved 
due to the presence of right whales, (and he can get to the gear to do 
so), it is likely that the whales will have moved on. This may have the 
undesired result of putting gear back in the whales' path in an attempt 
to avoid them. Also, the most likely place to move gear will be around 
the perimeter of the closure, creating a more condensed gear area 
through which the whales will have to pass in order to leave.
    Response: NMFS agrees that the timely closing of an area would have 
been difficult. This is one of the reasons why this measure was not 
implemented.
Gear Modification Failure Contingency
    Comment 73: One commenter supported the proposal to either close 
areas during restricted periods or impose additional gear modifications 
or alternative fishing practices in the event of an entanglement, 
serious injury, or mortality of a right whale in an interaction with 
modified gear in critical habitat and recommended that NMFS convene or 
consult with the TRT after each such event.
    Response: NMFS has retained this category of contingency in this 
rule. It will inform the TRT of any such event.
    Comment 74: The Commonwealth of Massachusetts suggested that the 
threat of closures based on entanglements in modified gear would 
discourage fishermen from reporting sightings of entangled whales. It 
also cautioned that injuries and mortalities are so rare that reacting 
to the next one by instituting a closure will not provide the 
conservation benefits that are implied.
    Response: NMFS agrees that the possibility of a fishery being 
closed is a strong disincentive to report entanglements. It has not 
retained that contingency in this plan, except in critical habitats. In 
critical habitat surveillance efforts and research cruises may 
compensate for any decrease in reporting by fishermen.
    Comment 75: That the NMFS reserved for the Federal Government the 
sole judgment as to whether an entanglement was ``attributable to 
modified gear'' or the failure thereof to perform as expected was 
patently offensive to the State of Maine.
    Response: NMFS is aware that it is not sole expert on entanglements 
or on any aspect of whale conservation. As it has in the past, it will 
seek advice of the TRT (on which the State of Maine had two 
representatives) and of the Gear Advisory Group (on which the State of 
Maine had one representative) on matters relating to gear and 
entanglements of large whales. As stated before, final authority for 
implementing the MMPA rests with NMFS and cannot be delegated.

13. Gear Modifications

General Comments
    The vast majority of the comments submitted addressed the proposed 
gear modifications and specifically stated that the proposed 
regulations would have resulted in gear that was too weak to withstand 
the normal operational needs of the fishing industry. Additional 
concerns were raised regarding increased potential for entanglement 
that could result from changes in fishing practices in response to the 
proposed modifications or from increased ghost gear. As proposed, NMFS 
created a Large Whale Gear Advisory Group (LWGAG) that met June 4-5, 
1997, in Peabody, Massachusetts. Twenty members of the fishing 
industry, four representatives of states, three researchers, and nine 
NMFS employees attended all or part of the meeting. NMFS provided the 
LWGAG with summaries of written and oral public comments, which had 
been received to date regarding gear modifications. After an update on 
gear studies and a brief discussion of whale entanglement, three teams 
were formed to brainstorm ways to reduce the possibility of 
entanglement. The participants divided themselves into teams 
representing inshore lobstermen, gillnetters and offshore lobstermen. 
The inshore lobster team had representatives from Rhode Island to 
downeast Maine. Gillnetters included fishermen from New Jersey to 
Maine, while offshore lobstermen from southern New England, the mid-
shelf, and east to the Hague Line were represented. Each group produced 
a list of suggested options, broken down into immediate and future 
options, and an extensive list of research and development needs. These 
recommendations were considered in the drafting of this final rule.
    Numerous comments were received on specific aspects of the gear 
modifications proposed in the proposed regulations. The following 
comments are representative of the comments received and address the 
concerns raised by the commenters. NMFS acknowledges the practical 
limitations of the proposed gear modifications raised by the public and 
believes that this interim final rule recognizes different hydrological 
conditions that affect fishing practices and gear and provides measures 
more compatible with commercial fishing practices, while still 
achieving mandates under the MMPA. NMFS intends to continue this 
cooperative effort by involving the Large Whale Gear Advisory Group and 
Large Whale Take Reduction Team in future development of gear 
modifications and research.
    Comment 76: The NMFS LWGAG Inshore Lobster subgroup recommended the 
following options for immediate implementation in the inshore (i.e., 
inside Lobster Management Area 3) lobster fishery: (1) Prohibition on 
buoy lines greater than \7/16\'', (2) prohibition on line floating on 
the surface, (3) requirement for breakaways (at buoy; all within 1100 
lb; breakaways can consist of swivels, 6 thread line (min. 1 fathom), 
plastic weak-links, staples, or hog rings; (4) recommend remove ban on 
poly/floating line from proposed rule; (5) light colored buoy lines; 
(6) require gear tending at least every 30 days (to ensure no wet 
storage); (7) credit given for use of fewer vertical lines; and (8) 
fewer knots.
    Response: Many of the suggestions that were provided to NMFS at the 
Gear Advisory meeting have been included in the interim final rule. 
Other suggestions that were given need further evaluations and in 
subsequent meetings of the LWGAG and the TRT. These will be discussed 
and if determined to be effective measure to reduce entanglements they 
will be added to options list for use by fishermen.
    Comment 77: The NMFS LWGAG Offshore Lobster subgroup recommended 
the following measures to be required for immediate implementation in 
the offshore (i.e., outside Lobster Management Area 3) lobster fishery: 
(1) Vessels fishing south of 41 deg. N lat. are exempt from these 
regulations except during the months of December through March; (2) the 
Great South Channel Critical habitat area will be closed to lobster 
gear during the months of April through June; (3) there shall be no 
line floating at the surface of the water; (4) there shall be a weak 
link at the top of the buoy line. The maximum strength of the weak link 
shall be no more than that of \1/2\'' polypropylene rope or \3/4\ the 
diameter of the buoy line; (5) there shall be no knots in the buoy line 
except above the weak link (to tie on surface gear); and (6) there 
shall be no more than 2 buoy lines per trawl.

[[Page 39176]]

    Response: See response to comment 76.
    Comment 78: The LWGAG offshore lobster subgroup also recommended 
the following options as suggested, not mandatory, fishing practices: 
(1) Buoy lines should be no more than 2.5 times the water depth; (2) 
traps should be no more than 25 fathoms apart on the groundlines; (3) 
fishers should make their trawls as long as legally possible to reduce 
the number of buoy lines within their strings of gear; and (4) gear 
should be tended no less than once a month.
    Response: See response to comment 76.
    Comment 79: The NMFS Large Whale Gear Advisory Group Gillnet 
subgroup recommended the following options for immediate implementation 
in the gillnet fishery: (1) Anchor the gear with the holding power of a 
22 lb danforth style anchor, or a 50 lb dead weight at each end, or rig 
net with greater than 100 lb lead line; (2) the buoy line will not be 
rigged to float on the surface (excluding the tide ball & high flyer); 
(3) top buoy line breakaway system not to exceed 1100 lb, resulting in 
a bitter end not exceeding 1.5 inches in diameter;
    Response: See response to comment 76.
    Comment 80: Several commenters suggested that the current fishing 
practices might be sufficient to keep entanglement rates at acceptable 
levels and questioned whether proposed gear modification requirements 
might increase entanglement rates. A particular concern raised was the 
potential for increased amounts of ghost gear in which whales could 
become entangled.
    Response: NMFS disagrees that current practices are sufficient to 
reduce risk to whales. Although there is no evidence to suggest that 
entanglements, particularly those which result in serious injury or 
mortality, involve ghost gear, NMFS agrees that the increase in ghost 
gear is a concern not only for whales but also for other marine life. 
NMFS agrees that the requirements of the proposed rule may have 
resulted in substantial amounts of lost gear. It believes that the 
potential for increased ghost gear which could result from this interim 
final rule is minimal.
    Comment 81: Devices should not have to be proven to reduce whale 
entanglement prior to widespread use, but they should be able to meet 
reasonable expectations for substantially reducing risk (e.g., a 
decrease in breaking strength that resulted in the gear retaining 75 
percent of its original characteristics would not constitute a 
substantial reduction in the risk of entanglement).
    Response: NMFS appreciates this suggestion of a standard for risk 
reduction.
    Comment 82: The minimal gear modifications proposed for the Studds-
Stellwagen Bank National Marine Sanctuary area may not be sufficient to 
insure that further entanglements are avoided. While a rare event, two 
(possibly three) northern right whale entanglements, and a considerable 
number of entangled humpbacks, have been observed within the Sanctuary 
since 1985. While one cannot be sure that these entanglements actually 
occurred in the Sanctuary, neither can one say with any certainty that 
they occurred elsewhere.
    Response: NMFS had proposed extensive modifications for this area 
that are calculated to provide a realistic potential of reducing 
serious entanglement to levels required by the MMPA. NMFS agrees that 
the Sanctuary is a high risk area, however, and that it is important to 
provide adequate protection for all four whale species in the area, 
particularly right and humpback whales.
    Comment 83: NMFS should work toward long-term gear solutions that 
might include developing new gear types or shifting fishermen over to 
existing gear that would be less risky to marine mammals. For example, 
if bottom longlining proves to be an acceptable alternative for the 
harvest of certain groundfish species (groundfish: cod, haddock, 
pollock) and spiny dogfish, then gillnetters should be encouraged to 
shift to this gear type in areas of high risk to large whales. The 
three-month closure in the Great South Channel and the 4.5 month 
closure in Cape Cod Bay could provide opportunities for fishermen to 
shift to other gear types, and this should be encouraged.
    Response: NMFS appreciates this suggestion. It will continue to 
examine alternative measures and ask the TRT to consider ways to 
encourage alternate fishing practices that may pose less risk of marine 
mammal entanglements.
    Comment 84: Since the disbanding of the Take Reduction Team, 
concerns have been raised by right whale scientists that a top 
breakaway in the buoy line may be less appropriate than a bottom 
breakaway, but clearly both should be tested operationally. It may be 
that a phased approach to implementation would accommodate the need for 
field testing before requiring broad use of breakaways throughout the 
EEZ.
    Response: NMFS agrees that a bottom breakaway could be useful in 
mitigating certain types of entanglements. The function of top 
breakaways versus bottom breakaways are different and would address 
different aspects of entanglement. The operational constraints on 
bottom breakaways are much greater than breakaways at the buoy, thus 
technological solutions would require extensive testing. Some progress 
has been made in developing a bottom breakaway (see next comment), but 
NMFS does not have any information at this time on feasibility of this 
device for implementation in fixed gear fisheries.
    Comment 85: A conservation group suggested that failing to require 
a breakaway link at the bottom of buoy lines ensures that potential 
solutions will not be developed. This group suggests that NMFS require 
the development and use of such a link as soon as it becomes 
operationally feasible. Gear without such a device would still 
represent a significant entanglement risk to whales, and such gear 
should not be allowed into sensitive areas such as critical habitat. A 
device that could be used as a bottom breakaway is being developed.
    Response: NMFS acknowledges this information on progress toward 
developing a bottom weak link and will consider such recommendations 
for future evaluation. NMFS will ask the TRT and LWGAG to evaluate 
innovative technological solutions that are presented for consideration 
to add to the Take Reduction Technology Lists.
    Comment 86: One conservation group suggested that a weak link with 
a breaking strength of 400 lb might work in Cape Cod Bay critical 
habitat, based on operational testing. Alternatively, to make the use 
of weaker link devices more acceptable to industry, NMFS might explore 
the development of a stronger accessory device that could be placed on 
gear when severe storms are predicted for an area.
    Response: NMFS acknowledges this timely information. However, 
concern remains that, although 400 lb may be promising for Cape Cod 
Bay, this breaking strength may not be sufficient for all areas where 
gear is deployed. Therefore, NMFS has used a 1100 lb breaking strength 
as proposed by the Large Whale Gear Advisory Group until further 
testing can be conducted to determine the lowest breaking strength that 
can be used in particular areas. It will seek a discussion in the TRT 
and LWGAG about the feasibility of developing an alternative device 
that could be placed on gear when storms are predicted, although it 
would be

