[Federal Register Volume 64, Number 30 (Tuesday, February 16, 1999)]
[Rules and Regulations]
[Pages 7529-7556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3507]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-9044-09; I.D. 031997C]
RIN 0648-AI84


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

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

ACTION: Final rule.

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

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

ADDRESSES: Copies of progress reports on implementation of the Atlantic 
Large Whale Take Reduction Plan (ALWTRP) and of the Final Regulatory 
Flexibility Analysis for this rule may be obtained by writing Doug 
Beach, NMFS, 1 Blackburn Dr., Gloucester, MA 01930. Copies of the most 
recent Stock Assessment Reports for northern right whales, humpback 
whales, fin whales and minke whales may be obtained by writing to 
Gordon Waring, NMFS, 166 Water St., Woods Hole, MA 02543.

FOR FURTHER INFORMATION CONTACT: Kevin Chu, NMFS, Northeast Region, 
508-495-2367; Katherine Wang, NMFS, Southeast Region, 727-570-5312; or 
Greg Silber, NMFS, Office of Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) requires commercial 
fisheries to reduce the incidental mortality and serious injury of 
marine mammals to insignificant levels approaching a zero mortality and 
serious injury rate by April 30, 2001 (section 118(b)(1)).
    For some marine mammal stocks and some fisheries, section 118(f) 
requires NMFS to develop and implement take reduction plans to assist 
in recovery or to prevent depletion. The immediate goal of a take 
reduction plan is to reduce, within 6 months of its implementation, the 
mortality and serious injury of stocks incidentally taken in the course 
of U.S. commercial fishing operations to below the Potential Biological 
Removal (PBR) levels established for such stocks. The PBR level is 
defined in the MMPA as the maximum number of animals, not including 
natural mortalities, that may be removed from a marine mammal stock 
while allowing that stock to reach or maintain its optimum sustainable 
population. The long-term goal of a take reduction plan is to reduce, 
within 5 years of its implementation, the incidental mortality and 
serious injury of strategic marine mammals taken in the course of 
commercial fishing operations to insignificant levels approaching a 
zero mortality and serious injury rate, taking into account the 
economics of the fishery, the availability of existing technology, and 
existing state or regional fishery management plans.
    On July 22, 1997, NMFS published in the Federal Register an ALWTRP, 
or a ``Plan'', and interim final regulations implementing that Plan (62 
FR 39157). In this notice, NMFS reports on actions taken pursuant to 
the Plan, and issues a final rule for it. The final rule makes minor 
changes to the regulations in the interim final rule, but the general 
outline of the Plan remains the same.
    The Plan, in conjunction with other management actions, is intended 
to meet the goals stated here for right whales, humpback, and fin 
whales, all of which are listed as endangered species under the 
Endangered Species Act (ESA), and for minke whales. The Plan may be 
amended in the future to take account of new information or 
circumstances.
    The fisheries most affected by this plan are: anchored gillnet 
fisheries, including the New England sink gillnet fishery; the Gulf of 
Maine/U.S. Mid-Atlantic lobster trap/pot fishery; the U.S. mid-Atlantic 
coastal gillnet fisheries; and the Southeastern U.S. Atlantic shark 
gillnet fishery. The New England Multispecies sink gillnet fishery has 
an historical incidental bycatch of humpback, minke, and possibly fin 
whales. This gear type has been documented to entangle right whales in 
Canadian waters. Additionally, entanglements of right whales in 
unspecified gillnets have been recorded for U.S. waters, although U.S. 
sink gillnets have not been conclusively identified as having entangled 
right whales. The Gulf of Maine/U.S. mid-Atlantic lobster trap/pot 
fishery has an historical bycatch of right, humpback, fin, and minke 
whales. The mid-Atlantic coastal gillnet fisheries have an historical 
incidental bycatch of humpback whales. The Southeastern U.S. Atlantic 
gillnet fishery (for which sharks are generally the target species) is 
believed to be responsible for bycatch of at least one right whale.
    Some waters are exempt from this plan. The basic rule for the 
exempted water boundaries is that all waters landward of the first 
bridge over any embayment, harbor, or inlet will be exempted. Some bays 
that do not have bridges over them are also exempted, including Long 
Island Sound and Delaware Bay. South of the Virginia/

[[Page 7530]]

North Carolina border, all waters landward of the demarcation line of 
the International Regulations for Preventing Collisions at Sea, 1972 
(72 COLREGS line) are exempted. These are all areas where large whale 
occurrences are so rare that NMFS believes gear requirements will have 
no measurable effect on reducing entanglements. In a change from the 
interim final rule, the only exempted waters in the Gulf of Maine are 
those waters landward of the first bridge over any embayment. For a 
discussion of the rationale for this change, see ``Changes From the 
Interim Final Rule''. For a precise definition of the exempted areas, 
see the regulation section of this final rule.

Current Entanglement Rates and Population Status

    The information in this section is from the 1996 Stock Assessment 
Reports (Waring et al., 1997) compiled by NMFS, as required by the 
MMPA, from information collected for the 1998 Stock Assessment Reports, 
and from 1997 and 1998 entanglement reports compiled by NMFS. 
Additional information about the population biology and human-caused 
sources of mortalities and serious injuries is included in the 1996 
Stock Assessment Reports, which are available from NMFS (see 
ADDRESSES). The 1998 Stock Assessment Reports are currently under 
review.
    Some entanglements of large whales were observed by the NMFS sea 
sampling program; however, most records come from various sources such 
as small vessel operators. Limitations on the use of the available 
entanglement data include (1) not all observed events are reported; (2) 
most reports are opportunistic rather than arriving from systematic 
data collection, and, thus, conclusions cannot be made regarding actual 
entanglement levels; (3) identification of the gear type or of the 
fishery involved is often problematic; and (4) identification of the 
location where the entanglement first occurred is often difficult since 
the first observation usually occurs after the animal has left the 
original location.

North Atlantic Right Whales

    The northern right whale is the rarest of all large cetaceans and 
one of the most endangered species in the world. The western North 
Atlantic population is estimated at 295 animals (Knowlton et al., 1994) 
and is unlikely to be significantly higher. The best published estimate 
of the population growth rate is 2.5 percent per year (Knowlton et al., 
1994). However, many uncertainties exist in this estimate, and further 
assessment is required, notably in light of the known high levels of 
anthropogenic mortality in this species. The PBR level for this 
population is 0.4 incidents of serious injury or mortality per year.
    Approximately one-third of all known right whale mortality is 
caused by human activities (Kraus, 1990). Further, the small population 
size and low annual reproductive rate suggest that human sources of 
mortality may have a greater effect on population growth rates of the 
right whale than on those of other whales. The principal factors 
retarding growth of the population are believed to be ship strikes and 
entanglement in fishing gear.
    For the period 1991 through 1996, the total human-caused mortality 
and serious injury to right whales is estimated as 2.3 incidents per 
year. Of this figure, 1.0 incident per year is attributed to 
entanglements and 1.3 to ship strikes. Note that some injuries or 
mortalities may go undetected, particularly those that occur offshore. 
Therefore, the estimates above should be considered minimum estimates.
    In June 1997 (prior to the publication of the interim final rule), 
there was an entanglement in U.S. offshore lobster gear off Chatham, 
MA. This whale was disentangled without evidence of compromising injury 
and is not likely to be classified as a ``serious injury'' when 
analysis of the event is complete. There was another entanglement also 
reported in U.S. waters in 1997, in which a right whale was seen 
carrying a line from unknown gear. This whale was later seen by 
researchers from the New England Aquarium, who believe the line may 
have been shed during the summer.
    Four entangled right whales were sighted in the Bay of Fundy in 
1997, after the interim final rule was published. At least two of these 
entanglements are likely to be classified as serious injuries or 
mortalities when the reports are reviewed. None of these entanglements 
can be positively attributed to U.S. fisheries. No entangled right 
whales were seen in U.S. waters during the first 6 months of the 
implementation of the Plan (from July 22, 1997, to January 22, 1998). 
In 1998, there were extensive aerial surveys of right whale critical 
habitats in the United States; no entangled right whales were seen 
during these surveys.
    In 1998, four right whales were reported entangled. On July 12, two 
right whales were trapped in a weir near Grand Manan Island, Canada. 
Both whales were released 2 days later with apparently minor scratches.
    One right whale was seen entangled in rope of unidentified origin 
on August 15 near Mingan Island in the Gulf of St. Lawrence. The whale 
was too active to approach safely to disentangle it. It appeared to 
free itself of most of the gear but may still be trailing some line.
    One right whale was entangled twice (and actually disentangled 
three times) in Cape Cod Bay. The whale had been first seen entangled 
in 1997 in the Bay of Fundy. On July 24, 1998, the whale was seen near 
Dennis, MA (Cape Cod Bay). Most, but not all, of the gear it had been 
carrying from the 1997 entanglement was removed by the disentanglement 
team on that date. (NMFS has not been able to identify the type of gear 
responsible for this 1997 entanglement. However, the gear is still 
being studied.) The same whale was seen again near Provincetown, MA, on 
September 12 with a lobster buoy line through its mouth. This line was 
cut but not completely removed at that time. The right whale was seen 
again 2 days later (September 14) near Barnstable, MA. In the interim, 
it had picked up additional lobster gear, which was entirely removed. 
At last report, the whale was swimming freely but still had a thin line 
in its mouth from the entanglement in 1997.
    A final evaluation as to whether these entanglements will be 
considered serious injuries has not yet been made. The agency is in the 
process of developing guidelines to standardize this kind of 
evaluation.

Humpback Whales

    The best estimate of abundance for North Atlantic humpback whales 
is 10,600 (Coefficient of Variation (CV) = 0.067, Smith et al., 1998). 
The minimum population estimate for this stock is 10,019 (CV = 0.067) 
(Waring et al., in prep). Within this population, the humpback whales 
in the Gulf of Maine constitute a distinct, relatively small, feeding 
sub-population. However, it is not genetically distinct from other sub-
populations in the western North Atlantic, which are all treated as a 
single stock for the purposes of the Plan and the estimation of PBR. 
For purposes of the current stock assessment, the maximum net 
productivity rate for western North Atlantic humpback whales is assumed 
to be 0.065 (Barlow and Clapham, 1997). The PBR level for this stock is 
32.6 humpback whales per year.
    For the period 1991 through 1996, the total estimated human-caused 
mortality and serious injury to humpback whales in U.S. waters is 
estimated as 5.8 per year. This is derived from three components: (1) 
Entanglements that have been reported by NMFS observers, (2) additional 
fishery interaction records, and (3) vessel collision records.

[[Page 7531]]

Fin Whales

    The best available estimate of abundance for the western North 
Atlantic fin whale is 2,700 (CV = 0.59), which is considered 
conservative (Waring et al., in prep). The minimum population estimate 
is 1,704 (CV = 0.59) (ibid.). For purposes of the current stock 
assessment, the maximum net productivity rate for fin whales is assumed 
to be 0.04. The PBR for this stock is 3.4.
    Entanglements of fin whales are rarely documented. Because of the 
paucity of stranded animals or other records, NMFS has not calculated 
an average entanglement rate, although it believes that serious 
injuries or mortalities due to entanglements of fin whales occur at a 
rate below 10 percent of PBR. A review of 26 records of stranded or 
floating (dead or injured) fin whales for the period of 1992 through 
1996 showed that three had formerly been entangled in fishing gear. Two 
of these had net or rope marks on the body, and one had line through 
the mouth and around the tail.

Minke Whales

    Minke whales off the eastern coast of the United States are 
considered to be part of the Canadian east coast population, which 
inhabits the area from the eastern half of Davis Strait south to the 
Gulf of Mexico. The best estimate of the population is 2,760 (CV = 
0.32) (Waring et al., in prep.), which is considered conservative. The 
minimum population estimate for Canadian east coast minke whales is 
2,145 (CV = 0.32) (ibid.). The current and maximum net productivity 
rates are not known, but the maximum rate is assumed to be 0.04. The 
PBR for this stock of minke whales is 17.
    Accurate estimates of human-caused mortality are not available for 
this species because it is likely that many entanglements, injuries, 
and mortalities go unobserved and/or unrecorded. The total annual 
estimated average fishery-related mortality and serious injury to this 
stock in fisheries that have been observed by NMFS is 0.8 minke whales. 
However, the total number of entanglements from all fisheries is 
unknown. The figure is believed to be less than PBR but greater than 10 
percent of PBR. Entanglements are known to occur in Canadian waters as 
well.

Atlantic Large Whale Take Reduction Plan

    As stated earlier and as required by the MMPA, the Plan has two 
goals. The short-term goal is to reduce serious injuries and 
mortalities of right whales in U.S. commercial fisheries to below 0.4 
animals per year by January 1998. The long-term goal is to reduce by 
April 30, 2001, entanglement-related serious injuries and mortalities 
of right whales, humpback whales, fin whales, and minke whales to 
insignificant levels approaching a zero mortality and serious injury 
rate, taking into account the economics of the fisheries, the 
availability of existing technology, and existing state and regional 
fishery management plans.
    To reach the short-term goal, the Plan was expected to achieve the 
necessary take reductions within 6 months through (1) establishing 
closures of critical habitats to some gear types during times when 
right whales are usually present; (2) restricting the way strike nets 
are set in the southeastern U.S. gillnet fishery to minimize the risk 
of entanglement and requiring observers on shark gillnet vessels 
operating adjacent to the southeast U.S. critical habitat; (3) 
requiring that all lobster and sink gillnet gear be set in such a way 
as to prevent line from floating at the surface; (4) requiring all 
lobster and anchored gillnet gear to have at least some additional 
characteristics that may reduce the risks of entanglements, (5) 
requiring that drift gillnets in the mid-Atlantic be either tended or 
stored on board at night; (6) improving the voluntary network of 
persons trained to assist in disentangling right whales; and (7) 
prohibiting storage of inactive gear in the ocean.
    Although NMFS is not aware of any right whales entangled in U.S. 
fishing gear during the first 6 months of the implementation of the 
Plan, it is unable to determine whether the short-term goal of the Plan 
was met. Because right whale entanglements are rare and because there 
is no way of knowing that all entanglements were detected, it is 
impossible to demonstrate conclusively that the goals of the MMPA were 
achieved. At the same time, NMFS cannot conclude that PBR was exceeded. 
The 1997 entanglements that might be classified as serious injuries or 
mortalities were first observed in Canadian waters. The two known 
entanglements that occurred in U.S. waters during the first 6 months of 
the Plan did not appear to be serious. It is clear, however, that 
entanglement in fishing gear remains a danger to individual right 
whales and that continued reductions in the risk of such entanglements 
would be prudent, given the endangered status of the population.
    The steps in the implementation of the Plan designed to achieve the 
long-term goal include (1) improving public involvement in take 
reduction efforts, including conducting outreach and educational 
workshops for fishermen; (2) instituting ``Take Reduction Technology 
Lists'' from which fishermen must choose gear characteristics that are 
intended to decrease the risks of entanglement; (3) facilitating 
research and development of fishing gear that will reduce the risk of 
entanglement; (4) continuing to improve the disentanglement effort, 
including encouraging more cooperation from fishermen; (5) implementing 
a gear marking program, (6) developing contingency plans in cooperation 
with states for when right whales are present at unexpected times and 
places; (7) working with Canada to decrease entanglements in its 
waters; (8) improving monitoring of the right whale population 
distribution and biology; (9) conducting aerial surveys to monitor 
whale distribution, fishing effort and shipping traffic, (10) 
maintaining a network to alert maritime users about right whale 
distribution; and (11) establishing the framework of an abbreviated 
rule-making process to allow NMFS to change the requirements of the 
plan through notification in the Federal Register, thereby improving 
the responsiveness of NMFS.
    NMFS intends to make active use of the Atlantic Large Whale Take 
Reduction Team (TRT), an advisory group that includes fishermen, 
scientists, and representatives of environmental groups and state 
governments, to review progress on reaching the goals of the ALWTRP and 
to make recommendations on how to continue to decrease serious injuries 
and mortalities due to entanglements. NMFS also intends to continue to 
seek technical advice on matters pertaining to gear development for its 
Gear Advisory Group (GAG), which is composed of persons with direct 
knowledge of fishing gear or disentangling large whales. NMFS convened 
the GAG on October 7-8, 1998, and will convene the TRT on February 8-
10, 1999. NMFS may modify the plan if it receives a recommendation from 
the teams to do so.

Report of First Year Activities

    During the first year of the Plan, NMFS raised the level of funding 
for research and development of fishing gear that reduces the risks of 
entanglement, expanded its disentanglement efforts, increased efforts 
to raise awareness of marine mammal entanglement problems, conducted or 
contributed funds to conduct aerial surveys to monitor the distribution 
of right whales, to collect

[[Page 7532]]

photographs for individual identification, and to alert ship operators 
of the locations of right whales, and increased funding for basic 
research on right whale population and conservation biology.
    The goal of the gear research is to develop new fishing gear or 
methods that minimize the risk of entanglements by large whales, either 
by reducing the chances that a whale will encounter the gear or by 
reducing the likelihood that gear, when encountered, will entangle the 
animal. Since the publication of the Plan in 1997, research has been 
conducted in the following areas: (1) Design, development, testing, and 
manufacture of inexpensive weak links, (2) remotely operated vehicle 
observations of the configuration of gillnets and lobster gear, (3) 
estimation of the tractive (pulling) force of right whales, (4) land 
testing of gillnet modifications, (5) baleen tests with various lines, 
knots, and splices (to understand how a line gets caught in baleen), 
and (6) design and fabrication of underwater and dry load cell systems 
for measuring the hauling and towing loads of fishing gear and the 
tractive force of animals.
    The current disentanglement effort consists of a primary team which 
has field station support in the northern Gulf of Maine/Bay of Fundy, 
central Gulf of Maine, southern Gulf of Maine, and Georgia/Florida. The 
northern Gulf of Maine/Bay of Fundy field station is operational only 
when biologists are conducting seasonal right whale research. The U.S. 
Coast Guard (USCG) provides critical support in monitoring initial 
entanglement reports and transporting persons experienced in 
disentangling whales. Although the Disentanglement Team currently 
attempts to respond to all legitimate entanglement reports, the 
priority for response is for any immediately life-threatening event of 
endangered right and humpback whales. NMFS has also created a permanent 
contact point in Maine to supplement the existing infrastructure 
operating out of the Center for Coastal Studies in Provincetown, 
Massachusetts. Plans are also underway to establish a disentanglement 
team in the mid-Atlantic region.
    The success of the Plan depends on the cooperation of fishermen in 
assisting disentanglement efforts as well as in providing ideas for 
gear research. During the first year of the Plan, NMFS hired a person 
in Maine to work directly with the fishermen on these matters. NMFS has 
held 21 meetings in Maine to date, with over 300 fishermen in 
attendance, of which about 200 have indicated they wish to participate 
in additional training to further assist in any disentanglement effort 
in their area. From this series of meetings, a network of qualified 
responders will be established to coordinate reports, carry out 
monitoring, and assist the existing Team in response to entangled 
whales along the coast of Maine. NMFS also met with fishermen directly 
at fishermen's forums and contracted Sea Grant to discuss proper 
reporting and operational procedures regarding entangled whales and to 
gather ideas for appropriate gear modifications. Continued outreach 
activities in Maine, southern New England, the southeast U.S. and in 
the Mid-Atlantic are planned.
    Existing partnerships with the USCG and the Massachusetts Division 
of Marine Fisheries and Massachusetts Environmental Trust have resulted 
in significant additional resources for carrying out the tasks outlined 
in the Plan. Similar partnerships with the 5th, 7th, and 8th U.S. Coast 
Guard (USCG) districts are currently being finalized. The USCG 
conducted aerial surveys for large whales, assisted in disentanglement 
response support, and provided funds for additional aerial survey 
contracts carried out by NMFS. The State of Massachusetts funded aerial 
survey coverage of Cape Cod Bay, as well as a habitat characterization 
study of the Bay in 1998. Right whale sightings information from all 
sources were provided to the northeast right whale alert system, 
designed to inform mariners of the presence of right whales in critical 
habitats. The sighting data were coordinated, verified, and processed 
by NMFS. Verified sightings for each survey day are disseminated by an 
automated fax system immediately after processing, and made available 
to all marine resource users through various media. The coordinates of 
the right whale sightings were broadcast for 24 hours by USCG via 
Broadcast Notice to Mariners and NAVTEX, NOAA Weather Radio, and Army 
Corps of Engineers Traffic Controllers at Cape Cod Canal to both target 
shipping traffic as well as other marine resource users. Maps with 
right whale sightings boxes are also posted on Massachusetts and NMFS 
web pages and linked to other sites such as WHALENET. An NMFS Inquiry 
Line at the Northeast Regional Office provides right whale sighting 
faxes on demand to all interested callers.
    During the first year of the Plan, NMFS drafted a memorandum of 
Agreement (MOA) with USCG districts 5, 7, and 8 to formalize 
cooperation in protecting marine mammals and endangered species, 
especially in implementing a disentanglement network. (This MOA is 
currently undergoing final review within the Department of Commerce.) 
An MOA was also signed with the Navy, USCG, and the Army Corps of 
Engineers to formalize cooperation in measures to protect northern 
right whales in the southeast United States. This has provided a 
mechanism for funding the southeast U.S. aerial surveys of right whale 
critical habitat and the associated right whale alert system. NMFS has 
continued to provide administrative support for the right whale alert 
system. It has also conducted aerial surveys to the east, north, and 
south of critical habitat in order to determine whether there may be a 
need to extend current critical habitat boundaries.
    Aerial surveys are also being conducted in the U.S. coastal waters 
of the mid-Atlantic states to document abundance and distribution of 
humpback whales in relation to vessel traffic and fishing effort.
    Outreach activities are an integral part of all components of the 
ALWTRP. NMFS contracted the Sea Grant offices at the University of 
Maine and University of Rhode Island to set up an outreach program in 
the New England and Mid-Atlantic areas. Sea Grant organized meetings, 
workshops, and seminars at key fishermen's forums held from Fall 1997 
through Spring 1998, covering the area from North Carolina to Rhode 
Island. Sea Grant also prepared outreach handout materials and videos 
for use at these and other forums and for the local meetings set up in 
the Northeast. A letter was sent to all state and Federal lobster and 
gillnet fishermen in the Northeast providing information about right 
whales, the entanglement problem, and fishermen's responsibilities 
under the ALWTRP. As mentioned above, NMFS also hired a Maine Plan 
Coordinator to work closely with the Maine Lobster Zone Council system 
to carry out outreach education and gear research collaboration.
    In 1998, NMFS also met with shark gillnetters to develop awareness 
of right whales and their current plight. This meeting was designed to 
explain threats to right whales in the southeast United States and to 
discuss the precautions necessary around them and what additional 
measures the fishery might take to decrease the risk of interactions. 
In addition to the above mentioned meeting, letters were sent to all 
known shark gillnetters explaining the ALWTRP regulations. The letters 
explained the need to contact NMFS to arrange for observer coverage 
during the right whale calving season. During the

[[Page 7533]]

year, this observer program was established.
    The Northeast Fisheries Science Center has increased its Protected 
Species Branch staff to include a large whale research coordinator. Key 
research on large whales conducted or funded by NMFS include (1) 
maintaining the right and humpback whale photo ID catalogues where 
individual identification of animals from photographs taken throughout 
the western north Atlantic are processed; (2) analyzing data collected 
from the right whale photo-identification catalogue for population 
assessment; (3) expanding right whale genetics studies to determine the 
matriarchal lines that make up the population; (4) supporting right 
whale stranding response to maximize the information collected from 
each carcass; (5) conducting directed right whale photo-identification 
surveys in the Great South Channel; (6) assessing capabilities to 
locate whales acoustically; (7) evaluating the status of the North 
Atlantic humpback whale, and (8) surveying potential offshore summer 
habitats for right whales.

Changes From the Interim Final Rule

    1. Definition of ``Lobster Trap.'' The definition of the term 
``lobster trap'' in the interim final rule was not as precise as it 
should have been. Broadly interpreted, it could have been construed as 
applying to gillnets and to bottom trawls that can catch lobster as 
well as to traps. These gear types were not intended to be covered by 
this term. Therefore, in this final rule, NMFS changes the definition 
of ``lobster trap'' to be: ``any trap, structure or other enclosure 
that is placed on the ocean bottom and is designed to or is capable of 
catching lobsters.'' The intent of this definition is to include traps 
and pots into which lobsters may crawl and be caught by virtue of their 
inability to find their way out, and not to include mobile gear or 
devices that catch lobsters through entanglement. The definition 
includes black sea bass traps and scup traps. The terminology ``lobster 
trap'' is used in this final rule, instead of ``lobster pot'' (used in 
the interim final rule) solely to make the terminology consistent with 
fishery management regulations. The Plan applies to the same gear, 
whether called ``traps'' or ``pots.''
    2. Definition of ``Gillnet''. The definition of ``gillnet'' in the 
interim final rule could cause confusion as to which nets were included 
in the regulations. Therefore, in this final rule, NMFS is amending the 
definition to be as follows: ``fishing gear consisting of a wall of 
webbing (meshes) or nets, designed or configured so that the webbing 
(meshes) or nets are placed in the water column, usually held 
approximately vertically, and are designed to capture fish by 
entanglement, gilling, or wedging. The term `gillnet' includes gillnets 
of all types, including but not limited to, sink gillnets, other 
anchored gillnets (e.g. stab and set nets), and drift gillnets. 
Gillnets may or may not be attached to a vessel.'' The term is intended 
to include gillnets with or without tie-downs.
    3. Elimination of exempted waters in the Gulf of Maine. The State 
of Maine and groups representing Maine fishermen did not agree with the 
lines delineating the exempted waters in the Gulf of Maine. These 
groups commented that the lines chosen by NMFS were confusing and 
difficult to enforce. On any given day, most lobstermen in Maine fish 
on both sides of the exemption lines established in the interim final 
rule. Because most fishermen in Maine waters will need to comply with 
the ALWTRP regulations for some of their gear (that are set in waters 
not exempted by the interim final rule), NMFS eliminates the exempted 
waters in the Gulf of Maine until such time as the TRT can advise NMFS 
on the most appropriate boundaries for exempted waters in that area. 
Note, however, that the gear marking provisions that would have applied 
in all non-exempted waters under the interim final rule have also been 
changed and will not apply in most coastal waters in the Gulf of Maine.
    4. Addition of exempted waters in Rhode Island. The State of Rhode 
Island noted that the interim final rule failed to exempt some coastal 
ponds from its regulations. In this final rule, waters are intended to 
include the following rivers and coastal ponds where right whales have 
never been seen: Winnapaug Pond, Green Hill Pond, Potter Pond, and the 
Sakonnet River.
    5. Gear marking requirements. In the interim final rule, the gear 
marking system required the application of two color codes on the buoy 
lines. In this final rule, the method of applying the marks has not 
been changed from the interim final rule. However, gear marking is no 
longer required in most areas.
    The gear marking requirements of the interim final rule were 
criticized by many. Some persons felt they were not specific enough to 
give clear information about where entanglement problems occur. Others 
were concerned that if gear was lost in a storm or towed by a boat to 
another region and then entangled whales, it might give a false 
impression of where the entanglement problem occurred. Some questioned 
whether gear marking would provide any useful information, and others 
wondered whether the method of marking would work.
    In this final rule, NMFS no longer requires gear marking of lobster 
and gillnet gear in most affected waters. Instead, it requires these 
types of gear to be marked only in right whale critical habitat, in the 
southeast observer area and on Stellwagen Bank and Jeffreys Ledge in 
the Gulf of Maine. These are the areas where the risk of entanglement 
is highest. If entanglements occur in the critical habitat areas during 
times of high right whale use, they are subject to closure. The 
Jeffreys Ledge/Stellwagen Bank area is an area used year-round by large 
whales, and there have been calls for more action to lower 
entanglements in that area. The marking scheme in the final rule could 
give NMFS relatively precise information about entanglements that occur 
in these key areas without requiring an extremely complex system that 
would have to be devised to identify a large number of areas. It also 
allows NMFS and the TRT to assess the value of gear marking and to 
refine the technique without burdening most of the industry. If gear 
marking proves workable and useful, the system could be expanded after 
consultation with the Gear Advisory Group and the Take Reduction Team.
    In a further change from the interim final rule, gillnetters in the 
southeast U.S. need only mark their lines every 100 yards (91.4 m), not 
every 100 feet (30.5 m), when this requirement comes into effect in 
November 1999. The purpose of this change is to ease the marking burden 
until it is known whether the system works as expected.
    This gear marking requirement constitutes a collection of 
information under the Paperwork Reduction Act. The Office of Management 
and Budget (OMB) has given its approval to this collection of 
information (OMB No. 0648-0364).
    6. Gear requirements for lobster fishers in Cape Cod Bay critical 
habitat. Several persons commented that the Federal government's 
regulations for lobster gear in Cape Cod Bay critical habitat from 
January 1 to May 15 were different from the regulations of the 
Commonwealth of Massachusetts for the same area. NMFS believes that the 
Commonwealth, working directly with the affected fishermen, has 
developed a workable plan that has the allegiance of the fishermen to 
lower the risk of entanglement. Therefore, in this final