[[Page 39177]]

difficult to regulate the use of such a device.
    Comment 87: Splicing is not likely to make a difference in saving 
whales.
    Response: Splicing is no longer required in the interim final rule, 
although NMFS encourages its use, on the grounds that a splice is less 
likely than a knot to snag on a whale.
    Comment 88: Floating line is preferred in many fishing areas to 
reduce chafing caused by contact with pots or with the bottom and the 
actual degree to which line floats between pots is unknown. 
Nevertheless, to reduce the potential for a high profile in the 
groundline and therefore reduce the risk of entanglement, this 
conservation group supports requiring sinking groundline in areas 
identified as high-use areas for large whales.
    Response: NMFS agrees that sinking groundline has the potential to 
decrease entanglement risk in certain areas and has maintained this 
modification as an option in the lobster gear technology list.
    Comment 89: One commenter suggested that a workable alternative to 
requiring sinking groundline would be to require vessels to set lobster 
pot trawls in the direction of ``fair tide'', or down tide with the 
current pushing the vessel, to keep ground lines taut and low between 
traps. This was also discussed by the LWGAG.
    Response: NMFS acknowledges this suggestion of an alternative 
fishing practice but further research is necessary to determine if this 
practice is consistent in different types of hydrological conditions.

14. Comments on Strategies for Implementing Gear Modifications

    Comment 90: One commenter stated that the measures in the NMFS 
proposed plan may be appropriate as emergency measures for critical 
habitat and some high risk habitats, but that it is premature to 
require major, untested gear modifications over large areas outside of 
the highest risk areas. In particular, these modifications could cause 
unforeseen problems for whales, such as the increase of ghost gear. 
Other commenters recommended that any modifications implemented should 
be phased in and should be operationally sound, enforceable, and 
affordable.
    Response: NMFS agrees with these concerns given the current lack of 
technological solutions and has substantially revised the proposed rule 
in response to these concerns.
    Comment 91: One conservation group suggested that expensive 
modifications should have an economic phase-in period. This group 
suggested a system of phasing in gear modifications beginning in the 
right whale critical habitat areas in 1997 and ending with the wider 
areas in 2002, proceeding in annual increments of 1/3 of the gear each 
vessel has in each area. Modifications required in each of the 
succeeding years would be consistent with technology current at that 
time. The commenter suggested that existing and proposed gillnet and 
trap tag programs would facilitate enforcement of this strategy.
    Response: The changes in this final rule reduce the costs 
significantly. Flexibility has been built into the interim final rule 
to adopt a phased-in approach for gear modification as they are 
developed. As new gear is determined to be operational and effective in 
reducing entanglements it will be added to the gear technology list 
described in this rule for use by fishermen.
    Comment 92: One conservation group recommended that gear 
modifications not be allowed in closed or restricted areas until they 
could be demonstrated to reduce the risk of serious injury or mortality 
to whales to levels approaching zero.
    Response: It is not clear how any management measure could be 
demonstrated to reduce the risks of entanglements to levels approaching 
zero. It will be the combinations of all the parts of the plan that 
will reduce the risk of entanglements. In general, hypotheses can be 
disproved but not proved. However, as new technology is developed, NMFS 
will seek advice of the TRT and the LWGAG as to whether it appears a 
feasible for reducing entanglement risk to deploy.
    Comment 93: The NMFS should develop criteria for certifying 
individuals and institutions as qualified to design, evaluate, and 
approve modifications for use consistent with the ALWTRP. The basis for 
approval of any given technique or technology should be that it is 
judged to be equal to or superior to current practice.
    Response: The design of gear modifications could be done by anyone 
with a good idea. No concept should be rejected just because a person 
is not certified. Evaluation will be done by NMFS gear specialists, the 
LWGAG and the TRT and by fishermen involved in testing the gear. NMFS 
cannot delegate authority to individuals or institutions to approve 
gear for use.
    Comment 94: Any examination or review of gear modifications must 
fully address the issue of HOW whales become entangled in fishing gear. 
Pending the availability of scientific research that explains this 
phenomena, no gear modifications can or should be tested in the natural 
environment on endangered or other whales.
    Response: NMFS agrees that knowledge of the mechanics of 
entanglement is important to resolve the entanglement problem. However, 
since so few entanglements have been witnessed, NMFS believes it is 
unreasonable to require this standard for allowing the use of certain 
gear modifications.
    Comment 95: Several commenters requested that NMFS subsidize the 
fishing industry for modifying their gear.
    Response: At this time, NMFS has no authority or funding from 
Congress to subsidize the fishing industry for gear modifications.
    Comment 96: Several members of the fishing industry offered to test 
experimental gear provided by NMFS rather than be asked to experiment 
with gear that they need to make a living.
    Response: The suggestion is appreciated and will be discussed with 
the Gear Advisory Team.

15. Comments on the Social and/or Economic Impact and Associated 
Analyses

    Comment 97: Numerous comments were received expressing the opinion 
that the proposed rule would have a devastating effect not only on the 
fishing industry, but also on the entire coastal community, and that 
the economic impact outweighed the potential benefit to right whales.
    Response: NMFS has responded to these concerns and believes that 
this interim final rule represents a plan that will achieve the goals 
established in the MMPA with an economic impact substantially reduced 
from that which would have resulted from the proposed rule.
    Comment 98: The economic analysis should include the costs of labor 
that it would require to paint and rig the gear.
    Response: The economic analysis did not ignore labor costs. The 
labor costs were acknowledged to be substantial in several instances 
throughout the Environmental Assessment prepared for the proposed rule. 
At the time, however, insufficient information was available to provide 
a quantitative estimate of labor costs. To the extent practicable, NMFS 
included labor costs in the final EA for the ALWTRP.
    Comment 99: Economic analysis is an underestimate.
    Response: The economic analysis was conducted with the best 
scientific and commercial data available at the time, and when data 
were lacking, qualitative assessments were made about the likely costs.

[[Page 39178]]

    Comment 100: The State of Maine prepared an alternative economic 
analysis to challenge implementation of the ALWTRP on grounds of severe 
economic impact to the Maine lobster fishery.
    Response: NMFS agrees in concept with the State of Maine's overall 
conclusion that the proposed regulations would have imposed a 
substantial economic impact on the Maine lobster fishery. NMFS has 
responded to this concern in developing a final rule that provides 
maximum flexibility to affected Maine lobster fishermen in meeting the 
gear modification requirements as a way to significantly reduce the 
economic impact. In the majority of instances, the suite of options in 
the lobster take reduction technology list are consistent with fishing 
practices commonly used by Maine lobstermen and serve to minimize 
compliance costs with the ALWTRP. Consequently, the original economic 
analysis is no longer valid for this interim final rule. Nevertheless, 
NMFS is not, in agreement with several assertions made by the State of 
Maine, nor is it in agreement with several aspects of its economic 
analysis. NMFS will provide a discussion of the Maine analysis upon 
request.

16. Regulation of Other Fisheries Which May Pose an Entanglement Risk 
to Large Whales

    Comment 101: Several comments were received regarding NMFS's 
proposal to regulate several fisheries other than the four proposed to 
be regulated by the ALWTRP based on the fact that those other fisheries 
either have or may entangle large whales. Comments were received 
recommending that NMFS consider revising the classification of these 
fisheries from Category III to Category II and consider imposing gear 
marking requirements on these fisheries. Other comments recommended 
against imposing additional gear requirements or restrictions until 
such time as NMFS has evidence indicating that these fisheries pose an 
entanglement threat to large whales.
    Response: A summary of historical entanglement information for the 
``other fisheries'' was presented in the Draft Take Reduction Team Plan 
submitted by the TRT. Several of the other fisheries listed have 
documented takes of one or more of the four whale species protected by 
this plan. Therefore the potential for take in the future exists. In 
addition, as explained in the proposed rule, the other fisheries for 
which take has not yet been documented may represent a similar threat 
because gear types are similar. For example, all gear types which use 
vertical lines in areas where whales occur may represent an equal 
entanglement threat. The proposed list of fisheries for 1998 is 
currently out for public comment and NMFS solicits comments on the 
reclassification of these ``other fisheries''. Note that section 118 of 
the MMPA gives the AA the authority to classify a fishery based on 
analogy with similar fisheries.