[[Page 7534]]

rule, NMFS adopts the current version of the regulations established by 
the Commonwealth for lobster gear set in this area and time. 
Specifically, during the period from January 1 to May 15, weak links 
with a breaking strength of no more than 500 lb (226.7 kg) must be 
installed in all buoy lines, and it is permissible to set traps in 
``doubles'', in which only two traps are joined together by a ground 
line. Doubles can have only one buoy line. In the interim final rule, 
the NMFS' regulations for Cape Cod Bay from Jan. 1 to May 15 called for 
a breaking strength of 1100 lb (498.8 kg). The lower breaking strength 
required by this final rule will reduce the risk that an entanglement 
becomes serious. Fishing conditions in Cape Cod Bay appear to be such 
that a 500 lb (226.7 kg). breaking strength does not pose a difficulty 
for the industry. Allowing the use of doubles may reduce the number of 
buoy lines in Cape Cod Bay. At least some fishermen have been using 
four trap trawls (which may have two buoy lines) where they would 
prefer to use a double (with one buoy line).
    7. Elimination of anchoring options from the gillnet take reduction 
technology list. The Gillnet Take Reduction Technology List in the 
interim final rule allowed gillnets to hold down the lead line with 
anchors, weights, or heavy rope as a bycatch reduction option. Allowing 
the methods that increased the holding power of the lead line as 
separate options without also requiring weak links to be installed in 
the net panels has been determined to be ineffective. Without the weak 
links, the extra weight could make it harder for the whale to carry a 
net rather than help it to break free of the net as intended. 
Therefore, in this final rule, NMFS eliminates from the Gillnet Take 
Reduction Technology List the options for anchoring the lead line with 
22-lb (10 kg) danforth-style anchors, 50 lb (22.7 kg) dead weights or 
lead lines weighing 100 lb (45.4 kg) or more per 300 ft (92.4 m).
    NMFS retains on the Gillnet Take Reduction Technology List the 
option of putting weak links in the net panels. Although weak links 
will only fail if the resistance to movement by the net is greater than 
the breaking strength of the link (which was the original intent of the 
anchoring requirements), NMFS notes that many gillnets are set with 22-
lb (10 kg) danforth-style anchors or weights with similar holding 
capacity, whether or not such characteristics are on the Gillnet Take 
Reduction Technology List.
    The genesis of the anchoring options was a discussion within the 
TRT of a suite of gear modifications consisting of weak links in the 
nets and weighted lead lines. These discussions were based on a more 
complex suite of gillnet modifications used in California with the aim 
of reducing marine mammal entanglements. The TRT did not have before it 
the full suite of modifications required by California. NMFS will 
provide this to the TRT and to the GAG and will ask those groups to 
consider the likely effectiveness of the California modifications and 
the feasibility of applying those modifications to the New England 
gillnet fishery. NMFS is also funding research on the forces that 
gillnets can withstand under a range of conditions, including those 
that might occur if a whale becomes entangled in the net. The GAG and 
the TRT will also be asked to review the results of these tests.
    8. The definition of ``anchored gillnet'' is modified slightly to 
make clear that ``stab nets'' are included in this definition. 
Likewise, the definition of ``sink gillnet'' is amended to clarify that 
the regulations applying to sink gillnets are intended to apply to 
``stab nets''. Similarly, the definition of ``gillnet'' has been 
modified to clarify that what is termed ``meshes'' in some places is 
included in the definition. The definition of ``Strikenet or to fish 
with strikenet gear'' is amended slightly to make clear that strikenets 
are considered a category of gillnets for the purposes of this rule and 
that persons fishing with strikenets must comply with the call-in 
requirement to fish anywhere within the SEUS observer area.
    9. Several definitions were modified slightly to correct for 
grammatical errors or to add clarity, including: (1) ``driftnet, drift 
gillnet, or drift entanglement gear'', (2) ``tended gear or tend'', and 
(3) ``weak link.''
    10. New definitions for ``shark gillnetting'' and ``to strikenet 
for sharks'' are included to clarify the fisheries affected by this 
rule. These new definitions do not change the fisheries intended to be 
covered by the Plan.

Fishery-Specific Measures of the Plan

American Lobster Trap/Pot Fisheries

    Except for gear set in exempted waters, all lobster trap gear must 
be set in such a way as to avoid having line floating at the surface at 
any time. Floating line is allowed between two buoys on the same buoy 
line and between a buoy and a high flyer.
    Throughout the year, lobster trap buoy lines in the Great South 
Channel must be marked with red and yellow marks. Lobster trap gear is 
prohibited from the Great South Channel critical habitat area from 
April 1 through June 30, until the Assistant Administrator for 
Fisheries (AA) determines that alternative fishing practices or gear 
modifications have been developed that reduce the risk of serious 
injury or mortality to whales to acceptable levels. From July 1 through 
March 31, lobster trap gear set in the Great South Channel critical 
habitat must have at least two characteristics from the Take Reduction 
Technology List that follows. Note that, although portions of the Great 
South Channel critical habitat would be considered offshore, NMFS 
believes that the weaker maximum breaking strengths allowed for inshore 
gear are more appropriate in the critical habitat, since right whales 
may return to the area when not expected. Therefore, the Great South 
Channel critical habitat is not considered ``offshore'' for the 
purposes of the Plan. Lobster trap gear set in this area must comply 
with the inshore gear characteristics.
    From January 1 through May 15, lobster trap gear may not be set in 
the Cape Cod Bay critical habitat unless it meets certain criteria. All 
lobster trap gear set during that time must have all four of the 
following characteristics: (1) All buoys must be attached to the buoy 
line with a weak link with a maximum breaking strength of up to 500 lb 
(226.7 kg). (2) All traps must be set in either ``doubles'' (two trap 
trawls with a single buoy line) or trawls of four or more traps. Single 
traps and trawls with exactly three traps are not allowed. (3) All buoy 
lines must be made of sinking line, except for the bottom third of the 
line, which may be floating line. (4) All ground lines between traps 
must be made of sinking line. These measures are intended to conform to 
the current requirements set by the State of Massachusetts for its 
portion of the critical habitat during that period. From May 16 to 
December 31, lobster trap gear set in the Federal portion of the Cape 
Cod Bay critical habitat must have at least two characteristics from 
the Take Reduction Technology List. Throughout the year, the buoy lines 
of lobster trap gear set in the Cape Cod Bay critical habitat must be 
marked with red and orange marks.
    The Stellwagen Bank/Jeffreys Ledge (SB/JL) area is defined as all 
Federal waters in the Gulf of Maine that lie to the south of the 
43 deg.15' N lat. line and west of the 70 deg. W long. line, except 
right whale critical habitat. In this area, lobster trap gear must 
always have at least two characteristics from the Lobster Take 
Reduction Technology list. In addition, the buoy lines of lobster trap 
gear set in this area must be marked with red and black marks. 
Fishermen

[[Page 7535]]

should be aware that humpback and/or right whales are present in this 
area most months of the year. If the gear modifications are not 
sufficient to reduce serious injury and mortality to right and humpback 
whales to achieve the 5-year zero mortality and serious injury rate 
goal, additional restrictions or closures in some or all of this area 
may be necessary. A decision to close any portion of this area would be 
made in consultation with the TRT, and after public comment.
    In all other areas, lobster trap gear must be set with at least one 
characteristic from the Lobster Take Reduction Technology list. This 
requirement applies year-round in the inshore and offshore lobster 
fishery north of 41 deg.30' N lat. and from December 1 through March 31 
in the inshore and offshore lobster fishery south of 41 deg.30' N lat. 
Some of the gear characteristics are applicable only to offshore 
lobster fishing because conditions offshore require heavier gear. 
However, fishermen using offshore gear are encouraged to use the 
inshore standards. No gear marking is required in these other areas.
    Figure 1 shows the boundaries of the areas where the requirements 
for the lobster fishery apply.
    The Lobster Take Reduction Technology List is as follows:
    1. All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
    2. All buoys are attached to the buoy line with a weak link having 
a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may 
include swivels, plastic weak links, rope of appropriate breaking 
strength, hog rings, or rope stapled to a buoy stick.
    3. For lobster traps set in offshore lobster areas only, all buoys 
are attached to the buoy line with a weak link having a maximum 
breaking strength of up to 3780 lb (1714.3 kg).
    4. For traps set in offshore lobster areas only, all buoys are 
attached to the buoy line by a section of rope no more than \3/4\ the 
diameter of the buoy line.

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[[Page 7537]]

    5. All buoy lines are composed entirely of sinking line.
    6. All ground lines are made of sinking line.

Anchored Gillnet Fisheries

    All sink gillnet gear and other anchored gillnet gear must be set 
in such a way as to avoid having line floating at the surface at any 
time. Floating line is allowed between two buoys on the same buoy line 
and between a buoy and a high flyer attached to the same buoy line.
    Sink gillnet gear is prohibited from most of the Great South 
Channel critical habitat area from April 1 through June 30, until the 
AA determines that alternative fishing practices or gear modifications 
have been developed that reduce the risk of serious injury or mortality 
to whales to acceptable levels. Sink gillnets may be used year-round in 
the ``sliver area'' and from July 1 to March 31 in the entire Great 
South Channel critical habitat, provided that such gear has at least 
two characteristics from the Gillnet Take Reduction Technology list. 
Throughout the year, gillnet buoy lines in the Great South Channel must 
be marked with yellow and green marks.
    From January 1 to May 15, the Cape Cod Bay critical habitat is 
closed to sink gillnet gear. From May 16 to December 31, gillnet gear 
set in the Cape Cod Bay critical habitat must have at least two 
characteristics from the Gillnet Take Reduction Technology List. 
Throughout the year, the buoy lines of gillnet gear set in the Cape Cod 
Bay critical habitat must be marked with green and orange marks.
    Gillnet gear in the SB/JL area (as defined in this notice under 
``Fishery-specific Measures of the Plan, American Lobster Trap/Pot 
Fisheries'') must always have at least two characteristics from the 
Gillnet Take Reduction Technology List. In addition, the buoy lines of 
gillnet gear set in this area must be marked with green and black 
marks. Fishermen should be aware that humpback and/or right whales are 
present in the SB/JL area most months of the year. If the gear 
modifications are not sufficient to reduce serious injury or mortality 
to right and humpback whales to achieve the 6-month PBR goal or the 5-
year zero mortality and serious injury rate goal, additional 
restrictions or closures of certain portions of the SB/JL area may be 
necessary.
    In all other ``northeast waters'' (defined as Federal and state 
waters east of 72 deg.30' W long.), gillnet gear must be set with at 
least one characteristic from the Gillnet Take Reduction Technology 
List at all times. Mid-Atlantic gillnets (gillnets set west of 
72 deg.30' W long. and north of 33 deg.51' N lat.) must have at least 
one characteristic from this list from December 1 to March 31. No gear 
marking is required in either area.
    Figure 2 shows the boundaries of the areas where the requirements 
for the sink gillnet fishery apply.
    The Gillnet Take Reduction Technology List is as follows:
    1. All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.

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[[Page 7538]]

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[[Page 7539]]

    2. All buoys are attached to the buoy line with a weak link having 
a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may 
include swivels, plastic weak links, rope of appropriate breaking 
strength, hog rings, or rope stapled to a buoy stick.
    3. Weak links with a breaking strength of up to 1100 lb (498.8 kg) 
are installed in the float rope between net panels.
    4. All buoy lines are composed entirely of sinking line.

Mid-Atlantic Coastal Gillnet Fishery--Drift Gillnets

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

Southeast U.S. Shark Gillnet Fishery

    The area from 27 deg.51' N lat. (near Sebastian Inlet, FL) to 
32 deg.00' N lat. (near Savannah, GA) extending from the shore outward 
to 80 deg. W long. is closed to shark gillnet fishing, except for 
strikenetting, each year from November 15 to March 31. Strikenetting is 
permitted under certain conditions set forth in the rule. In addition, 
observer coverage is required for the use of gillnets in the area from 
West Palm Beach (26 deg.46.5' N lat.) to Sebastian Inlet (27 deg.51' N 
lat.) from November 15 through March 31 and for the use of strikenets 
in the area between West Palm Beach, FL, and Savannah, GA, for the same 
time period. Vessel operators intending to use these gear types in 
these areas must notify NMFS at least 48 hours in advance of departure 
to arrange for observer coverage. It should be noted that state waters 
in this area presently ban gillnetting. In addition, shark gillnets, 
including strikenets, must be marked with green and blue marks to 
identify the fishery and region in which the gear is fished.
    Figure 3 shows the boundaries of the areas where the requirements 
for the shark gillnet fishery apply.