17. Comments on Expansion of Disentanglement Effort

    Comment 102: One commenter cited a case where a whale was seen 
entangled and not disentangled because the entanglement did not appear 
to be life threatening. That whale eventually died, and the cause of 
death was attributed to the entanglement. The commenter contended that 
this case demonstrates that disentanglement efforts could help resolve 
the problem and regulators should put stock in the efforts to reduce 
serious injury and mortality, especially since this may convince 
fishermen to cooperate with government to report right whale sightings.
    Response: NMFS agrees that disentanglement can be an effective 
measure for reducing the chances of serious injury or mortality from 
those entanglements that have already occurred and happen to be seen 
and reported in time to maximize the chances of a successful 
disentanglement. This is a major aspect of the plan. NMFS believes that 
measures are necessary, both to prevent whales from becoming entangled 
in the first place and to minimize the impacts on those whales that 
become entangled and are never disentangled.
    Comment 103: Several comments were received supporting the 
expansion of the disentanglement effort while stating that 
disentanglement does not substitute for the need to modify or restrict 
gear. One conservation group noted the lack of any data to show that 
disentanglement has contributed to the long term survival of any animal 
(particularly right whales) that has been entangled in fishing gear.
    Response: NMFS agrees that measures other than disentanglement must 
be taken. Although no research on long term survival of disentangled 
animals has been conducted, analyses are underway that may provide 
information on this issue. Several years of data are available, since 
organized disentanglement has been conducted in the northeast since 
1984.
    Comment 104: Several comments were received indicating that the 
fishing industry must be involved in the disentanglement network for it 
to have any hope of succeeding. One commenter noted that it is vital to 
get the most possible benefit from ``first responders''. Often they are 
the only ones in the position to act effectively, and are able to 
provide valuable information on the particulars of the entanglement.
    Response: NMFS agrees that the commercial fishing industry is a 
vital component of the disentanglement network. In fact, many whale 
entanglement records received by NMFS have originated from reports by 
commercial fishers. The chances of a successful disentanglement are 
maximized when the individuals monitoring an entangled whale are 
familiar with the needs of the disentanglement team and can stay with 
the whale to feed information to the primary team and assist the 
primary team on scene. NMFS hopes to increase the network of 
individuals trained to provide first response.
    Comment 105: One commenter stated that well-intentioned but 
untrained and uninformed boaters and fishermen might unnecessarily 
injure either themselves or the whales they are attempting to help and 
suggested that fishermen and other interested boaters receive training 
in identifying whales and evaluating entanglements, as well as the 
basic do's and don'ts of disentanglement. Another commenter suggested 
that hotline telephone numbers be established and the numbers given to 
fishermen to expedite help for whale entanglements/problems.
    Response: NMFS agrees that this is a concern. Information on how to 
report an entanglement, including hotline numbers, and on what not to 
do, has been provided to vessel operators in the past. NMFS is working 
with Sea Grant to develop an outreach and education program that will 
provide information to the commercial fishing industry on these and 
other issues. As a result of a meeting at the Maine Fishermen's Forum 
this spring, NMFS, the authorized disentanglement team (led by the 
Center for Coastal Studies) the State of Maine, and the Commonwealth of 
Massachusetts have developed outreach materials which will be 
distributed to the fishing industry and other small vessel operators 
over the coming months.
    Comment 106: One lobster fisherman suggested that NMFS provide a 
$1,000,000 life insurance policy for fishers to release whales and a 
$1,000 reward for successful releases.
    Response: No funds have been appropriated for NMFS for such 
purposes. NMFS cautions all boaters that releasing an entangled whale

[[Page 39179]]

requires expertise about the whale's behavior and is extremely 
dangerous. NMFS is not convinced that it would be in the whales' 
interest or the fishermen's interest to encourage fishermen to conduct 
disentanglements on their own.
    Comment 107: Because there are no whales in Maine waters, 
disentanglement teams are obviously not necessary and are a waste of 
taxpayers' money.
    Response: NMFS disagrees. Entanglements of all four whale species 
protected by this plan have occurred in Maine's near-shore waters. In 
addition, sightings of entangled whales for which original point of 
entanglement is unknown have also occurred in Maine waters and 
satellite tracking studies have documented right whale migratory paths 
through nearshore and offshore waters of Maine and the other New 
England states.

18. Legal Issues Regarding Whale Entanglement and Compliance with the 
Take Reduction Plan Regulations

    Comment 108: Several commenters stated concern about a fisherman's 
legal liability in connection with reporting entanglements of whales in 
his/her gear. Some commenters believed that without immunity from legal 
liability there would be no incentive to report. Other commenters 
believed that immunity from liability would not increase likelihood of 
reporting entanglements. Most commenters on this subject encourage NMFS 
to exercise judicious prosecutorial discretion in deciding whether to 
hold a fisherman liable for entanglements in his gear if he/she reports 
such entanglements.
    Response: NMFS is sensitive to concerns raised in this comment. 
This rule does not provide immunity to fishermen whose gear entangles 
whales and who report the entanglement because NMFS believes that such 
a provision would inappropriately dilute its enforcement 
responsibilities under the MMPA and ESA. Moreover, as one commenter 
suggested, neither the ESA or the MMPA provide explicit authority to 
provide such immunity without issuing incidental-take permits which 
cannot be issued as discussed in a response in an earlier comment. The 
agency intends to exercise prosecutorial discretion on a case by case 
basis for reported entanglements, taking into account factors such as 
the unavoidability of the entanglement, the fisherman's compliance with 
this rule and other applicable law and the cooperativeness of the 
fisherman.

19. Comments on Enforcement of the Plan

    Comment 109: Several commenters stated that the proposed rules 
would be unenforceable or difficult to enforce, at least at sea, 
particularly with respect to gear requirements such as breaking 
strength.
    Response: As with any regulation, the agency recognizes that 
certain measures within the interim final rule may, in limited 
instances, prove difficult to enforce. However, the agency believes 
that overall compliance with these measures will be high, because they 
generally reflect current fishing practices and are drafted with 
sufficient precision to enable effective enforcement in the event of a 
violation.

20. Comments on Education and Outreach to the Fishing Industry

    Comment 110: One commenter suggested that outreach and awareness 
programs detailing species identification and cetacean specific 
problems should be mandatory for all commercial fishermen. Other 
commenters suggested that outreach materials be made available prior to 
January 1, 1998.
    Response: NMFS will consider this recommendation in developing the 
education and outreach program. NMFS staff are currently exploring 
alternatives for conducting education and outreach for all take 
reduction plans on the U.S. Atlantic coast. NMFS agrees that it is 
desirable to conduct education and outreach prior to the implementation 
of the Take Reduction Plan regulations. The outreach program is 
scheduled to begin this fall.

21. Comments on Monitoring of the Plan

    Comment 111: How will NMFS demonstrate, with varying time frames, 
the success of the act in reducing the mortality of whales, especially 
when a frequent occurrence is defined as an event that occurs once 
every 5 years? What scientific evidence is necessary to support these 
measures? What is relevant data, the source of this data, and is it 
peer-reviewed?
    Response: NMFS will publish annually a Stock Assessment Report that 
provides estimates of serious injuries and mortalities of each species 
of large whale for the most recent year for which data are available 
and for the five-year period ending with that year. Estimates of 
serious injuries are compiled from data supplied by fisheries observers 
and by stranding and entanglement reports submitted to NMFS by those 
who observe such events. The Stock Assessment Reports are peer reviewed 
and are submitted for public comment before finalizing them as well.
    Comment 112: NMFS states that ``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 when the plan is 
implemented.'' NMFS's rationale for this statement is ``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.'' This logic is baffling. The 
MMPA establishes two goals: (1) To reduce the serious injury and 
mortality in commercial fishing operations to levels less than the PBR 
level within 6 months of implementation of a take reduction plan; and 
(2) to reduce the serious injury and mortality to levels approaching a 
zero mortality and serious injury rate in 5 years. It makes absolutely 
no sense to monitor serious injury and mortality for 5 years and use 
this data to evaluate the immediate 6-month PBR goal. This commenter 
contends that if there are no serious injuries or mortalities 
incidental to commercial fishing operations during the first six months 
to a year after implementation, then the plan has met its first goal. 
The logic NMFS describes is more appropriate in evaluating the 5-year 
ZMRG goal.
    Response: NMFS agrees that if no serious injuries or mortalities 
incidental to commercial fishing operations occur during the first six 
months of the plan, the plan will have met its short-term goal. Because 
not all entanglements are observed, it will be impossible to establish 
with surety that the 6-month goal has been met. The MMPA implies that 
the level of serious injuries or mortalities should not only reach the 
PBR level in 6 months but should be maintained at or below that level 
as efforts to further reduce bycatch continue. Therefore, NMFS will 
continue to evaluate the rate of serious injury or mortality from 
entanglements relative to the PBR level over the course of this plan.
    Comments 113: The proposed rule states that because of the small 
population size of right whales and the current procedure for 
calculating the PBR level over five years, it will be difficult to know 
if the 6-month goal is met. Although this may be true if no right 
whales die, it is not true if one does die. If one right whale suffers 
serious injury or mortality incidental to commercial fishing in the 
first six months, then the 6-month goal of less than 0.4 takings per 
year is simply not

[[Page 39180]]

met. At that rate, more than 2 mortalities can be projected per year. 
Given the precariousness of the right whale species, NMFS must err on 
the side of protection in determining whether its goals are being met.
    Response: NMFS agrees.
    Comment 114: It will be impossible to determine whether the Zero 
Mortality Rate Goal has been reached in 5 years.
    Response: NMFS agrees that it will be impossible to determine with 
surety that ZMRG has been met. However, NMFS will assume ZMRG is met if 
the frequency of known cases of serious injuries or mortalities meets 
the ZMRG criteria.
    Comment 115: Since witnessed entanglements will most likely 
continue to be rare, it will probably be necessary to rely on 
scarification data to verify success. If true, it will be especially 
important for NMFS to a) assess current scarification levels in 
humpback whales as a baseline for comparison; and b) start a series of 
annual or biennial reviews of new scarification rates, especially among 
juvenile humpback and right whales. This data, combined with other 
research suggested in the notice, will be important in furthering our 
knowledge of when and where entanglements may and/or do take place.
    Response: An analysis of scarification could provide useful 
information about rates of entanglement, but it is unlikely to be 
sufficient to verify success in achieving the PBR level or ZMRG. First 
of all, such analyses will take considerable time and may not be 
available quickly enough to allow modification of the plan if it is not 
working. In addition, determining the rate of acquiring new scars is 
likely to be difficult, and interpretation of the analysis will be 
complicated by questions about what percentage of scars represent 
serious injuries.
    Comment 116: Several commenters, as well as the TRT and Gear 
Advisory Group supported the proposal of maintaining a central 
repository for gear removed from whales for gear identification and to 
evaluate any information on the performance of modified gear and/or 
implications for future gear modifications.
    Response: NMFS has taken action on this recommendation and has 
collected gear taken off whales beginning in 1994 and up to the present 
and intends to make some form of the materials available to the LWGAG 
and TRT and the public. In some cases, gear is returned to vessel 
owners once the gear is photographed and/or described in detail.
    Comment 117: NMFS states that: ``A decrease in entanglements of 
humpback whales will be taken as supportive evidence that risk of 
entangling right, fin, and minke whales has been reduced.'' Discussion 
during the Take Reduction Team deliberations indicated that NMFS must 
evaluate more than the entanglement rate. NMFS must also assess the 
severity of the entanglement, the amount of gear entangling the whales, 
and the whale's survivorship. This assessment is necessary because 
whale entanglements may actually increase if whales encountering gear 
are more successful, due to gear modifications, in breaking free from 
gear rather than merely drowning and going undetected. A reduction in 
the severity of entanglement or injury, the amount of entangling gear, 
and the presence of entanglement scarring in juveniles may be a better 
indicator as to whether gear modifications and fishing effort reduction 
have reduced the incidence of entanglement resulting in scars (it is 
assumed that if an animal can break away before getting wrapped in the 
gear, there should be little to no evidence of scarring).
    Response: NMFS appreciates this analysis and intends to consider 
these factors in evaluating future entanglement events.
    Comment 118: The proposed monitoring plan is inadequate, because it 
does not include a component relating the amount of sampling to a 
statistical model for evaluating whether the goals of the plan are 
being achieved.
    Response: NMFS will determine whether the goals of the plan are 
being achieved based on known cases of serious injury or mortality due 
to entanglements. This is not a controlled sampling regime, and the 
analysis may be complex. NMFS will use the best scientific information 
available to evaluate the plan.
    Comment 119: There is no time table presented specifying when 
proposed analyses will be completed, except the general statement that 
evaluations will occur at future team meetings. At a minimum, the plan 
should require that the TRT meet annually. It should also specify 
clearly what data will be reviewed.
    Response: The interim final rule discusses this concern and NMFS 
will reconvene the TRT to discuss the interim final rule and possible 
modifications. No date has been set for this meeting but it is expected 
that the TRT will be reconvened before the end of the comment period. 
NMFS expects to reconvene the TRT at least once each year for the 
duration of the plan.
    Comment 120: Although the plan acknowledges the need for additional 
data collection, there is no concomitant acknowledgment of the increase 
in resources needed to complete the analyses of the data, such as 
advanced image recognition software and personnel to do the 
identification and scarring rate analysis. Such details should be 
included in the ALWTRP.
    Response: NMFS places high priority on carrying out this plan, but 
it cannot commit resources in advance of budget allocations. The value 
of advanced image recognition software and scarring rate analyses has 
not yet been determined.
    Comment 121: Any monitoring program for the northern right whale, 
by NMFS own requirements, must be able to tell if a single entanglement 
of a northern right whale even occurs. Yet NMFS' proposal for a 
monitoring program is the status quo, which by its own admission comes 
nowhere close to meeting this goal. The proposed monitoring program 
comes down to nothing more than a token effort. The Draft ALWTRP plan 
for the monitoring programs for the other listed species of whales are 
similarly deficient.
    Response: NMFS disagrees. In the past year NMFS has created the 
Early Warning System which monitors whale activities in the Critical 
Habitat area. NMFS will be expanding that program by inviting states, 
the commercial fishing industry, whale watch vessels to participate in 
the network and broaden the area of surveillance to other high use 
areas. NMFS will also be establishing an outreach and education program 
that should help significantly in reporting sightings of large whales.
    Comment 122: Considering the seriousness of the regulatory actions 
and extremes that are mentioned within the proposed rules this gillnet 
industry association feels that promulgating regulations of this 
magnitude should be based on entanglement recording from irrefutable 
sources. The ability to recognize cetaceans species and the gear 
associated with an entanglement is critical in considering actions to 
be taken.
    Response: NMFS agrees that these are essential elements to 
interpreting entanglement reports. Even though the number of 
entanglement reports received is considered to be a minimum, many of 
these reports are excluded from analysis due to insufficient 
information on species identification and/or gear type.
    Comment 123: The Take Reduction Team's report also recommends that 
whale photographs collected as part of population studies continue to 
be

[[Page 39181]]

analyzed for evidence of fishing gear interactions. This analysis is 
not mentioned explicitly among the NMFS's proposed list of monitoring 
actions and, if the NMFS is not already planning to do so, the Marine 
Mammal Commission (MMC) recommends that NMFS include such analyses in 
its monitoring strategy. The proposed plan also notes that NMFS is 
considering expanding field surveys to assess the population abundance 
and distribution of the relevant whale stocks. Given that such surveys 
are the principal source of photographs for analyzing entanglement 
scars, the Marine Mammal Commission recommends that the Service expand 
the discussion in this section to identify the priority areas and 
approaches where expanded population survey efforts would be most 
helpful with regard to assessing entanglement rate trends.
    Response: NMFS intends to continue monitoring the large whale 
populations as it has in the past. As noted above, analyzing whale 
photographs for evidence of fishing gear interactions could provide 
useful information on entanglement rates. NMFS is not yet convinced 
that this should be a part of the plan, however, as there are questions 
about the gathering, analysis and interpretation of the data. NMFS 
intends to seek a fuller discussion of these points at the TRT.
    Comment 124: Because of the need to consider the anatomy, behavior, 
and ecology of large whales in evaluating potential fishing techniques 
and gear modifications that would reduce entanglement risks, the MMC 
recommends that the NMFS expand the proposed membership of the gear 
advisory group to include whale biologists with direct knowledge of the 
whale species of concern. Because of the need to consider the 
conservation benefits of potential gear modifications, we also believe 
the group should include a representative of environmental 
organizations.
    Response: The Gear Advisory Team membership already includes three 
whale biologists. NMFS will consider adding a fourth.
    Comment 125: The State of Maine and the Maine lobster fishing 
industry expressed a willingness to place on-board observers aboard our 
vessels, as is required under the law for any Category I Fishery.
    Response: NMFS appreciates the assistance offered by the State of 
Maine and the Maine lobster fishing industry, and will discuss this 
option once the outreach and education program is operational.
    Comment 126: A gillnet industry organization recommended continued 
observer coverage on all fixed gear vessels operating in the Great 
South Channel critical habitat from March 1-June 30. This additional 
month for observer coverage is to determine if whales are sighted and 
if entanglements do occur.
    Response: NMFS appreciates this suggestion and will try to arrange 
additional observer coverage in this area if extra observer days are 
available when the allocations of observer effort are made.
    Comment 127: Several commenters recommended that NMFS incorporate a 
system of gear loss reporting into the monitoring of the entanglement 
problem. If reporting were instant, disentanglement teams would have 
information on whether gear loss was reported in an area where an 
entangled whale was seen. In addition, gear lost to gear conflicts or 
user-group conflicts would be appropriately identified as ghost gear in 
the event that same piece of gear was found on a whale.
    Response: NMFS appreciates this suggestion, which will be 
considered in future evaluations.
    Comment 128: Several commenters supported the need to expand field 
surveys to determine differential use of the area by right whales and 
humpback whales. Additional effort directed to surveys in and around 
critical habitat may also assist in efforts to implement dynamic 
management measures.
    Response: NMFS will further expand field surveys as funding is 
available. It is committed to continuing the Early Warning System, 
which may provide information useful for dynamic management.
    Comment 129: Concern over the need to assess the efficacy of gear 
modifications and to correctly assign cause of mortality in whales 
underscores the need to prioritize examination of carcasses to 
determine cause of death.
    Response: NMFS agrees that an examination of whale carcasses can 
provide important information on how entanglements occur and on the 
cause of death of a whale.
    Comment 130: An active right whale patrol should be established on 
a daily basis probably in conjunction with other United States Coast 
Guard activities.
    Response: NMFS has instituted a right whale Early Warning System in 
cooperation with numerous state and Federal regulatory agencies, 
including the Coast Guard, first in the southeast and more recently in 
the northeast. These surveys focus on right whale critical habitat 
areas and disseminate timely information on right whale movements to 
the marine community.

22. Comments on Market Incentives to Reduce Bycatch

    Comment 131: One conservation group stated that they support NMFS's 
decision to postpone the designation of a team to investigate the 
development of market incentives.
    Response: This comment reflects NMFS's position at this time. This 
option was discussed by the TRT, and additional information on their 
recommendations can be found in the TRT report.

23. Comments on Definitions

    Comment 132: With regard to gillnet modifications, incorrect 
terminology has been used. Gillnets have ``lead line'', not ``foot 
ropes''; and they have ``float lines'' not ``head ropes''. The terms 
``foot rope'' and ``head rope'' refer primarily to draggers (trawlers) 
and the use of these terms is inappropriate when referring to gillnets.
    Response: NMFS had used these terms to avoid confusion between 
surface buoys (also called ``floats'') and net floats and between the 
buoy line (sometimes called ``lead line'', i.e., by the alternate 
pronunciation of the word) and the weighted line at the bottom of the 
string of nets. However, in response to the industry's request for 
clarification, the definitions have been changed in this rule.
    Comment 133: It was recommended that the term ``modified sinking 
buoy line'' be defined to include sinking line, or polypropylene line 
with lead sinkers hammered on, as is the practice in many areas to sink 
buoy line.
    Response: In this interim final rule, the term ``modified sinking 
buoy line'' is not used. NMFS will ask the TRT to discuss the 
appropriateness of using lead sinkers to cause polypropylene rope to 
sink.
    Comment 134: The definition of a buoy should also be clarified. 
Lobstermen commonly ``stack'' buoys together to form a ``float'' for 
one buoy line. A buoy could also be comprised of two buoys separated by 
a length of line, one at the surface and one subsurface.
    Response: This interim final rule clarifies that if more than one 
buoy is attached to a buoy line, or if a buoy and a high flyer are 
attached to a buoy line, the weak link, if used, should be between the 
buoy line and the buoy closest to the fishing gear.
    Comment 135: NMFS should specify whether ``breaking strength'' 
refers to tensile strength or safe working load.
    Response: The breaking strength described in the proposed rule 
refers to ultimate tensile strength, not safe working load. The term 
``breaking

[[Page 39182]]

strength'' is defined in the interim final rule.