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[[Page 7541]]

Other Entanglement Reduction Measures Not Specified in This Plan:

    Other measures under the Magnuson-Stevens Fishery Conservation and 
Management Act that are expected to decrease the risk of entanglement 
of whales in sink gillnets are either currently in effect or under 
consideration. Reductions in allowable days at sea and seasonal or 
year-round area closures to protect groundfish will reduce the risk of 
entangling right whales. A significant portion of the SB/JL restricted 
area is closed year-round to all gillnets (and other gear capable of 
catching groundfish). In addition, currently there are 1-month closures 
to gillnet and other groundfish fish gear in March, April, May, and 
June along the coast of the Gulf of Maine. Additional closures are 
being considered by the New England Fishery Management Council. A 
prohibition against setting gillnets with mesh size greater than 7 
inches in the mid-Atlantic (from the South Carolina/North Carolina 
border to Delaware) from February 15 to March 15 coincides with a 
portion of the time when humpback whales are present in the area and 
when right whales may be migrating through the area on their way north. 
Proposed closures to monkfish gillnets in the Mid-Atlantic coincide 
with the time when humpback whales are likely to be in the area.
    Some level of lobster trap gear effort reduction is expected to be 
proposed and implemented under the provisions of the Atlantic Coast 
Marine Fisheries Cooperative Act. The Atlantic States Marine Fisheries 
Commission has recommended that the maximum number of traps a person 
may set be limited in state and inshore Federal waters of the Gulf of 
Maine to 800 traps and to 2000 traps in Gulf of Maine offshore waters 
by the year 2000. Trap reductions may occur in areas south of Cape Cod 
as well. Some offshore areas south of Georges Bank are closed to 
lobster trap gear during some summer months in order to reduce 
conflicts with mobile gear. While the closed areas are not the usual 
right whale habitat, the times when lobster gear is prohibited include 
periods when right whales may wander into the areas. Gear conflict 
reduction measures are also expected to decrease the amount of lost 
gear, which should reduce the risk that whales would become entangled 
in ``ghost'' gear. Any effort reduction measures implemented for the 
lobster fishery would reduce the risk of entanglement of whales in that 
gear.

Comments and Responses

    Comments on the interim final rule were received from the States of 
Maine and Rhode Island; the New England Fishery Management Council; the 
Rhode Island Coastal Resources Management Council; 19 conservation 
organizations including the Center for Marine Conservation, Chequamegon 
Audubon Society, Greenpeace, Humane Society of the U.S., the 
International Wildlife Coalition, and a joint letter from 18 
conservation organizations (including most of the aforementioned ones); 
6 fishermen's organizations, including Cape Cod Gillnetter's 
Association, Maine Lobster Promotion Council, Maine Lobstermen's 
Association, Maine Zone E Council, Offshore Lobster ad hoc Whale 
Working Group, and the New Hampshire Commercial Fishermen's 
Association; Cetacean Research Unit; Marine Mammal Commission; New 
England Aquarium; Washington Legal Foundation; and 23 individuals. 
Approximately 4700 signatures were received on petitions urging NMFS to 
strengthen the regulations in the interim final rule.

Comments in Support of the Interim Final Rule

    Comment 1: A number of commenters expressed support for the interim 
final rule and appreciation for NMFS responsiveness to the concerns and 
suggestions made by the fishing industry on the proposed rule. These 
commenters felt that the interim final rule was a good step toward 
developing a cooperative relationship with the fishing industry to 
reduce the bycatch of large whales.
    Response: NMFS appreciates the expressions of support. It believes 
that the cooperation of the fishing industry is essential to make the 
ALWTRP achieve its goals.
    Comment 2: Several commenters believed that the ALWTRP had a 
realistic potential of achieving its stated goals.
    Response: NMFS agrees, provided that the partnership with the 
industry continues to make progress in reducing serious injuries and 
mortalities of large whales in fishing gear. The zero mortality rate 
goal may be difficult to achieve. To reach it will require continued 
efforts to develop effective gear modifications and to improve the 
disentanglement teams.
    Comment 3: The State of Maine expressed appreciation for NMFS 
commitment to fund a position to function as a liaison among the 
fishermen, coastal communities, the State, and NMFS.
    Response: This position is important to the outreach and gear 
research efforts of NMFS in Maine to improve cooperation on the ALWTRP. 
When funding is available, NMFS hopes to fund a second such liaison 
position for southern New England.

Comments in General Opposition to the Plan and the Interim Final 
Rule

    Comment 4: Many comments and petitions were received urging NMFS to 
strengthen the interim final rule on the grounds that the interim 
regulations offer virtually no protection for right whales and would 
probably not prevent future entanglements.
    Response: NMFS acknowledges that some persons and groups are 
disappointed in the regulations implemented by the interim final rule. 
NMFS continues to believe that the approach taken by the ALWTRP has a 
reasonable chance of achieving its difficult goals. The ALWTRP is not 
just a set of regulations. It is a series of intertwined activities 
that include gear research, outreach and education, disentanglement, 
closed periods and gear restrictions. The Plan emphasizes cooperation 
with the fishing industry, which is essential for progress on gear 
development and is helpful for disentangling whales. Because there were 
no known cases of serious entanglements of right whales in U.S. waters 
during the first 6 months of the plan, because fishermen are developing 
and testing new ways to rig their gear to avoid entanglements, and 
because of the assistance of and the interest in disentanglement on the 
part of the fishing community, NMFS believes that the Plan has already 
reduced the risk of serious injury and mortality due to bycatch in U.S. 
fishing gear.
    The ALWTRP is not a static plan. If it is not achieving its goals 
or if better ways to achieve the goals are identified, it can be 
modified. The support and cooperation of the fishing communities will 
be important in continuing to make progress on right whale 
conservation.
    Comment 5: The ALWTRP will do nothing to fulfill the obligations of 
NMFS to reduce the take of northern right whales under section 118 of 
the MMPA.
    Response: NMFS disagrees. The ALWTRP balances cooperation and 
regulation. NMFS believes the ALWTRP has a realistic chance of 
achieving its goals.
    Comment 6: NMFS cannot quantitatively measure the level of risk 
reduction of various measures, and, therefore, it cannot assert that 
the plan is expected to achieve the necessary take reductions within 6 
months.

[[Page 7542]]

    Response: NMFS agrees that it is impossible to quantify the risk 
reduction of any of the measures in the ALWTRP. It acknowledged this 
when it published the interim final rule. However, the same problem 
besets all the measures seriously considered by NMFS or the TRT because 
entanglements are so unpredictable and take place at such a low rate. 
The TRT recognized this during its discussions. Even wide-scale 
closures cannot be quantified as to the degree of risk reduction. The 
impossibility of quantifying risk reduction should not force the 
Government into choosing the only quantifiable approach to the 
problem--total closure of all fixed gear fisheries where right whales 
might occur.
    Comment 7: There is no guarantee that the ALWTRP or the associated 
interim final rule will result in the needed cooperation with the 
fishing industry. That cooperation can only be achieved through an 
intensive constituent outreach program.
    Response: NMFS agrees. Constituent outreach is a key component of 
the ALWTRP, even though the benefits are not quantifiable. Outreach 
efforts have expanded greatly in the past year. Fishermen are reporting 
entangled whales, and they are experimenting with various gear 
modifications. Although more work may need to be done, progress is 
being made.
    Comment 8: NMFS must balance a cooperative approach with the 
implementation of a take reduction plan that prevents entanglements 
rather than merely relies on disentanglement as a take reduction 
strategy.
    Response: The ALWTRP contains specific measures to prevent 
entanglements, such as closures of critical habitat to some gear types 
and restrictions on ways that gear can be rigged. In addition to these 
measures and to strengthening the disentanglement program, NMFS has a 
third key component of the plan, namely research and development of 
gear that will either lower the risk of entanglement or reduce the risk 
that an entanglement will result in a serious injury.
    Comment 9: A number of commenters criticized various aspects of the 
ALWTRP because they were weaker than the consensus portions of the TRT 
report, particularly in the mid-Atlantic anchored gillnet fisheries and 
for the SB/JL area.
    Response: The TRT report was not a consensus document. Although the 
TRT reached consensus on parts of a plan, the understanding within the 
team was that these parts were contingent on reaching agreement on a 
complete set of recommendations. Because no overall consensus was 
reached, NMFS is unable to assume that all members of the TRT still 
support any particular part of the negotiations.
    Comment 10: Several commenters criticized the ALWTRP because it was 
weaker than proposals that the industry had submitted to NMFS for 
various areas, including for Cape Cod Bay and the SB/JL area.
    Response: Prior to the publication of the proposed ALWTRP, a group 
of industry and state agencies in the Gulf of Maine formed an informal 
Industry/State Agency Take Reduction Team (ISATRT) to advise NMFS on 
bycatch reduction measures. After the comment period for the proposed 
rule, it was no longer apparent that the industry supported the 
recommendations made by its representatives on the ISATRT.
    Comment 11: The ALWTRP is almost worse than doing nothing, as it 
creates the appearance of meaningful action when, in fact, nothing has 
been done to reduce risk.
    Response: As explained earlier, NMFS believes that the ALWTRP has a 
reasonable chance of reducing the risk of entanglement.

Comments Regarding Gear and Take Reduction Technology Lists

    Comment 12: Several commenters liked the ``menu'' approach allowed 
by the Take Reduction Technology Lists and believed this approach 
allowed flexibility in adapting individual fishing operations to the 
requirements of the ALWTRP.
    Response: NMFS appreciates this support for the flexibility allowed 
by the Take Reduction Technology Lists. Note, however, that many 
comments were received that opposed the Take Reduction Technology 
Lists.
    Comment 13: Many commenters opposed the gear technology lists 
because they are not a departure from current fishing practices that 
have entangled whales. Therefore, the lists would not achieve the 
required bycatch reductions.
    Response: The gear technology lists were not intended by themselves 
to meet the short-term goal of the ALWTRP, i.e., reducing right whale 
entanglements to below PBR. The reason for implementing the gear 
technology lists is to initiate a flexible process of gear modification 
over the next 4 years. As progress is made in developing fishing gear 
and practices that lower the risk of a serious entanglement beyond that 
gained from using the options on the current lists, new options will be 
added, and, if appropriate, less effective options may be deleted. 
There may also be a small immediate risk reduction because some 
fishermen not using any of these options would have to improve the way 
they set their gear. The gear technology lists may be modified in the 
future if new gear is developed and tested in field trials or if any of 
the characteristics on the list are determined by NMFS to be 
insufficient to reduce entanglement risks.
    Comment 14: NMFS should revise the gear technology lists to require 
the use of gear characteristics that are more risk averse than is 
current practice.
    Response: NMFS intends to continue funding research into gear 
technologies that reduce entanglement in order to upgrade the lists. 
Various possible weak links are being investigated. The operational 
forces exerted on fixed gear are being measured and the theoretical and 
actual forces exerted by whales are being studied to determine the best 
breaking strengths to use. So far, however, no new technology has been 
tested and determined to both lower the risk of a serious entanglement 
and be operationally feasible. NMFS intends to seek the advice of the 
TRT and the GAG, and to seek public comment, before changing the lists.
    Comment 15: The gear technology lists undermine NMFS authority 
because these are regulations that serve no functional purpose.
    Response: NMFS disagrees that the regulations serve no functional 
purpose and, therefore, does not agree with the conclusion that the 
lists undermine the authority of NMFS. As explained above, NMFS expects 
some fishermen to improve the way their gear is set, providing a small 
decrease in the risk of entanglement. Also, by establishing the concept 
of gear technology lists now and by working with fishermen and gear 
technology experts to develop gear modifications that will further 
reduce entanglement risk, more progress can be made in the future as we 
strive to achieve the long-term goal of the Plan.
    Comment 16: A number of the options included on the gear technology 
lists have been proposed without adequate research to indicate that 
they may reduce entanglements.
    Response: Because the process (or processes) by which entanglements 
occur is not known, it is difficult to conduct definitive research on 
whether any particular option on the gear technology lists is 
effective. The items on the gear technology lists were recommended by 
the GAG, based on descriptions by members of the disentanglement team 
of ways in which entanglements might occur. NMFS will