Classification

    This rule has been determined to be significant for purposes of 
E.O. 12866. In formulating this rule, NMFS considered a number of 
alternatives, including no action, wide-spread closures, requiring 
specific gear modifications as in the proposed rule, and the current 
rule.
    Inaction would have entailed no cost to the industry but would not 
reduce the serious injury or mortality to right whales from commercial 
fishing gear to below the Potential Biological Removal Level and 
therefore was deemed insufficient to comply with the MMPA. While it is 
impossible to quantify the benefit of protecting endangered species, 
protecting one of the rarest species in the world, the northern right 
whale, is a goal that would appear to have high value. Protecting 
species from extinction may convey significant future benefits in terms 
of maintaining the balance of an ecosystem or in valuable biological 
insights. Furthermore, protecting a species for its own sake is of high 
value to many people. For example, in an effort to quantify the value 
of a related marine mammal species, a recent study of households in 
Massachusetts found that they would be willing to pay between $176 to 
$364 per household to eliminate the deaths by entanglement of 1000 
harbor porpoises. If these numbers are applied to the total population 
of Massachusetts households, the lower bound of the total value 
households in Massachusetts alone would be willing to pay for harbor 
porpoise conservation is $395 million. Harbor porpoises are not 
endangered species. Economic theory would predict that people would be 
willing to pay even more to protect right whales.
    Widespread closures, although they might achieve the goals of the 
MMPA, would be economically costly. Such huge economic costs would not 
be necessary if disentanglement efforts and gear modifications are 
successful in reducing bycatch to MMPA standards.
    This document presents a number of reasons why the original rule 
proposed by NMFS on April 7 was not acceptable (see ``Changes from the 
proposed rule''). In brief, the original proposal contained a number of 
untested ideas that would have entailed significant costs to the 
industry. Although these costs would have been less burdensome than a 
full-scale closure, the expected costs would have been in the tens of 
millions of dollars. While this level of expenditure might be 
justifiable if the conservation benefits to large whales could be 
determined, there was no guarantee that these costly measures would 
achieve the stated goals. In some cases, the proposed regulation might 
have made the situation worse for whales. For example, there may have 
been an increase in the amount of lost gear in the water that would 
also pose an entanglement threat.
    The estimated maximum ten-year costs for this proposal in present 
value terms, using a 7% discount rate, is $20.7 million. This is based 
on the assumption that vessels will use the costliest alternative 
(i.e., whipping) to meet their gear marking requirements. The year-one 
cost based on the same assumptions is $10.3 million. If paint is used 
to apply marks, the costs will be substantially less. While the cost of 
these measures is substantial, the benefit they are expected to bring 
is reducing serious injuries and mortalities to large whales to a more 
sustainable level (i.e., below the potential biological removal level) 
within six months and to insignificant levels within 5 years. These 
measures are expected to assist in the recovery of endangered species 
of large whales in the North Atlantic, a goal that would seem to have 
intrinsic biological and social value, since marine mammals have proven 
themselves to be resources of great international significance, 
esthetic and recreational as well as economic.
    The gear marking requirements in section 229.32 (b), (c)(1), 
(d)(1), (e)(1), and (f)(1) constitute a collection of information. Each 
gear mark referred to below consists of a two-color code. This 
collection of information is being submitted to the Office of 
Management and Budget (OMB) for review and approval under the Paperwork 
Reduction Act. Estimates shown below do not include any estimates of 
the time burden required for the recreational lobster fleet because the 
amount of gear fished by this sector is unknown. The analysis also does 
not include additional time required by vessels that may switch between 
different fishing areas during the year, such as shifting from inshore 
to offshore lobster fishing. Therefore, the estimates below are likely 
to be a lower bound on the actual time required to comply with the gear 
marking requirements.
    The time it takes a vessel to comply with the gear marking 
requirements depends on the method they choose. Painting is estimated 
to take 30 seconds per mark, and whipping is estimated to take 10 
minutes per mark. Assuming these are the minimum and maximum times 
required per mark, a range of values will be reported. The average 
reporting requirements for painting these marks is estimated to be 
0.067 hours per trawl or gillnet string. This would equal a total of 
4,127 hours to place the required marks, or 1.38 hours per firm. For 
whipping, the average reporting requires 1.33 hours per string or 
trawl. This would equal a total of 477,200 hours to place all the 
required marks, or 153 hours per firm. Marks that are whipped will last 
3 years, while painted marks are expected to last one year. Firms will 
pick the method which minimizes their costs, which makes it likely that 
the vast majority will paint their lines because of the lower labor 
costs.
    Driftnets used in the shark driftnet fishery operating in the 
Southeastern U.S. Atlantic waters may be up to 6493 feet (2000 meters) 
in length. An average net with 2 buoy lines and 4870 feet (1500 meters) 
in length would require approximately 100 marks that could be placed in 
approximately 2.5 hours per vessel. In most years, 12 vessels 
participate in the shark driftnet fishery, therefore there would be a 
total of approximately 1200 marks equaling approximately 30 hours of 
reporting for the entire fishery. After 1999, marks must be renewed as 
they deteriorate. Annual replacement or repair of gear is anticipated 
in the shark driftnet fishery, therefore the estimate of marking time 
given above is likely to reflect the annual reporting burden.
    An increase in the gear used or a decrease in the life expectancy 
of the markings would result in a linear increase in the total hours.
    Send comments regarding these burden estimates or any other aspect 
of the collection of information, including suggestions for reducing 
the burdens, to NMFS and OMB (see ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB Control Number.
    NMFS prepared an Initial Regulatory Flexibility Analysis that 
described the impact the proposed rule was expected to have on small 
entities, but changes to that proposed rule contained in this interim 
final rule are expected to minimize those impacts. NMFS prepared a 
Regulatory Impact review for this interim final rule and concluded that 
a Final Regulatory Flexibility Analysis was unnecessary. NMFS standards 
for Regulatory Flexibility Analysis determinations are: five percent 
loss of revenue for 20 percent of the participants; 10 percent increase 
in

[[Page 39183]]

operations costs for 20 percent of the participants; and two percent of 
participants cease operations.
    The need for, and objectives of this interim final rule and a 
summary of the significant issues are described elsewhere in this 
preamble. 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 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 estimate to be 350, 
650, and 12, respectively. However, about 4,500 lobster firms and about 
320 gillnet firms will be affected by this interim final rule. This 
interim final rule includes reporting or recordkeeping requirements, 
since it requires that fishing gear be marked. It also requires that 
gear be modified in various ways to reduce potential interactions with 
large whales. In certain cases, area closures are required. No special 
skills are required beyond those necessary to conduct the above fishing 
operations.
    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 interim final 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 being initiated 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.
    In this interim final rule, NMFS has taken the following steps to 
minimize the significant economic impact on small entities: (1) It has 
exempted waters where the risk of entangling right whales is low. This 
action eliminates any economic cost for a large portion of the coastal 
lobster industry. (2) It will not require any untested gear to be 
deployed. This will eliminate costs for lost gear beyond usual wear and 
tear. (3) It will not require any expensive gear modifications at this 
time. NMFS will allow fishermen to choose from a menu of gear 
characteristics that have been tested in the field and which are 
thought to be helpful in reducing entanglements. Most of the items 
currently on the menus represent current best fishing practices, which 
many fishermen already use. (4) Some possible closures have been 
eliminated, such as the closure contingent upon the unusual presence of 
four or more right whales in an area. This will allow fishermen to plan 
better and will eliminate the potential cost of lost revenue should 
such a closure have been instituted. (5) It has devised a simpler, 
quicker and less expensive system for marking gear. Painting line is 
now allowed, which should minimize the time and cost required to mark 
gear. A discussion of the reasons for selecting these alternatives and 
a review of other significant regulatory alternatives can be found in 
the EA prepared for this action.
    As a result of this analysis, NMFS has determined that no 
Regulatory Flexibility Analysis was required. The costs of the measures 
required by this interim final rule have been determined to be 
relatively low on a per firm basis, and none of the NMFS standards for 
Regulatory Flexibility Analysis determinations are anticipated to be 
met. Therefore, NMFS believes that this interim final rule will not 
have a significant impact on a substantial number of small entities.
    The Assistant Administrator for Fisheries, NOAA, prepared an 
environmental assessment (EA) for this interim final rule under the 
National Environmental Policy Act. The EA concludes that this plan is 
not likely to have a significant impact on the human environment. In 
addition, NMFS has prepared a Biological Opinion to review this action 
for compliance with Section 7 of the Endangered Species Act. The 
Biological Opinion concludes that implementation of the plan and 
continued operation of fisheries conducted under the American Lobster 
and Multispecies Fishery Management Plans and the Southeastern shark 
gillnet component of the Shark Fishery Management Plan, may adversely 
affect, but are not likely to jeopardize the continued existence of any 
species of large whales or sea turtles listed under the Endangered 
Species Act. A copy of the EA and the Biological Opinion is available 
upon request (see ADDRESSES).

References

    Waring, G.T. et al. 1996. U.S. Atlantic and Gulf of Mexico Marine 
Mammal Stock Assessments. In preparation.
    Team Report. 1997. Draft Atlantic Large Whale Take Reduction 
Report. Report prepared by the Atlantic Large Whale Take Reduction Team 
and submitted to the National Marine Fisheries Service February 4, 
1997. 79pp.