[[Page 7543]]

ask the GAG and the TRT to review the lists.
    Comment 17: It would be useful to rank the options on the gear 
technology lists in order of their anticipated benefit.
    Response: NMFS agrees, but is unable to rank the options at this 
time. It will refer this suggestion to the GAG and the TRT.
    Comment 18: NMFS should postpone requiring compliance with the gear 
technology lists in areas where the risk of entanglement is low (i.e., 
those areas where only one option from the Gear Technology lists is 
required under the Plan).
    Response: Entanglements have been reported from state and Federal 
waters throughout the northeastern U.S. waters. Therefore, there is 
value in requiring gear modifications in most waters. Part of the value 
of requiring compliance with the gear technology lists in all affected 
waters is to gain acceptance of the concept of a list of take reduction 
technologies. As technology is improved, NMFS believes it will be 
easier to make changes to the list than to get agreement to having the 
lists themselves. Also, if all persons fishing in affected waters are 
at least aware that they are subject to the lists, there may be more 
people thinking creatively about how to reduce bycatch without 
affecting the fishing characteristics of the gear.
    Comment 19: Requiring only one option from the Gear Technology 
lists in lower risk areas is not enough.
    Response: There was a divergence of views on this subject (see 
Comment 18). NMFS will refer this comment to the TRT and the GAG, which 
will review the gear technology lists.
    Comment 20: Several commenters stated that a lead line weighing 100 
pounds per 300 feet (91.4 m) is not manufactured. Some urged that the 
requirement be changed; others urged that it be dropped.
    Response: Lead line with these characteristics is available, though 
it is not in common usage. However, since the option of using this kind 
of line is no longer on the gillnet gear technology list, the issue of 
availability is moot.
    Comment 21: The breaking strengths of weak links may need to be 
adjusted for different fishing areas due to tide, current, and setting 
protocols, but the link should be the weakest link possible that is 
consistent with practical fishing gear handling and whale safety.
    Response: NMFS agrees, but believes it needs more information 
before establishing region-specific breaking strengths. NMFS is 
collecting data on forces exerted on gear as well as by whales. This 
information will be presented to the GAG and the TRT.
    Comment 22: There was support for allowing sinking buoy lines to 
have a section of floating line at the bottom to avoid snagging.
    Response: This option is available to all fishing operations. The 
purpose of allowing the section of floating line is to minimize the 
risk of lost gear due to chafing on the ocean bottom.
    Comment 23: The name ``Take Reduction Technology List'' is 
misleading and should be changed.
    Response: For now, NMFS prefers the formal name because it is 
descriptive of its goal. However, ``gear technology list'' is already a 
more common informal term of the option lists.
    Comment 24: One commenter urged NMFS not to amend gear or marking 
requirements without first obtaining the advice and consent of the GAG.
    Response: NMFS intends to seek the advice of the GAG before 
changing the gear marking requirements or the Take Reduction Technology 
Lists. However, the consent of the GAG will not be a requirement of any 
changes.
    Comment 25: The procedure NMFS has set forth for evaluating whether 
gear modifications may be allowed into closed areas is too vague. 
Setting a standard of reducing the risk of entanglement to ``acceptable 
levels'' is also too vague. A rigorous standard must be set.
    Response: NMFS agrees that the standards are vague. Because the 
degree of risk reduction required to achieve the goals of the MMPA is 
not quantifiable, any standards are likely to be vague (see following 
comment). The value of engaging both the GAG and the TRT in review of 
any gear modifications is to ensure as much as possible that changes to 
the gear technology lists are appropriate from a variety of viewpoints.
    Comment 26: The option of allowing lobster or gillnet gear into the 
closed areas should be exercised only if the gear reduces the risk of 
serious injury or mortality to whales to levels approaching zero.
    Response: NMFS agrees with the point of view reflected in this 
suggestion, but notes that this standard is vague. The probability of 
entanglement in any given piece of fishing gear is already extremely 
low. Bycatch is a problem because right whales are so rare that even 
this low probability could harm the population. The suggested standard 
does not clarify (and perhaps cannot quantify) how much a gear 
modification must reduce that very low risk to be ``levels approaching 
zero.''
    Comment 27: There were many comments making specific suggestions 
for changes to the gear technology lists. Included in these suggestions 
were (1) The 1100 lb (498.8 kg) maximum breaking strength for weak 
links is too great and will neither reduce the risk of entanglement to 
whales nor facilitate the whale breaking free from the gear; (2) 
Floating line at the bottom of a buoy line should be no longer than 10 
percent of the depth of the water column; (3) There should be sinking 
ground lines between lobster traps year round in Cape Cod Bay, where 
the bottom is primarily sand and is less likely to cause extensive 
chafing or hinder the retrieval of lost gear as in the case of a rocky 
bottom; (4) NMFS should require four options of the Take Reduction 
Technology Lists in Cape Cod Bay, the Great South Channel and 
Stellwagen Bank/Jeffreys Ledge, instead of requiring only two; (5) NMFS 
should reduce the allowed diameter of line in critical habitat and the 
SB/JL area to \5/16\ (0.79 cm); (6) NMFS should reduce the maximum 
breaking strength of weak links allowed in Cape Cod Bay and Stellwagen 
Bank/Jeffreys Ledge to 400 lb (181.4 kg); (7) NMFS should reduce the 
maximum breaking strength of weak links allowed on Stellwagen Bank/
Jeffreys Ledge to 750 lb (340.1 kg); (8) NMFS should reduce the maximum 
breaking strength of weak links allowed in the Great South Channel to 
less than 1000 lb (453.5 kg); (9) NMFS should increase the maximum 
breaking strength of weak links allowed in the Great South Channel area 
to 1500 lb (680.3 kg); (10) In the Great South Channel, the floating 
line allowed for the bottom ten fathoms of the buoy line should be up 
to \1/2\ inch (1.27 cm) diameter because of the problem of chafing in 
that region; (11) Lobster trawls should be required to use sinking 
ground line or at least to put a weight on each ground line to reduce 
the risk of entanglement in the ground line; (12) In Cape Cod Bay 
critical habitat and in the SB/JL area, NMFS should require gillnets to 
have (a) a floatline that is \5/16\ inch (0.79 cm) diameter 
polypropylene when using net floats or \1/2\ inch (1.27 cm) diameter 
polypropylene foam core for use in flounder nets; (b) weak links at or 
near the surface buoy of a breaking strength less than or equal to 400 
lb (181.4 kg); (c) Danforth-style anchors to anchor the net instead of 
weights to increase the likelihood of the weak links parting; (d) nets 
attached to a lead line weighing 100 lb (45.4 kg) or more per 300 feet 
(91.4 m); (e) weak links between the net bridles on the float line; (f) 
sinking line for buoy line not to exceed \5/16\ inch

[[Page 7544]]

(0.79 cm) diameter, except for the last 10 fathoms, which may be up to 
\1/2\ inch (1.27 cm) polypropylene spliced in to prevent formation of a 
knot and to create no more than 2 fathoms of vertical lift; and (g) 15 
fathom bridle and groundlines to anchors, and (13) In the Great South 
Channel critical habitat, NMFS should require gillnets to have: (a) a 
floatline that is \5/16\ (0.79 cm) to \3/8\ inch (0.95 cm) diameter 
polypropylene when using net floats or \1/2\ inch (1.27 cm) diameter 
polypropylene foam core for use in flounder or monkfish nets; (b) weak 
links at or near the surface buoy of a breaking strength less than or 
equal to 1000 lb (453.5 kg); (c) Danforth-style anchors to anchor the 
net instead of weights to increase the likelihood of the weak links 
parting; (d) nets attached to a lead line weighing 100 lb (45.4 kg) or 
more per 300 feet (91.4 m); (e) weak links between the net bridles on 
the float line; (f) sinking line for buoy line not to exceed \5/16\ 
inch (0.79 cm) to \3/8\ inch (0.95 cm) diameter, except for the last 10 
fathoms, which may be up to \1/2\ inch (1.27 cm) polypropylene spliced 
in to prevent formation of a knot and to create no more than 2 fathoms 
of vertical lift; and (g) 15 fathom bridle and groundlines to anchors.
    Response: These suggestions are useful. Some of them are 
conflicting; others may not work in all areas and, if implemented, 
could increase the amount of lost gear. NMFS intends to refer all these 
comments to the GAG and the TRT for their review.

Comments Regarding Gear Research

    Comment 28: NMFS must make a strong financial commitment to an 
aggressive gear research and development program immediately.
    Response: NMFS agrees and intends to continue to fund gear research 
for the foreseeable future. In the 1998 fiscal year, NMFS allocated 
$130,000 for gear research. Additional funds were dedicated to 
outreach. NMFS expects to allocate the same or more funds in 1999, 2000 
and 2001.
    Comment 29: The ALWTRP provides little incentive for the fishing 
industry to cooperate in gear research. NMFS must state clearly the 
implications of failing to find a technological solution to the 
entanglement problem.
    Response: NMFS acknowledges the concern regarding the commitment of 
the fishing industry to cooperate in gear research. In actuality, the 
cooperation from the industry has been high, both in terms of ideas and 
testing. NMFS believes that the outreach efforts have informed the 
industry of the difficulties of reaching the zero mortality rate level, 
especially for right whales, and that the industry is working actively 
to find a technological solution to the problem.
    Comment 30: NMFS should conduct research into the development of a 
weak buoy line, which might be more likely to reduce whale 
entanglements than weak links alone.
    Response: NMFS agrees. NMFS is now in the process of awarding 
contracts to develop this kind of system.
    Comment 31: Research should be done with baleen from dead whales to 
see how rope passes through it.
    Response: NMFS agrees and has tested how rope passes through the 
baleen from several species this year. The results were presented to 
the GAG this fall.
    Comment 32: NMFS should continue its research to determine whether 
a weaker breaking strength could be used in Cape Cod Bay.
    Response: This research is now being undertaken; preliminary 
results were presented to the GAG this fall.
    Comment 33: NMFS should not conduct research on weak links with 
1100 lb (498.8 kg) breaking strengths, as this represents no risk 
reduction.
    Response: NMFS agrees. It is not trying to develop a better link 
that breaks at 1100 lb (498.8 kg). Instead, it is trying to develop 
weaker links and is seeking information about what breaking strengths 
are appropriate in each region.
    Comment 34: It would be useful to review photographs of entangled 
whales to try to determine how many of them have just line wrapped 
around the body (in which case a weak link at the buoy may not be 
helpful).
    Response: NMFS agrees that this would be useful information. It is 
conducting detailed investigations of all entanglements reported in 
1998.
    Comment 35: Research should be done on how to put weak links at the 
bottom of fishing gear.
    Response: NMFS agrees that this could be an important breakthrough, 
although it will take some creativity to design a weak bottom link that 
will still allow gear to be hauled. Research is now being conducted to 
develop a workable weak link to be used between the gear and the buoy 
line.
    Comment 36: There should be research on ways to put weak links into 
offshore lobster gear because they are so much heavier than inshore 
gear.
    Response: Offshore lobster gear tends to be substantially heavier 
than inshore gear. This may make it more difficult for a whale to break 
free if it becomes entangled. This heavier gear also makes the 
development of weak links more difficult. However, NMFS agrees that 
solving the problem of putting weak links into offshore lobster gear 
could be an important step forward in bycatch reduction and has issued 
a Request for Proposals to address this concern.
    Comment 37: Research should be done on the configuration of ground 
lines between lobster traps; an upward bow of line between traps 
represents an entanglement risk.
    Response: This is being done through in situ observations of both 
lobster and gillnet configurations while the gear is in the water.

Comments Regarding Gear Marking

    Comment 38: Many commenters were opposed to the gear marking scheme 
as outlined in the interim final rule. Some commenters believed that 
the information that the gear marking would provide would not be 
specific enough to determine where entanglements were occurring. Others 
thought information about location might be misleading, since marked 
gear could be dragged to another location before an entanglement 
occurred. Some questioned whether the markings would remain detectable. 
Several believed that whatever benefit gear marking might provide would 
not outweigh the burden to the fishermen. Several commenters suggested 
that gear marking should not be required in exempted waters.
    Response: The purpose of requiring gear marking is to obtain better 
information about where entanglements are taking place. NMFS agrees, 
therefore, that the marking scheme in the interim final rule was too 
general and would not have provided useful information about the 
specific region where an entanglement took place. However, a color-
coded marking scheme that is specific for every region and gear type of 
interest would be extremely complicated. Given the reservations about 
gear marking, NMFS has decided that it would be best to have a 
relatively small-scale pilot program to determine whether the gear 
marking process works and if it provides useful information. Therefore, 
gear marking will only be required in critical habitats, in the 
southeast U.S. observer area, and in the SB/JL area. This scheme should 
provide specific information about where gear that entangles a whale 
was first set, provided the entanglements take place in one of these 
regions (which are the areas of greatest concern). It will also allow 
NMFS to determine whether gear marking works on an operational basis 
before requiring wide-scale marking. NMFS acknowledges that this gear 
marking scheme does not surmount the problem of gear that is dragged by 
some other force from one region to another and then entangles a whale. 
However,

[[Page 7545]]

implementation of gear marking in this pilot program may help to 
evaluate how big a problem this might be.
    Comment 39: Gear marking is an important data gathering device that 
may assist in designing future bycatch reduction measures to achieve 
the zero mortality rate goal.
    Response: NMFS believes that gear marking has the potential of 
providing important data on where entanglements occur. This information 
could contribute to future measures to reduce entanglement risk. There 
are questions about gear marking, both from an operational standpoint 
and with regard to the interpretation of the data it might provide. 
NMFS believes that the relatively restricted gear marking scheme in the 
final rule will help resolve those questions.
    Comment 40: Gear marking does not reduce risk; it simply allows 
NMFS the possibility of knowing where entanglement occurred.
    Response: NMFS agrees. However, the purpose of gear marking is 
exactly to know more about where an entanglement occurs in order to 
focus future take reduction measures on the places where the risk is 
greatest.
    Comment 41: NMFS should consult with state governments, the TRT, 
and the GAG with a view to improving the gear marking system by 1999.
    Response: NMFS will ask the GAG and the TRT to keep the gear 
marking scheme in this final rule under review. If major improvements 
are recommended, NMFS may modify the gear marking scheme again. 
However, NMFS expects to implement the current scheme for at least two 
years in order to get a better picture of its value. The states will be 
involved in the GAG and the TRT and their experience and concerns will 
be taken into account during the discussions in these groups.
    Comment 42: Gear marking should not apply in exempted areas.
    Response: NMFS no longer requires gear marking in exempted areas.

Area-specific Comments

    Comment 43: The closures in critical habitats are not likely to 
result in significant risk reduction, even though they occur at times 
when right whales are most likely to be present, because the closures 
take place at times when fishing effort is low.
    Response: NMFS believes the current closures are sufficient to 
achieve the short-term goal of the ALWTRP by providing protection in 
areas and times when right whales congregate. If it becomes apparent 
that the long-term goal cannot be met through gear modifications, 
further closures or other actions may be necessary.
    Comment 44: The Cape Cod Bay critical habitat area should be closed 
to lobster gear as well as to sink gillnet gear from January 1 to May 
15.
    Response: NMFS believes that the restrictions imposed on lobster 
gear in Cape Cod Bay are sufficient to protect large whales from 
entanglement. If there is evidence that this belief is unfounded, NMFS 
will consider further restrictions in that area, including prohibiting 
lobster fishing from January 1 to May 15. The Commonwealth of 
Massachusetts is closely monitoring lobster fishing effort in Cape Cod 
Bay during the winter, so the effectiveness of the regulations in Cape 
Cod Bay should be determinable. The gear marking requirements for 
lobster gear in that area may also help to monitor the effectiveness of 
the regulations.
    Comment 45: The decision to exempt Long Island Sound is 
appropriate, since no right whales have been seen there in 20 years.
    Response: NMFS agrees.
    Comment 46: The closure of the Great South Channel critical habitat 
to lobster gear from April 1 to June 30 is appropriate.
    Response: NMFS agrees.
    Comment 47: It is irresponsible to allow gillnetting in the 
``sliver area'' of the Great South Channel because right whales are 
known to use the area during that time period.
    Response: NMFS agrees that right whales and gillnet gear may occur 
in this area at the same time, as seen in the 1998 aerial surveys. It 
will consider closing this area in the future if the MMPA goals are not 
being met and will urge the TRT to discuss this option as a way to 
continue progress toward the long-term goal of the Plan. However, as 
explained in the interim final rule, NMFS understands that the 
gillnetters in the Sliver Area generally tend their gear, and hence are 
likely to see and report entangled whales quickly. One right whale that 
had been entangled elsewhere was disentangled based on a call from a 
gillnetter in the vicinity of the Sliver Area in 1997.
    Comment 48: Gillnetting should be allowed in the Great South 
Channel once gear has been modified to prevent the potential of 
entanglement.
    Response: NMFS agrees in concept but notes that this is another 
``vague standard.'' It will be difficult to demonstrate that a gear 
modification will prevent entanglements, given our limited 
understanding of how entanglements occur. Because there will be 
differences in opinions of what constitutes an adequate demonstration 
of risk reduction, NMFS will seek the advice of the TRT and the GAG on 
whether to allow modified gear into a closed area.
    Comment 49: The gillnet closure in the Great South Channel should 
only extend from April 1 to May 31 because the right whales are 
generally in the ``Area 1'' groundfish closure (where gear is 
prohibited year round) by June.
    Response: NMFS is not aware of any analysis to support this 
assertion. Therefore, it will not change the timing of the closure in 
the Great South Channel in this final rule, but it will ask the TRT for 
advice on this suggestion.
    Comment 50: The offshore lobster fishery represents a significant 
risk to right whales because the gear is heavier and because the 
chances of seeing an entangled whale and the ability to disentangle it 
are lower than the chances for inshore lobster gear. Therefore, more 
stringent measures should be applied to the offshore lobster gear.
    Response: NMFS agrees that the gear used in the offshore lobster 
fishery is generally heavier than inshore gear. Furthermore, offshore 
lobster gear is known to entangle right whales. However, it is not 
clear that offshore lobster gear poses a greater threat to right whales 
than inshore gear. Lobster gear is sparse offshore, and right whales do 
not appear to be resident in any offshore area for predictable times of 
the year. NMFS notes that the heavier nature of the offshore gear will 
make it more difficult to devise a technological solution to the 
entanglement problems that may occur there. However, NMFS is funding 
gear research to find a solution to this problem.
    Comment 51: There was support for the ALWTRP closure of the Cape 
Cod Bay critical habitat to gillnet gear for the period of 1 January to 
15 May.
    Response: NMFS continues to believe that a closure in this area for 
this duration is prudent. It notes, however, that there was support for 
allowing more flexibility in opening the area early if right whales 
leave before May 15. (See the following comment.)
    Comment 52: The regulations for Cape Cod Bay critical habitat allow 
NMFS to lift restrictions if right whales have been determined to have 
left the Bay early. There should be a similar provision that allows 
NMFS to keep the area closed if right whales have not yet departed.
    Response: Paragraph (g)(2)(v) of Sec. 229.32 would allow NMFS to 
publish in the Federal Register criteria either to open an area if 
right whales had departed earlier than expected or to keep the area 
closed if right whales are

[[Page 7546]]

remaining in the area longer than expected.
    Comment 53: The western boundary of the SB/JL area extends too far 
toward the coast. There have been whale sightings there, but no 
incidents of serious entanglements.
    Response: Because there have been whale sightings in this area and 
because the actual locations of most entanglements are unknown, NMFS 
considers it prudent to keep the boundaries of the SB/JL area as in the 
interim final rule. It will seek the advice of the TRT as to whether 
the boundaries should be changed.
    Comment 54: There is no need for gear modifications or gear marking 
in New Hampshire state waters.
    Response: This final rule does not require gear marking in New 
Hampshire state waters. NMFS believes that the proximity to the 
relatively high-risk SB/JL restricted area, where several species of 
whales are commonly found, justifies requiring the use of at least one 
option from the Take Reduction Technology Lists.
    Comment 55: There was support for the driftnet gear fishing 
practices requirements in mid-Atlantic waters.
    Response: NMFS appreciates this statement of support. Note that the 
full rationale for this provision was presented in the Federal Register 
document containing the interim final rule.
    Comment 56: One commenter supported the requirement that driftnets 
in the mid-Atlantic be tended, even though the commenter did not 
believe that it reduced risk. The commenter believed that tended nets 
were not less likely to entangle whales than were untended nets and 
that the only advantage would be the immediate knowledge that an 
entanglement occurred. Since the nearest disentanglement team was in 
New England, there would be no benefit to this knowledge.
    Response: NMFS believes detecting an entanglement immediately 
improves the chances of a successful disentanglement. As the commenter 
noted, a whale caught in a tended driftnet would be noticed quickly. 
The exact position of that animal would then be known, and the 
fisherman could assist in keeping track of that animal until the 
disentanglement team could get to the site. This should increase the 
chances of disentangling the whale.
    NMFS is expanding the disentanglement network to cover the mid-
Atlantic area. The first workshop to train fishermen in the mid-
Atlantic area to assist in responding to entanglements was held in 
early December 1998, and additional training sessions are planned for 
the future. NMFS hopes to avoid a similar situation as that which 
occurred in March 1998 when a humpback whale died in gillnet gear 
before a disentanglement team could reach the site.
    Comment 57: There was support for the boundaries of the southeast 
U.S. restricted area and the southeast U.S. observer area and for the 
prohibition on driftnet use in the southeast U.S. restricted area 
during the times when right whales are likely to be present.
    Response: NMFS appreciates the statement of support. The rationale 
for the boundaries was explained in the interim final rule.
    Comment 58: The best dates for the closure of the southeast U.S. 
restricted area would be from November 1 through April 1.
    Response: The dates of the southeast U.S. closure were selected by 
the TRT based on historical sighting data. Only two whales have been 
sighted in this area prior to November 15--one in 1986 and one in 1988. 
Therefore, NMFS believes the November 15 starting date for this closure 
is appropriate.
    Comment 59: There was support for the strikenet provisions in the 
southeast U.S. restricted area.
    Response: NMFS appreciates the statement of support. The rationale 
for the strikenet provisions was explained in the interim final rule.
    Comment 60: There is no evidence that strikenetting has posed a 
risk to right whales. Therefore, restrictions on strikenetting offer 
little reduction in risk to right whales.
    Response: As explained in the interim final rule, the southeast 
U.S. drift gillnet fishery for sharks is believed to be responsible for 
the entanglement of at least one right whale. Although strikenetting 
may pose less of a problem than other forms of gillnetting (and 
therefore is not prohibited during the closed season), the ALWTRP 
imposes some regulations to further reduce the potential for 
entanglement. Therefore, NMFS believes it is appropriate to take 
precautionary steps to reduce the risk of future entanglements.
    Comment 61: NMFS should require that observers be on board vessels 
operating with strike nets in the southeast U.S. restricted area during 
the closed period.
    Response: NMFS will attempt to place an observer on every vessel 
fishing for sharks with strikenets in the southeast U.S. restricted 
area during the closed period. It does not seem appropriate, however, 
to prohibit a person to fish in cases when NMFS fails to provide an 
observer for that trip.
    Comment 62: Gear set adjacent to critical habitat should be subject 
to the same restrictions as that placed on gear fished within the 
critical habitat because animals do not respect lines drawn on maps.
    Response: The boundaries of right whale critical habitats were 
selected because they enclosed about 85 percent of the historical right 
whale sightings. While it is true that right whales must pass through 
adjacent waters to reach any critical habitat, the chances of finding a 
right whale in an area adjacent to a critical habitat are substantially 
less than of finding a right whale in the critical habitat. Therefore, 
less restrictive measures are appropriate.
    Because the right whale sighting record in the southeast U.S. area 
is relatively new, the critical habitat boundaries there may possibly 
be less appropriate than those in the northeast. As sighting data are 
collected, NMFS may consider revising the southeast U.S. critical 
habitat boundaries. However, gillnet restrictions in this area have 
been expanded north, south, and east beyond the critical habitat 
boundaries, encompassing all known sightings of right whales in the 
vicinity.

Comments Regarding Disentanglement Efforts

    Comment 63: NMFS is placing too much faith in disentanglement as a 
key component of the ALWTRP. No serious wildlife management plan relies 
on first aid to injured animals in preference to preventing death and 
injury in the first place.
    Response: NMFS agrees that preventing entanglement is preferable to 
disentangling whales if the cost and effectiveness of each method are 
equivalent. The ALWTRP relies on a mixture of measures to lower the 
risk of entanglement, such as closures of critical habitats and gear 
restrictions, and on disentanglements when whales do encounter gear. In 
addition, the ALWTRP encompasses research on cost-effective gear 
technologies that will further reduce entanglement risk and on outreach 
and education to show fishermen ways to set their gear that could 
reduce risk, to get ideas from fishermen as to fruitful avenues for 
gear research, and to encourage fishermen to assist in 
disentanglements.
    Comment 64: The ALWTRP does not have a specific proposal to 
establish, train, and equip regional disentanglement response teams.
    Response: NMFS is in the process of expanding the disentanglement 
teams. A permanent coordinator has been established in Maine, and 
efforts to set

[[Page 7547]]

up teams in the southeast and mid-Atlantic are underway.
    Comment 65: Simply calling in an entanglement does not necessarily 
result in an animal being disentangled.
    Response: NMFS agrees. However, reporting an entanglement is a 
necessary first step to removing the gear from an animal. The fishing 
industry can provide a wide-ranging sighting network in regions where 
other vessels rarely go. In addition, fishermen who call in an 
entanglement are sometimes able to keep track of the animal until the 
disentanglement team arrives and to assist in removing the gear. All 
these efforts can help improve the chances of removing the gear without 
serious injury to the whale.
    Comment 66: Improving the disentanglement effort is more 
appropriate for achieving the long-term goal than the short-term goal.
    Response: Improving the disentanglement effort is appropriate to 
achieve both the short-term and the long-term goal of the ALWTRP. NMFS 
intends to continue to improve the disentanglement effort to help 
achieve the long-term goal of the Plan.
    Comment 67: Right whales are notoriously difficult to disentangle 
because they tend to thrash wildly, whereas other species may become 
more docile during disentanglements. Therefore, disentanglement should 
not be viewed as a long-term solution to the bycatch problem.
    Response: NMFS acknowledges the difficulties in disentangling right 
whales. Although it intends to continue to improve the capabilities of 
the disentanglement network, it is also seeking to develop gear 
technologies that will reduce entanglements to help achieve the long-
term goal of the Plan. NMFS will continue to support the 
disentanglement effort until an effective solution involving fishing 
gear or practices is found.
    Comment 68: Because no vessel is allowed within 500 yd (457 m) of 
right whales, detecting entangled whales will be difficult, making 
reliance on disentanglement even more problematic.
    Response: NMFS acknowledges the difficulties in detecting entangled 
right whales. Nevertheless, if an entangled right whale is seen, an 
effort should be made to remove the gear. The MMPA regulations 
specifically provide an exception for a vessel to approach a right 
whale closer than 500 yd (457 m) to investigate an entanglement, 
provided the vessel is authorized by NMFS to do so.