List of Subjects in 50 CFR Part 229

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

    Dated: July 15, 1997.
Rolland Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

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

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

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

    2. In Sec. 229.2, definitions of ``American lobster or Lobster'', 
``Anchored gillnet'', ``Assistant Administrator'', ``Breaking 
Strength'', ``Bridle'', ``Buoy line'', ``Driftnet, drift gillnet or 
drift entanglement net'', ``Fish with or fishing with'', ``Float-
line'', ``Gillnet'', ``Groundline'', ``Inshore lobster waters'', 
``Lead-line'', ``Lobster pot'', ``Lobster pot trawl'', ``Mid-Atlantic 
coastal waters'', ``Northeast waters'', ``Offshore lobster waters'', 
``Operator'', ``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'', and ``Weak link'' are added in alphabetical order to read as 
follows:


Sec. 229.2  Definitions.

* * * * *
    American lobster or lobster means 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.
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Oceanic and Atmospheric Administration.
* * * * *

[[Page 39184]]

    Breaking strength means the highest tensile force which an object 
can withstand before breaking.
    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.
* * * * *
    Float-line means the rope at the top of a gillnet from which the 
mesh portion of the net is hung.
    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.
* * * * *
    Inshore Lobster waters means all state and Federal waters between 
36 deg.33'00.8''N lat. (the Virginia/North Carolina border) and the 
U.S./Canada border that is shoreward of the area designated below as 
``offshore lobster waters.''
* * * * *
    Lead-line means the rope, weighted or otherwise, to which the 
bottom edge of a gillnet is attached.
* * * * *
    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 two or more lobster pots attached to a 
single groundline.
    Mid-Atlantic coastal waters means waters bounded by the line 
defined by the following points: The southern shoreline of Long Island, 
New York at 72 deg.30'W, then due south to 33 deg.51'N lat., thence 
west to the North Carolina/South Carolina border.
* * * * *
    Northeast waters means those U.S. waters east of 72 deg.30'W and 
north of 36 deg.33'00.8''N lat. (the Virginia-North Carolina border).
* * * * *
    Offshore lobster waters includes all U.S. waters seaward of the 
following lines except for waters in the Great South Channel critical 
right whale habitat: Beginning at the international boundary between 
the U.S. and Canada; thence southerly along the boundary to the LORAN C 
9960-Y-44400 line; thence southwesterly along the 44400 line to 
70 deg.W long.; thence south along the 70 deg. meridian to the LORAN C 
9960-W-13700 line; thence southeasterly to the intersection with the 
LORAN C 9960-Y-43700 line; thence westerly to the intersection with the 
LORAN C 9960-W-14610 line; thence southerly along the 14610 line to the 
intersection with the LORAN C 9960-Y-43700 line; thence southwesterly 
to the intersection of the LORAN C lines 9960-Y-43500 and 9960-X-26400; 
thence southerly to the intersection of the LORAN C lines 9960-Y-42600 
and 9960-X-26550; thence southerly to the intersection of the LORAN C 
lines 9960-Y-42300 and 9960-X-26700; thence southerly to the 
intersection of the LORAN C lines 9960-Y-41600 and 9960-X-26875; thence 
southerly in a line toward the intersection of LORAN C lines 9960-Y-
40600 and 9960-X-26800 but stopping at 36 deg.33'00.8''N lat. (the 
North Carolina/Virginia border); thence due west to the shore.
    Operator, with respect to any vessel, means the master, captain, or 
other individual in charge of that vessel.
* * * * *
    Sink gillnet has the meaning specified in 50 CFR 648.2.
    Sinking line means rope that sinks and does not float at any point 
in the water column. Polypropylene rope is not sinking line unless it 
contains a lead core.
    Southeast waters means waters south of a line extending due 
eastward from 33 deg.51'N lat. (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 all Federal waters in the 
Gulf of Maine, except those designated as right whale critical habitat, 
that lie south of the 43 deg.15'N lat. line and west of the 70 deg. W 
long. line.
* * * * *
    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, or to fish 
with such a net and method.
* * * * *
    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 and Federal waters to the outer 
boundaries 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 link means a breakable device that will part when subject to a 
certain tension load.
    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 (c)(4) through (c)(10) unless 
the lobster pot 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) through (c)(10).
    (h) It is prohibited to fish with anchored gillnet gear in the 
areas and for the times specified in Sec. 229.32 (d)(3) through (d)(8) 
unless that gillnet gear meets the marking requirements specified in 
Sec. 229.32(d)(1) and complies with the closures, modifications, and 
restrictions specified in Sec. 229.32 (d)(2) through (d)(8).
    (i) It is prohibited to fish with drift gillnets in the areas and 
for the times specified in Sec. 229.32(e)(2) unless the drift gillnet 
gear meets the marking requirements specified in Sec. 229.32(e)(1) and 
complies with the restrictions specified in Sec. 229.32(e)(2).
    (j) It is prohibited to fish with shark driftnet gear in the areas 
and for the times specified in Sec. 229.32(f) (2) and (3) unless the 
gear meets the marking requirements specified in Sec. 229.32(f)(1) and 
complies with the restrictions and requirements specified in 
Secs. 229.32 (f)(2) and (f)(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)(1) Regulated waters. The regulations in this section apply to 
all U.S. waters except for the areas

[[Page 39185]]

exempted in paragraph (a)(2) of this section.
    (2) Exempted waters. The regulations in this section do not apply 
to waters landward of the following lines:

Maine and New Hampshire

44 deg. 49.52'N 66 deg. 56.10'W TO 44 deg. 48.90'N 66 deg. 57.00'W
44 deg. 38.60'N 67 deg. 11.50'W TO 44 deg. 36.26'N 67 deg. 15.70'W
44 deg. 36.26'N 67 deg. 15.70'W TO 44 deg. 27.80'N 67 deg. 32.85'W
44 deg. 27.80'N 67 deg. 32.85'W TO 44 deg. 26.48'N 67 deg. 36.00'W
44 deg. 26.48'N 67 deg. 36.00'W TO 44 deg. 21.75'N 67 deg. 51.85'W
44 deg. 21.75'N 67 deg. 51.85'W TO 44 deg. 19.60'N 68 deg. 03.00'W
44 deg. 19.45'N 68 deg. 02.00'W TO 44 deg. 14.40'N 68 deg. 11.55'W
44 deg. 14.15'N 68 deg. 11.90'W TO 44 deg. 13.25'N 68 deg. 20.20'W
44 deg. 13.25'N 68 deg. 20.20'W TO 44 deg. 13.71'N 68 deg. 28.31'W
44 deg. 13.21'N 68 deg. 28.92'W TO 44 deg. 10.48'N 68 deg. 35.80'W
44 deg. 10.48'N 68 deg. 35.80'W TO 44 deg. 08.80'N 68 deg. 40.80'W
44 deg. 08.80'N 68 deg. 40.80'W TO 44 deg. 02.25'N 68 deg. 48.25'W
44 deg. 02.10'N 68 deg. 48.40'W TO 43 deg. 51.75'N 69 deg. 17.10'W
43 deg. 51.75'N 69 deg. 17.10'W TO 43 deg. 48.15'N 69 deg. 35.90'W
43 deg. 48.15'N 69 deg. 35.90'W TO 43 deg. 42.00'N 69 deg. 51.10'W
43 deg. 42.00'N 69 deg. 50.10'W TO 43 deg. 33.47'N 70 deg. 12.35'W
43 deg. 33.47'N 70 deg. 12.35'W TO 43 deg. 21.90'N 70 deg. 24.90'W

Rhode Island

41 deg. 22.41'N 71 deg. 30.80'W TO 41 deg. 22.41'N 71 deg. 30.85'W 
(Pt. Judith Pond Inlet)
41 deg. 21.31'N 71 deg. 38.30'W TO 41 deg. 21.30'N 71 deg. 38.33'W 
(Ninigret Pond Inlet)
41 deg. 19.90'N 71 deg. 43.08'W TO 41 deg. 19.90'N 71 deg. 43.10'W 
(Quonochontaug Pond Inlet)

New York

    West of the line from the Northern fork of the eastern end of 
Long Island, NY (Orient Pt.) to Plum Island to Fisher's Island to 
Watch Hill, RI. (Long Island Sound)
41 deg. 11.40'N 72 deg. 09.70'W TO 41 deg. 04.50'N 71 deg. 51.60'W 
(Gardiners Bay)
40 deg. 50.30'N 72 deg. 28.50'W TO 40 deg. 50.36'N 72 deg. 28.67'W 
(Shinnecock Bay Inlet)
40 deg. 45.70'N 72 deg. 45.15'W TO 40 deg. 45.72'N 72 deg. 45.30'W 
(Moriches Bay Inlet)
40 deg. 37.32'N 73 deg. 18.40'W TO 40 deg. 38.00'N 73 deg. 18.56'W 
(Fire Island Inlet)
40 deg. 34.40'N 73 deg. 34.55'W TO 40 deg. 35.08'N 73 deg. 35.22'W 
(Jones Inlet)

New Jersey

39 deg. 45.90'N 74 deg. 05.90'W TO 39 deg. 45.15'N 74 deg. 06.20'W 
(Barnegat Inlet)
39 deg. 30.70'N 74 deg. 16.70'W TO 39 deg. 26.30'N 74 deg. 19.75'W 
(Beach Haven to Brigantine Inlet)
38 deg. 56.20'N 74 deg. 51.70'W TO 38 deg. 56.20'N 74 deg. 51.90'W 
(Cape May Inlet)
39 deg. 16.70'N 75 deg. 14.60'W TO 39 deg. 11.25'N 75 deg. 23.90'W 
(Delaware Bay)

Maryland/Virginia

 38 deg. 19.48'N 75 deg. 05.10'W TO 38 deg. 19.35'N 75 deg. 05.25'W 
(Ocean City Inlet)
37 deg. 52.50'N 75 deg. 24.30'W TO 37 deg. 11.90'N 75 deg. 48.30'W 
(Chincoteague to Ship Shoal Inlet)
37 deg. 11.10'N 75 deg. 49.30'W TO 37 deg. 10.65'N 75 deg. 49.60'W 
(Little Inlet)
37 deg. 07.00'N 75 deg. 53.75'W TO 37 deg. 05.30'N 75 deg. 56.50'W 
(Smith Island Inlet)

North Carolina to Florida

    All marine and tidal waters landward of the 72 COLREGS 
demarcation line (International Regulations for Preventing 
Collisions at Sea, 1972), as depicted or noted on nautical charts 
published by the National Oceanic and Atmospheric Administration 
(Coast Charts 1:80,000 scale), and as described in 33 CFR part 80.