Comments Regarding Contingency Measures

    Comment 69: Several commenters asked for clarification of the 
process by which NMFS could keep an area closed if right whales remain 
longer than expected or could open an area earlier than expected if the 
whales leave early.
    Response: A timely process invoking the regulations of this final 
rule is not yet available. Because the criteria for opening an area 
early or for keeping an area closed are likely to both be 
controversial, NMFS intends to seek a recommendation from the TRT as to 
an acceptable process. Note, however, that section 118(g) of the MMPA 
gives NMFS authority to implement emergency closures to protect marine 
mammals if certain criteria are met. Likewise, the ESA allows emergency 
closures to protect right whales, humpback whales, and fin whales. 
These authorities could be used to keep critical habitats closed to 
fishing gear if right whales remain longer than expected (provided 
relevant criteria are met), although they cannot be used to open an 
area if right whales leave earlier than expected.
    Comment 70: Several commenters expressed concern about the 
possibility that the SB/JL area might be closed to gillnetting if 
further take reduction measures are necessary. They asked for 
clarification on the process of making such a decision.
    Response: Except when there is a need to implement emergency 
measures under the MMPA or the ESA as explained in response to comment 
69, a decision to close the SB/JL area to gillnetting for the purposes 
of whale conservation would be made by NMFS after consultation with the 
TRT and after public comment on a proposed rule.
    Comment 71: There was support for the provision to close critical 
habitat to a gear type if its allowance to be set in that area during a 
closed period results in a serious injury or mortality. However, if 
NMFS must take this action, it should consult with the TRT.
    Response: NMFS intends to consult with the TRT if it is considering 
taking this action, unless an emergency situation exists.
    Comment 72: One group felt that the provision that would require 
closure of critical habitat if gear that is allowed to be set there 
entangles a whale should not be mandatory. There are many factors in 
dealing with people, animals and the ocean, and some flexibility is 
needed. If fishermen believe that reporting an entanglement will lead 
to the closure of the fishery in that area, there will be less 
incentive to cooperate.
    Response: NMFS is aware that regulations cannot account for every 
contingency, and that the possibility of closure could be a 
disincentive to reporting entangled whales. However, there is some risk 
in allowing gear to be set in areas when right whales are expected to 
be in the area. Although NMFS believes this risk is justifiable, it 
believes that it should have a clear contingency plan in case this risk 
is underestimated. It will, however, ask the TRT to provide advice on 
this matter.
    Comment 73: Several commenters expressed disappointment that NMFS 
had removed specific criteria for extending gear requirements or 
closing an area in the event of anomalous right whales distributions. 
Some felt that the final rule must specify criteria for mandatory 
institution of closures in the case of anomalous right whale 
distribution. Others felt that NMFS should, at a minimum, implement an 
early warning mechanism to notify fishermen if right whales are in an 
area.
    Response: The criteria contained in the proposed rule for closing 
an area in the event of anomalous right whale distributions were 
unilaterally developed by NMFS. During the comment period, a number of 
difficulties and ambiguities in the criteria were pointed out. 
Therefore, NMFS did not include the criteria in the interim final rule 
or in this final rule. It will, however, ask the TRT to develop 
appropriate ways of dealing with this situation. Note that NMFS has 
established a right whale alert program to inform marine users of the 
presence of right whales in an area.

Comments Regarding Constituent Outreach

    Comment 74: Many commenters urged NMFS to continue and improve its 
outreach efforts, especially by going to where the fishermen are 
gathered, such as on the docks and at their forums and association 
meetings, rather than require industry to attend meetings convened by 
NMFS.
    Response: NMFS intends to continue its outreach efforts, which are 
a key component of the ALWTRP.

Comments Regarding Process and Relationships

    Comment 75: NMFS should clarify the roles of the TRT and the GAG.
    Response: Each group serves a different function. The TRT is 
composed of persons representing all stakeholders and having a wide 
range of expertise on fishing practices and on scientific, technical, 
and policy matters. NMFS intends to use the TRT to advise

[[Page 7548]]

it on general strategies for reducing serious injuries and mortalities 
of large whales due to entanglements and for monitoring the progress of 
the ALWTRP toward its goals. The GAG is a technical body composed of 
persons with first-hand experience with fishing gear or 
disentanglements. Its function is specifically to provide technical 
advice on matters pertaining to fishing gear.
    Comment 76: Several commenters supported the creation of a GAG and 
urged that it be continued.
    Response: NMFS intends to continue to seek advice from the GAG on 
matters pertaining to development and use of technology that can reduce 
the risk of entangling large whales. NMFS convened a second meeting of 
the GAG in October 1998 and plans to convene the group at least once in 
1999.
    Comment 77: NMFS usurped the authority of the TRT by creating a 
competing body in the GAG. There was no representation from the 
conservation community in that Group.
    Response: The TRT and the GAG are both advisory bodies to NMFS, 
and, as such, neither has authority to make decisions. One member of 
the conservation community with expertise in gear development was asked 
to participate on the GAG but was unable to do so. NMFS intends to 
continue to seek participation on the GAG from the conservation 
community, subject to the requirement that the participant have first-
hand experience with fishing gear.
    Comment 78: NMFS should require that recommendations of the GAG be 
reviewed by the TRT.
    Response: To the extent that timing allows, NMFS will ask the TRT 
to review the recommendations of the GAG. In this regard, it will try 
to convene meetings of the GAG prior to meetings of the TRT in order 
that the work of the former can be reviewed by the latter.
    Comment 79: Several commenters questioned the value of seeking the 
advice of the TRT on matters regarding the Take Reduction Technology 
Lists, since many of the TRT members are not fishermen or gear 
specialists. The GAG should have the lead responsibility for developing 
and recommending gear modifications.
    Response: NMFS believes the GAG should have a leading role in 
developing and recommending gear modifications. However, the GAG need 
not be the only source of new ideas for gear modifications; the TRT or 
any person may make recommendations to NMFS about gear research. NMFS 
notes that keeping the TRT informed of the activities of the GAG will 
be essential for the TRT to fulfill its role of monitoring the progress 
of the ALWTRP.
    Comment 80: All gear marking and modification proposals should be 
approved by the GAG.
    Response: NMFS intends to consult with the GAG on matters 
pertaining to gear technology. However, the GAG does not have authority 
to approve gear or gear marking proposals.
    Comment 81: The commitment to improving the involvement of the 
fishing industry in whale bycatch reduction is laudable but of 
questionable concrete benefit, especially if it results in 
recommendations to continue current fishing practice.
    Response: NMFS believes that involving the fishing industry in 
whale bycatch reduction is the only practical way to achieve the goals 
of the ALWTRP. The fishing community has much to offer in the form of 
ideas for better gear and fishing techniques and in cooperation with 
disentanglements. NMFS recognizes that there are no guarantees that the 
Plan will reach its goals and that the success of the Plan will only be 
determined in retrospect, but it believes that the cooperation of the 
fishing community is essential to whatever actions are taken to reduce 
bycatch. Current research efforts are aimed at developing fishing 
practices and gear to protect whales that are feasible and, in some 
cases, can improve either fishing effectiveness or cost effectiveness.
    Comment 82: NMFS should change its procedures for making changes to 
the regulations affecting the Cape Cod Bay critical habitat so as to 
keep in line with the regulations of the Commonwealth of Massachusetts.
    Response: The regulations in this final rule are intended to be 
identical to the current regulations of the Commonwealth of 
Massachusetts regarding fishing in Cape Cod Bay critical habitat, 
except that NMFS cannot implement the Commonwealth's provisions to open 
the area early without going through a more formal rule making process.
    Comment 83: NMFS and the New England Fishery Management Council 
should discuss the procedure for reviewing and testing gillnet gear 
modifications discussed in Framework 23 to the Northeast Multispecies 
Fishery Management Plan.
    Response: NMFS agrees and will seek such a discussion.

Comments Regarding Exempted Waters

    Comment 84: Several commenters felt that the boundary lines for 
exempted waters in the Gulf of Maine were confusing, especially as most 
coastal lobstermen in Maine set their gear on both sides of the 
exemption line. Some felt that NMFS should exempt all Maine state 
waters from the ALWTRP.
    Response: Because right whales are known to move through Maine 
state waters, NMFS does not believe it would be prudent to exempt all 
state waters from the ALWTRP. Instead, to avoid the confusion caused by 
the exemption lines in the interim final rule, NMFS will exempt only 
the area designated in the proposed rule, i.e., waters landward of the 
first bridge. All other waters in the Gulf of Maine (including New 
Hampshire and Massachusetts State waters) are subject to the 
regulations in this final rule. NMFS notes that the gear marking 
requirement in the interim final rule no longer applies to Maine or New 
Hampshire State waters, and much of Massachusetts State waters is also 
exempt from gear marking.
    Comment 85: The State of Rhode Island believed that the Sakonnet 
River and some coastal ponds were inadvertently omitted from the list 
of exempted areas.
    Response: NMFS agrees. NMFS is not aware of any right whale 
sightings in these areas and, therefore, exempts them from the ALWTRP 
in this final rule.
    Comment 86: One commenter believed that there was no justification 
for requiring any gear requirements in Rhode Island State waters, since 
right whale sightings are so rare there.
    Response: Right whales occur in Rhode Island State waters from time 
to time, and therefore, the regulations in this final rule will apply 
to Rhode Island State waters (with limited exceptions). In 1998, one 
right whale was seen within 50 yards (45.7 m) of Watch Hill, RI, and 23 
right whales were seen in one day east of Block Island off the mouth of 
Narragansett Bay.

Comments Regarding Other Aspects of the ALWTRP

    Comment 87: The definition of ``lobster trap'' is too broad and 
could be construed to include black sea bass traps and even trawl gear.
    Response: The definition in this final rule has been changed to 
clarify that it is intended to restrict only trap or pot-like gear, 
including black sea bass traps and scup pots, because they are so 
similar to lobster traps in the way they are set that it seems likely 
that large whales would have the same entanglement problems with this 
kind of gear.
    Comment 88: Several persons felt that the prohibition on wet 
storage is unenforceable. At least one person believed that NMFS should 
require that gear that is not being actively fished be

[[Page 7549]]

removed from the water. While this requirement may be difficult to 
enforce, it has a greater potential for reducing entanglement risk to 
whales than simply requiring that gear be hauled at least every 30 
days.
    Response: NMFS recognizes that the prohibition on wet storage is 
difficult to enforce. It intends to seek the advice of the TRT on 
better ways to accomplish the purpose of this provision, which is to 
minimize the risk of entanglement in gear that is not actively being 
fished.
    Comment 89: One commenter asked for clarification of whether the 
30-day ``inspection'' requirement meant that gear had to be hauled back 
to land every 30 days to be inspected.
    Response: Gear must be hauled at sea by its owner or designee at 
least once every 30 days. It does not need to be brought back to land 
every 30 days.
    Comment 90: The prohibition on ``wet storage'' offers no risk 
reduction, because it only requires that a fisherman haul his gear once 
every 30 days. The gear does not need to be brought to land and can be 
left unbaited in the water.
    Response: The intent of this provision was to reduce the practice 
of ``wet storage'' of inactive gear. The requirement that gear be 
hauled at least once every 30 days may not be the best way to achieve 
this. NMFS will ask the TRT to develop a better system for reducing 
entanglements in gear that is not being actively fished.
    Comment 91: NMFS was asked to clarify the requirement that gear be 
set in such a way as to prevent line from floating at the surface at 
any time. One commenter pointed out that there will be line floating at 
the surface at some time during all normal lobster or gillnet fishing 
operations.
    Response: The intent of this provision is that there should be no 
line floating at the surface when gear is not being hauled. NMFS 
understands that when gear is being set or hauled there will be time 
when some line floats at the surface. This is acceptable.
    Comment 92: The prohibition on floating line at the surface will 
not result in any meaningful risk reduction, as current practice 
results in line that does not usually float at the surface.
    Response: Not all fishermen set their gear so that there is no line 
floating at the surface, although doing so is considered to be the 
current best fishing practice. NMFS believes that this requirement will 
reduce the risk of entanglement, although the degree of risk reduction 
cannot be quantified.
    Comment 93: There was support for the requirement that gear be set 
with no floating line at the surface, even though it might not result 
in any meaningful risk reduction.
    Response: See response to Comment 92.
    Comment 94: NMFS should develop an Early Warning System to alert 
fishermen to the presence of right whales in the high risk areas.
    Response: In 1997, NMFS established a right whale alert system 
operating in and around Cape Cod Bay and Great South Channel critical 
habitats that informs any interested party of all reliable reports it 
receives of right whale sightings in the northeast. A similar program 
has been operating in the southeast U.S. for a number of years. Aerial 
surveys are flown every day that weather permits during the times when 
critical habitats are closed to fishing gear. All information is 
disseminated to a fax network, is available through a ``fax on demand'' 
system, and is posted on several web sites on the internet. The primary 
purpose of this alert system is to lower the risk of ship strikes, but 
the fishing community can avail itself of the information as well.
    NMFS will ask the TRT to review the adequacy of this system.
    Comment 95: NMFS must make a substantial financial commitment to 
improve monitoring the movements of large whales, as well as studying 
changes in the distribution of fixed gear.
    Response: NMFS spent $1,000,000 in FY98 on right whale research and 
management along the U.S. east coast. NMFS expects the financial 
commitment to remain the same or to increase in FY99.

Comments on Other Matters

    Comment 96: Several commenters expressed concern about the effects 
of ship strikes on the right whale population.
    Response: NMFS is also concerned about the effects of ship strikes 
on right whales, although it cannot address these concerns under this 
Take Reduction Plan, which is limited under the MMPA to addressing 
interactions with commercial fishing. Several steps are being taken to 
address the ship strike problem in other ways. For example, the U.S. 
Government proposed and the International Maritime Organization (IMO) 
agreed that ships entering the Great South Channel call the Coast 
Guard, which can alert the ship when right whales are in the channel 
and can inform the ship of the general dangers of ships to right 
whales. The IMO approved this proposal in December, 1998. 
Implementation is scheduled to begin by July, 1999.
    NMFS conducted aerial surveys to study the distribution of whales 
and ships during 1998. During these surveys, ships in the vicinity of 
right whales are contacted and informed of the importance of avoiding 
the whales. In addition, the right whale information in the Coast 
Pilots is being updated. Revisions to Coast Pilots 1 and 2 were 
published in May and June, 1998 (respectively); revisions to Coast 
Pilot 3 is scheduled to be published October, 1999 and to Coast Pilot 4 
in June, 1999. Nearly all relevant navigation charts have been revised 
and updated with information on the 500-yard (457 m) approach rule and 
right whale critical habitat.
    NMFS is also trying to develop cooperative agreements with 
individual shipping companies, both U.S. and foreign flagged, that 
operate routinely through right whale habitats.
    Comment 97: Two commenters noted that NMFS had not commented on an 
analysis prepared by the State of Maine of the economic impact of the 
proposed rule.
    Response: The analysis prepared by the State of Maine pertained to 
the proposed rule. The interim final rule was so different from the 
proposed rule that it was believed that a detailed response to the 
State's analysis was not necessary in the interim final rule. NMFS 
agreed in concept with the State of Maine's conclusion that the 
proposed regulations would have imposed a substantial economic impact 
on the Maine lobster fishery, although it disagreed with some of the 
specific assertions of the authors of the paper. NMFS has forwarded 
more detailed comments on the State of Maine's analysis to the State.
    Comment 98: A suggestion was made that NMFS monitor the mid-water 
trawl fishery to determine its potential for takes of marine mammals.
    Response: NMFS has placed some observers on mid-water trawl 
vessels, but it does not yet have information suggesting that this is 
an urgent or high priority situation for large whales. No large whales 
have been seen by observers to be entangled by this fishery.
    Comment 99: One commenter noted that NMFS had said that it would 
continue to assess the appropriateness of the Category III fishery 
classification for the tuna hand line/hook-and-line fishery, groundfish 
longline/hook-and-line fishery, surface gillnet fishery for small 
pelagic fishes, trap fisheries other than lobster trap, finfish staked 
trap fisheries, and weir/stop seine fisheries. This commenter urged 
NMFS to change the classification of these fisheries to Category II in 
order to more effectively monitor them. The commenter also