    (b) Gear marking provisions--(1) Gear marking required for 
specified gear--(i) Specified gear. Specified fishing gear consists of 
lobster pot gear in inshore and offshore lobster waters, anchored 
gillnet gear in northeast waters and in mid-Atlantic coastal waters; 
drift gillnet gear in mid-Atlantic coastal waters; and shark driftnet 
gear in southeast waters.
    (ii) Requirement. From January 1, 1998, and as otherwise required 
in paragraphs (c)(1), (d)(1), (e)(1), and (f)(1) of this section, any 
person who owns or fishes with specified fishing gear must mark that 
gear as specified in paragraphs (b)(2) and (b)(3) of this section, 
unless otherwise required by the Assistant Administrator under 
paragraph (g) of this section.
    (2) Color code. Gear must be marked as specified with the 
appropriate colors to designate gear-types as follows:

Lobster pot gear in inshore lobster waters--red and green
Lobster pot gear in offshore lobster waters--red and blue
Anchored gillnet gear in northeast waters--green and yellow
Anchored gillnet gear in mid-Atlantic waters--green and black
Mid-Atlantic driftnet gear--blue and yellow
Shark driftnet gear--blue and black

    (3) Markings. Each color of the color codes must be permanently 
marked on or along the line or lines specified under paragraphs (c)(1), 
(d)(1), (e)(1), and (f)(1) of this section. Each color mark of the 
color codes must be clearly visible when the gear is hauled or removed 
from the water. Each mark must be at least 4 inches (10.2 cm) long. The 
two color marks must be placed within 6 inches (15.2 cm) of each other. 
(For example, buoy lines of inshore lobster pot gear must have a red 
mark and a green mark, each at least 4 inches long, with the red and 
green marks placed within 6 inches of each other.) If the color of the 
rope is the same or similar to a color code, a white mark may be 
substituted for that color code. In marking or affixing the color code 
or associated neutral band, the line may be dyed, painted, 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, or the line may be marked as approved in writing by the 
Assistant Administrator. If the Assistant Administrator revises the 
gear marking requirements under paragraph (g) of this section, the gear 
must be marked in compliance with those requirements.
    (c) Restrictions applicable to lobster pot gear in regulated 
waters--(1) Gear marking requirements. No person may fish with lobster 
pot gear in regulated waters unless that gear is marked by gear type 
and region according to the gear marking code specified under paragraph 
(b) of this section. From January 1, 1998, all buoy lines used in 
connection with lobster pot gear must be marked within 2 ft (0.6 m) of 
the top of the buoy line (or 2 ft below a weak link) and midway along 
the length of the buoy line.
    (2) No line floating at the surface. No person may fish with 
lobster pot gear that has any portion of the buoy line floating at the 
surface at any time, except that, if there are more than one buoy 
attached to a single buoy line or if there are a high flyer and a buoy 
used together on a single buoy line, floating line may be used between 
these objects.
    (3) No wet storage of gear. No person may leave lobster pot gear in 
the water without hauling it out of the water at least once in 30 days.
    (4) Cape Cod Bay Restricted area.--(i) Area. The Cape Cod Bay 
restricted area consists of the Cape Cod Bay Critical Habitat area 
specified under 50 CFR 216.13(b), unless the Assistant Administrator 
extends that area in accordance with paragraph (g) of this section.
    (ii) Winter restricted period. The winter restricted period for 
this area is from January 1 through May 15 of each year, unless the 
Assistant Administrator revises the restricted period in accordance 
with paragraph (g) of this section. The Assistant Administrator may 
waive the restrictions of these paragraphs through a document in the 
Federal Register if it is determined that right whales have left the 
critical habitat and are unlikely to return for the remainder of the 
winter restricted period. During the winter restricted period, no 
person may fish with lobster pot gear in the Cape Cod Bay Restricted 
Area unless that person's gear complies with the following 
requirements:
    (A) Weak links. All buoy lines are attached to the buoy with a weak 
link.

[[Page 39186]]

The breaking strength of this weak link must be no more than 1100 lb;
    (B) Multiple pot trawls. All pots are set in trawls of four or more 
pots. Single pots and two or three pot trawls are not allowed.
    (C) Sinking buoy lines. All buoy lines are sinking line except the 
bottom portion of the line, which may be a section of floating line not 
to exceed 1/3 the overall length of the buoy line.
    (D) Sinking ground line. All ground lines are made entirely of 
sinking line.
    (iii) Other restricted period. From May 16 through December 31 of 
each year, no person may fish with lobster pot gear in the Cape Cod Bay 
Restricted Area unless that person's gear complies with at least two of 
the characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(11) of this section. The Assistant Administrator may 
revise this restricted period in accordance with paragraph (g) of this 
section.
    (5) Great South Channel Restricted Lobster Area.--(i) Area. The 
Great South Channel restricted area consists of the Great South Channel 
Critical Habitat area specified under 50 CFR 216.13(a) unless the 
Assistant Administrator changes that area in accordance with paragraph 
(g) of this section.
    (ii) Spring closed period. The spring closed period for this area 
is from April 1 through June 30 of each year unless the Assistant 
Administrator revises the closed period in accordance with paragraph 
(g) of this section. During the spring closed period, no person may 
fish with or set lobster pot gear in the Great South Channel restricted 
lobster area unless the Assistant Administrator specifies gear 
modifications or alternative fishing practices in accordance with 
paragraph (g) of this section and the gear or practices comply with 
those specifications.
    (iii) Other restricted period. From July 1 through March 31 no 
person may fish with lobster pot gear in the Great South Channel 
Restricted Lobster Area unless that person's gear complies with at 
least two of the characteristics of the Lobster Take Reduction 
Technology List in paragraph (c)(11) of this section. The Assistant 
Administrator may revise this restricted period in accordance with 
paragraph (g) of this section.
    (6) Stellwagen Bank/Jeffreys Ledge Restricted Area.--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge restricted area consists of all Federal 
waters of the Gulf of Maine that lie to the south of the 43 deg.15'N 
lat. line and west of the 70 deg. W long. line, except for right whale 
critical habitat, unless the Assistant Administrator changes that area 
in accordance with paragraph (g) of this section.
    (ii) Gear Requirements. No person may fish with lobster pot gear in 
the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that person's 
gear complies with at least two of the characteristics of the Lobster 
Take Reduction Technology List in paragraph (c)(11) of this section. 
The Assistant Administrator may revise this requirement in accordance 
with paragraph (g) of this section.
    (7) Northern offshore lobster waters.--(i) Area. The northern 
offshore waters area includes all offshore lobster waters north of 
41 deg.30'N lat., except for areas included in the Great South Channel 
Critical Habitat.
    (ii) Gear requirements. No person may fish with lobster pot gear in 
the northern offshore lobster waters area unless that person's gear 
complies with at least one of the characteristics of the Lobster Take 
Reduction Technology List in paragraph (c)(11) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (8) Southern offshore lobster waters.--(i) Area. The southern 
offshore waters area includes all offshore lobster waters south of 
41 deg.30 N lat., except for areas included in the Great South Channel 
Critical Habitat.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with lobster pot gear in the southern offshore lobster waters 
area unless that person's gear complies with at least one of the 
characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(11) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (9) Northern inshore lobster waters.--(i) Area. Northern inshore 
lobster waters consist of all inshore lobster waters north of 
41 deg.30' N lat., except the Cape Cod Bay restricted area, Great South 
Channel restricted area and the Stellwagen Bank/Jeffreys Ledge 
restricted area.
    (ii) Gear requirements. No person may fish with lobster pot gear in 
the northern inshore lobster waters area unless that person's gear 
complies with at least one of the characteristics of the Lobster Take 
Reduction Technology List in paragraph (c)(11) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (10) Southern inshore lobster waters.--(i) Area. The southern 
inshore lobster waters consist of all inshore lobster waters south of 
41 deg.30' N lat., except the Great South Channel restricted area.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with lobster pot gear in the southern inshore lobster waters 
area unless that person's gear complies with at least one of the 
characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(11) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (11) Lobster Take Reduction Technology List. The following gear 
characteristics comprise the Lobster Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches in diameter or less.
    (ii) All buoys are attached to the buoy line with a weak link 
having a maximum breaking strength of up to 1100 lb. Weak links may 
include swivels, plastic weak links, rope of appropriate diameter, hog 
rings, rope stapled to a buoy stick, or other materials or devices 
approved in writing by the Assistant Administrator.
    (iii) For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line with a weak link having a maximum breaking 
strength of up to 3780 lb.
    (iv) For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line by a section of rope no more than \3/4\ the 
diameter of the buoy line.
    (v) All buoy lines are composed entirely of sinking line.
    (vi) All ground lines are made of sinking line.
    (d) Restrictions applicable to anchored gillnet gear in regulated 
waters.--(1) Marking requirements. No person may fish with anchored 
gillnet gear in northeast or mid-Atlantic waters unless that gear is 
marked according to the gear marking code specified under paragraph (b) 
of this section. From January 1, 1998, all buoy lines used in 
connection with anchored gillnets must be marked within 2 ft (0.6 m) of 
the top of the buoy line (or two ft below a weak link) and midway along 
the length of the buoy line.
    (2) No line floating at the surface. No person may fish with 
anchored gillnet gear that has any portion of the buoy line floating at 
the surface at any time, except that, if there are more than one buoy 
attached to a single buoy line or if there are a high flyer and a buoy 
used together on a single buoy line, floating line may be used between 
these objects.
    (3) Cape Cod Bay restricted area.--(i) Area. The Cape Cod Bay 
restricted area consists of the Cape Cod Bay Critical Habitat area 
specified under 50 CFR 216.13(b), unless the Assistant Administrator 
extends that area under paragraph (g) of this section.

[[Page 39187]]

    (ii) Winter restricted period. The winter restricted period for 
this area is from January 1 through May 15 of each year, unless the 
Assistant Administrator revises the restricted period under paragraph 
(g) of this section. During the winter restricted period, no person may 
fish with anchored gillnet gear in the Cape Cod Bay restricted area 
unless the Assistant Administrator specifies gear modifications or 
alternative fishing practices under paragraph (g) of this section and 
the gear or practices comply with those specifications. The Assistant 
Administrator may waive this closure for the remaining portion of any 
year through a notification in the Federal Register if NMFS determines 
that right whales have left the critical habitat and are unlikely to 
return for the remainder of the season.
    (iii) Other restricted period. From May 16 through December 31 of 
each year, no person may fish with anchored gillnet gear in the Cape 
Cod Bay Restricted Area unless that person's gear complies with at 
least two of the characteristics of the Gillnet Take Reduction 
Technology List in paragraph (d)(9) of this section. The Assistant 
Administrator may revise this restricted period in accordance with 
paragraph (g) of this section.
    (4) Great South Channel restricted gillnet area--(i) Area. The 
Great South Channel restricted gillnet area consists of the area 
bounded by lines connecting the following four points: 41 deg.02.2' N/
69 deg.02' W., 41 deg.43.5' N/69 deg.36.3' W., 42 deg.10' N/68 deg.31' 
W., and 41 deg.38' N/68 deg.13' W., unless the Assistant Administrator 
changes that area in accordance with paragraph (g) of this section. 
This area includes the Great South Channel critical habitat area 
specified under 50 CFR 216.13(a), except for the ``sliver area'' 
identified below.
    (ii) Spring closed period. The spring closed period for this area 
is from April 1 through June 30 of each year unless the Assistant 
Administrator revises the closed period in accordance with paragraph 
(g) of this section. During the spring closed period, no person may set 
or fish with anchored gillnet gear in the Great South Channel 
restricted gillnet area unless the Assistant Administrator specifies 
gear modifications or alternative fishing practices in accordance with 
paragraph (g) of this section and the gear or practices comply with 
those specifications.
    (iii) Other restricted period. From July 1 through March 31 no 
person may fish with lobster pot gear in the Great South Channel 
restricted gillnet area unless that person's gear complies with at 
least two of the characteristics of the Gillnet Take Reduction 
Technology List in paragraph (d)(9) of this section. The Assistant 
Administrator may revise this restricted period in accordance with 
paragraph (g) of this section.
    (5) Great South Channel sliver restricted area--(i) Area. The Great 
South Channel sliver restricted area consists of the area bounded by 
lines connecting the following points: 41 deg.02.2' N/69 deg.02' W., 
41 deg.43.5' N/69 deg.36.3' W., 41 deg.40' N/69 deg.45' W., and 
41 deg.00' N/69 deg.05' W., unless the Assistant Administrator changes 
that area in accordance with paragraph (g) of this section.
    (ii) Gear requirements. No person may fish with anchored gillnet 
gear in the Great South Channel sliver restricted area unless that 
person's gear complies with at least two of the characteristics of the 
Gillnet Take Reduction Technology List in paragraph (d)(9) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (6) Stellwagen Bank/Jeffreys Ledge restricted area--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge restricted area consists of all Federal 
waters of the Gulf of Maine that lie to the south of the 43 deg.15# N. 
lat. line and west of the 70 deg. W long. line, except right whale 
critical habitat, unless the Assistant Administrator changes that area 
in accordance with paragraph (g) of this section.
    (ii) Gear requirements. No person may fish with anchored gillnet 
gear in the Stellwagen Bank/Jeffreys Ledge restricted area unless that 
person's gear complies with at least two of the characteristics of the 
Gillnet Take Reduction Technology List in paragraph (d)(9) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (7) Other northeast waters area--(i) Area. The other northeast 
waters area consists of all northeast waters except for the Cape Cod 
Bay restricted area, the Great South Channel restricted gillnet area 
and Great South Channel sliver restricted areas and the Stellwagen 
Bank/Jeffreys Ledge restricted area.
    (ii) Gear requirements. No person may fish with anchored gillnet 
gear in the other northeast waters area unless that person's gear 
complies with at least one of the characteristics of the Gillnet Take 
Reduction Technology List in paragraph (d)(9) of this section. The 
Assistant Administrator may revise these requirements in accordance 
with paragraph (g) of this section.
    (8) Mid-Atlantic coastal waters area.--(i) Area. The mid-Atlantic 
coastal waters area is defined in Sec. 229.2.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with anchored gillnets in mid-Atlantic coastal waters area 
unless that person's gear complies with at least one of the 
characteristics of the Gillnet Take Reduction Technology List in 
paragraph (d)(9) of this section. The Assistant Administrator may 
revise these requirements in accordance with paragraph (g) of this 
section.
    (9) Gillnet Take Reduction Technology List. The following gear 
characteristics comprise the Gillnet Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches in diameter or less.
    (ii) All buoys are attached to the buoy line with a weak link 
having a maximum breaking strength of up to 1100 lb. Weak links may 
include swivels, plastic weak links, rope of appropriate diameter, hog 
rings, rope stapled to a buoy stick, or other materials or devices 
approved in writing by the Assistant Administrator.
    (iii) Gear is anchored with the holding power of a 22 lb. danforth-
style anchor at each end.
    (iv) Gear is anchored with a 50 lb dead weight at each end.
    (v) Nets are attached to a lead line weighing 100 lb or more per 
300 feet.
    (vi) Weak links with a breaking strength of up to 1100 lb are 
installed in the float rope between net panels.
    (vii) All buoy lines are composed entirely of sinking line.
    (e) Restrictions applicable to mid-Atlantic driftnet gear.--(1) 
Gear marking requirements. No person may fish in mid-Atlantic coastal 
waters with drift gillnet gear unless that gear is marked by gear type 
and region according to the gear marking code specified under paragraph 
(b) of this section. From January 1, 1998, all buoy lines used in 
connection with driftnet gear in the mid-Atlantic must be marked within 
2 ft (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.
    (2) Restrictions. From January 1, 1998, during the winter/spring 
restricted period, 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. The winter/spring restricted period for 
this area is from December 1 through March 31 unless the Assistant 
Administrator revises that restricted period in accordance with 
paragraph (g) of this section.
    (f) Restrictions applicable to shark driftnet gear.--(1) Gear 
marking

[[Page 39188]]

requirements. No person may fish with drift gillnet gear in southeast 
waters unless that gear is marked according to the gear marking code 
specified under paragraph (b) of this section. From November 1, 1998, 
all buoy lines must be marked within 2 ft (0.6 m) of the top of the 
buoy line and midway along the length of the buoy line. From November 
1, 1999, each net panel must be marked along both the float line and 
the lead line at least once every 100 feet (30.8 m).
    (2) Management areas.--(i) SEUS restricted area. The southeast U.S. 
restricted area consists of the area from 32 deg.00' N lat. (near 
Savannah, GA) south to 27 deg.51' N lat. (near Sebastian Inlet, FL), 
extending from the shore eastward to 80 deg.00' W long., unless the 
Assistant Administrator changes that area in accordance with paragraph 
(g) of this section.
    (ii) SEUS observer area. The SEUS observer area consists of the 
SEUS restricted area and an additional area along the coast south to 
26 deg.46.5' N lat. (near West Palm Beach, FL) and extending from the 
shore eastward out to 80 deg.00' W long., unless the Assistant 
Administrator changes that area in accordance with paragraph (g) of 
this section.
    (3) Restrictions.-- (i) Closure. Except as provided under paragraph 
(f)(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 changes that closed period in 
accordance with paragraph (g) of this section.
    (ii) Observer requirement. No person may fish with driftnet gear in 
the SEUS observer area from November 1 through March 31 of the 
following year unless the operator of the vessel calls the SE Regional 
Office in St. Petersburg, FL, 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 board a vessel 
during a fishing trip at any time from November 1 through March 31 of 
the following year, no person may fish with driftnet gear aboard that 
vessel in the SEUS observer area unless an observer is on board that 
vessel during the trip.
    (iii) Special provision for strikenets. Fishing with strikenet gear 
is exempt from the restriction under paragraph (e)(3)(i) of this 
section if:
    (A) No nets are set at night or when visibility is less than 500 
yards (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.
    (D) If a right, humpback or fin whale moves within 3 nautical miles 
of the set gear, the gear is removed immediately from the water.
    (g) Other provisions. In addition to any other emergency authority 
under the Marine Mammal Protection Act, 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) Entanglements in critical habitat. If a serious injury or 
mortality of a right whale occurs in the Cape Cod Bay critical habitat 
from January 1 through May 15, in the Great South Channel restricted 
areas from April 1 through June 30, or in the SEUS restricted area from 
November 1 through March 31 as a result of an entanglement by gear 
types allowed to be used in those areas and times, the Assistant 
Administrator shall close that area to that gear type for the rest of 
that time period and for that same time period in each subsequent year, 
unless the Assistant Administrator revises the restricted period in 
accordance with paragraph (g)(2) of this section or unless other 
measures are implemented under paragraph (g)(2) of this section.
    (2) Other special measures. The Assistant Administrator may revise 
the requirements of this section through publication of a rule in the 
Federal Register if:
    (i) NMFS verifies that certain gear characteristics are both 
operationally effective and reduce serious injuries and mortalities of 
endangered whales;
    (ii) New gear technology is developed and determined to be 
appropriate;
    (iii) Revised breaking strengths are determined to be appropriate;
    (iv) New marking systems are developed and determined to be 
appropriate;
    (v) NMFS determines that right whales are remaining longer than 
expected in a closed area or have left earlier than expected;
    (vi) NMFS determines that the boundaries of a closed area are not 
appropriate;
    (vii) Gear testing operations are considered appropriate; or
    (viii) Similar situations occur.

[FR Doc. 97-18997 Filed 7-21-97; 8:45 am]
BILLING CODE 3510-22-P