[[Page 7550]]

recommended that NMFS require these fisheries to mark their gear.
    Response: NMFS reviews the list of fisheries every year and seeks 
comments and information on the list through a Federal Register 
notification. So far, there has not been enough information submitted 
to justify classifying the preceding fisheries in Category II. NMFS 
intends to see if the gear marking scheme in this final rule provides 
useful information before broadening the scope of the gear marking 
requirement.
    Comment 100: One commenter believed that NMFS could not issue an 
incidental take statement for right, humpback and fin whales, and felt, 
therefore, that NMFS does not have the authority to exempt fishermen 
from liability for illegal takes of listed species under the ESA. This 
commenter urged NMFS to inform fishermen that they should report 
entangled whales and that such a report would not result in prosecution 
if the whale is swimming with the entangled gear.
    Response: NMFS agrees that it cannot exempt fishermen from 
liability for illegal takes of species listed under the ESA. It does, 
however, have discretion as to which cases it will prosecute. Unless 
there is evidence of willful harm to the whale, it is unlikely that 
NMFS would prosecute anyone calling in an entangled whale.
    Comment 101: One commenter supported NMFS's plan to notify all 
Atlantic fisheries permit holders of the importance of bringing gear 
back to shore to be discarded.
    Response: This has been done in the Northeast Region, where this 
problem is of greatest concern.
    Comment 102: One commenter supported NMFS's decision to postpone 
further consideration of market incentives as a way to reduce bycatch.
    Response: NMFS will refer the matter of market incentives to the 
TRT for further discussion.
    Comment 103: NMFS should conduct a Regulatory Flexibility Analysis 
(RFA) of the ALWTRP regulations.
    Response: NMFS conducted a regulatory impact review of the 
provisions of the interim final rule, describing the impact it was 
expected to have on small entities. Based on that review, NMFS 
certified that a Final Regulatory Flexibility Analysis (FRFA) was not 
necessary. The thresholds for Regulatory Flexibility Analysis 
determinations are: 5 percent loss of revenue for 20 percent of the 
participants; 5 percent increase in operations costs for 20 percent of 
the participants; and two percent of participants cease operations. 
None of these thresholds were met by the interim final rule.
    Although no information was provided that called into question the 
conclusions of the Regulatory Impact Review for the interim final rule, 
NMFS conducted a FRFA for this rule. The FRFA concluded that the final 
rule of the ALWTRP would not constitute a significant regulatory 
action. In this final rule, the overall costs of compliance for the 
affected fisheries are expected to be less than for the interim final 
rule, because the gear marking requirement will apply to substantially 
fewer vessels.
    The regulations in this final rule were also evaluated for purposes 
of E.O. 12866. It was determined that they would not have an annual 
impact on the economy of $100M or more and would not adversely affect 
the productivity, environment, public health or safety, or state, 
local, or tribal governments or communities in the long run. The final 
rule does not interfere with an action planned by another agency. It 
does not raise any novel legal and policy issues because it is 
implementing the provisions of the 1994 Amendments to the MMPA and the 
regulations already set in place to promulgate that statute.

Classification

    An environmental assessment (EA) describing the impacts to the 
human environment that would result from the implementation of the 
ALWTRP was prepared for the interim final rule. The conclusion of that 
EA was that the action would pose no significant impact. There were no 
comments received disputing this conclusion. Because this final rule is 
substantially the same as the interim final rule, no further EA has 
been carried out.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IFRA) 
that described the impact the proposed rule was expected to have on 
small entities. The conclusion of this IFRA was that the economic 
impact on small entities was likely to be significant. This was due to 
the gear modifications which would have been required by the proposed 
rule. The interim final rule was substantially different than the 
proposed rule, which mitigated most of the economic consequences of the 
proposed rule. NMFS prepared a Regulatory Impact Review for the interim 
final rule. Based on that review, NMFS certified that the action would 
not have a significant economic impact on a substantial number of small 
entities, nonetheless, a Final Regulatory Flexibility Analysis (FRFA) 
was prepared for the final rule.
    NMFS received only one public comment relating to the certification 
of the interim final rule. The commenter questioned the conclusion that 
the interim final rule would not have a significant impact on small 
businesses and asked that NMFS prepare a Regulatory Flexibility 
Analysis. No economic information was provided disputing the 
conclusions of the Regulatory Impact Review for the interim final rule. 
The final rule makes only minor changes to the interim final rule. 
However, to ensure that this final rule's economic impacts on small 
entities are fully considered, NMFS has prepared a FRFA. A copy of this 
analysis is available from NMFS (see ADDRESSES).
    The final rule is expected to have an economic impact on 
approximately 1100 lobster fishing operations and approximately 160 
gillnet vessels (substantially fewer than the interim final rule). 
Based on 1996 logbook data, 8 gillnet vessels will have their revenue 
reduced by more than 5 percent. Approximately 72 lobster fishing 
operations may see their costs increase more than 10 percent. It is 
unlikely that 2 percent of participants will cease operations as a 
result of this action. The objectives and need for this action are 
described above in the preamble. In this final rule, the gear marking 
requirement will apply to substantially fewer vessels, thereby 
mitigating the overall economic burden of the interim final rule.
    This final rule does not constitute a significant regulatory action 
under Executive Order 12866. (1) The action will not have an annual 
effect on the economy of more than $100 million. (2) The action will 
not adversely affect in a material way the economy, productivity, 
competition and jobs. (3) The action will not affect competition, jobs, 
the environment, public health or safety, or state, local or tribal 
governments and communities. (4) The action will not create an 
inconsistency or otherwise interfere with an action taken or planned by 
another agency. No other agency has indicated that it plans an action 
that will affect these fisheries. (5) The action will not materially 
alter the budgetary impact of entitlement, grants, user fees, or loan 
programs or the rights and obligations of their recipients. (6) The 
action does not raise novel legal or policy issues.
    NMFS determined that this action is consistent to the maximum 
extent practicable with the approved coastal management program of the 
U.S. Atlantic coastal states. This determination was submitted for 
review by the responsible state agencies under section 307 of the 
Coastal Zone

[[Page 7551]]

Management Act. The NMFS letter to the states indicated that responses 
regarding concurrence were due within 45 days of receipt of the letter 
and that lack of a response would be an assumption of concurrence with 
the consistency determination. No state disagreed with our conclusion 
that the ALWTRP is consistent with the approved coastal management 
program for that state.
    This action contains two collection-of-information requirements and 
therefore is subject to the provisions of the Paperwork Reduction Act: 
(1) Persons setting lobster or gillnet gear in some areas of the 
Atlantic Ocean would be required to paint or otherwise mark their gear 
with two color codes, one color designating the type of gear, the other 
designating the area where the gear is set. These marking requirements 
apply in right whale critical habitats and in areas described below as 
the southeast Observer Area and as the SB/JL Restricted Area. The goal 
of this collection of information is to obtain more information on 
where large whales are being entangled and on what kind of gear is 
responsible for the entanglement. (2) From November 15 to March 31, 
persons netting for sharks in Atlantic waters off Florida and Georgia 
would be required to call NMFS 48 hours prior to departure to arrange 
for an observer. The purpose of this collection of information is to 
allow NMFS to coordinate fisheries observer coverage of the fishery.
    The affected public includes business and other for-profit 
organizations (persons participating in the lobster and gillnet 
fisheries in specified areas). The gear marking requirements are 
expected to affect 1100 lobster fishermen and 160 gillnet fishermen. 
The call-in requirement in the southeast U.S. Observer Area is expected 
to affect 30 shark gillnet fishermen.
    In a Federal Register document on June 5, 1998 (63 FR 30720), the 
public was asked to comment on the estimates of time and cost of 
compliance with the gear marking and call-in requirements. No comments 
were received during the comment period, which closed on August 4, 
1998. The OMB has approved the gear marking requirement (OMB Control 
Number: 0648-0364). The call-in requirement is part of a general 
requirement for the shark industry and was approved earlier by OMB (OMB 
Control Number: 0648-0205). Notwithstanding any other provision of law, 
no person is required to respond to nor shall any person be subject to 
a penalty for failure to comply with a collection of information 
subject to the requirements of the Paperwork Reduction Act unless that 
collection of information displays a currently valid OMB control 
number.
    The ALWTRP incorporates the reasonable and prudent alternatives of 
the three ESA Section 7 Biological Opinions on commercial fisheries for 
lobster, multispecies, and sharks, which remove the threat of jeopardy 
to the northern right whale. Furthermore, the ALWTRP incorporates other 
measures to reduce impacts to the other species of endangered large 
whales. In addition, a Section 7 consultation was conducted on the 
interim final rule implementing the ALWTRP. This consultation concluded 
that operation of the fisheries under the elements of this plan may 
affect but will not jeopardize the continued existence of any listed 
species under NMFS jurisdiction. This final rule incorporates few 
changes to the scope of the action considered in the biological opinion 
(July 15, 1997) prepared for the interim final rule, and a 
determination was made that no further consultation under Section 7 was 
necessary at this time. Therefore, all agency responsibilities under 
the ESA have been addressed.
    Several marine mammal species, other than those listed as 
endangered or threatened under the ESA, are known to become entangled 
in gillnet and lobster gear. However, NMFS has determined that this 
action does not exacerbate the existing problem. Therefore, this action 
will not have an adverse impact on the marine mammals.
    This rule does not contain policies with federalism implications 
sufficient to warrant preparation of a federalism assessment under 
Executive Order 12612.
    NMFS has complied with the Administrative Procedures Act through 
publishing a proposed rule with a request for written comments, and by 
holding 12 public hearings in the action area of this rule. Because of 
substantial changes to the proposed rule based on public comments and 
the Gear Advisory Group, NMFS then published an interim final rule to 
allow for further comment on the plan. This final rule addresses the 
comments received on the interim final rule.

References

    Barlow, J. et al. 1995. U.S. Marine Mammal Stock Assessments: 
Guidelines for preparations, background, and a summary of the 1995 
assessments. NOAA Technical Memorandum NMFS-OPR-6. U.S. Department of 
Commerce, Washington, DC, p. 73.
    Knowlton, A.R. et al. 1994. Reproduction in North Atlantic right 
whales (Eubalaena glacialis). Can. J. Zool. 72:1287-1305.
    Kraus, S.D. 1990. Rates and potential causes of mortality in North 
Atlantic right whales (Eubalaena glacialis). Mar. Mamm. Sci. 6(4):278-
291.
    Smith, T.D. et al. 1998. An ocean-basin-wide mark-recapture study 
of the North Atlantic humpback whale (Megaptera novaeangliae). Mar. 
Mamm. Sci. (in press).

Waring, G.T. et al. 1997. U.S. Atlantic and Gulf of Mexico Marine 
Mammal Stock Assessments--1996. NOAA Technical Memorandum NMFS-NE-
114. U.S. Department of Commerce, Northeast Fisheries Science 
Center, Woods Hole, MA. p. 250.
Waring, G.T. et al. in prep. U.S. Atlantic and Gulf of Mexico Marine 
Mammal Stock Assessments--1998. Submitted for public comment.
Team Report. 1997. Draft Atlantic Large Whale Take Reduction Report. 
Report prepared by the Atlantic Large Whale Take Reduction Team and 
submitted to the National Marine Fisheries Service February 4, 1997. 
p. 79.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and record-keeping 
requirements.

    Dated: February 8, 1999.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

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

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

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

    2. In Sec. 229.2, definitions of ``Sink gillnet'', ``Lobster pot'', 
and ``Lobster pot trawl'' are removed. Definitions of ``Anchored 
gillnet'', ``Driftnet, drift gillnet or drift entanglement gear'', 
``Gillnet'', ``Groundline'', ``Offshore lobster waters'', ``Strikenet 
or to fish with strikenet gear'', ``Tended gear or tend'', and ``Weak 
Link'' are revised, and the definitions of ``Lobster trap'', ``Lobster 
trap trawl'', ``Night'', ``Shark gillnetting'', ``Sink gillnet or stab 
net'' and ``To strikenet for sharks'' are added in alphabetical order 
to read as follows:


Sec. 229.2  Definitions.

* * * * *
    Anchored gillnet means any gillnet gear, including a sink gillnet 
or stab net,

[[Page 7552]]

that is set anywhere in the water column and which is anchored, secured 
or weighted to the bottom of the sea. Also called a set gillnet.
* * * * *
    Driftnet, drift gillnet, or drift entanglement gear means a gillnet 
or gillnets that is/are unattached to the ocean bottom and not 
anchored, secured or weighted to the bottom, regardless of whether 
attached to a vessel.
* * * * *
    Gillnet means fishing gear consisting of a wall of webbing (meshes) 
or nets, designed or configured so that the webbing (meshes) or nets 
are placed in the water column, usually held approximately vertically, 
and are designed to capture fish by entanglement, gilling, or wedging. 
The term ``gillnet'' includes gillnets of all types, including but not 
limited to sink gillnets, other anchored gillnets (e.g. stab and set 
nets), and drift gillnets. Gillnets may or may not be attached to a 
vessel.
    Groundline, with reference to lobster trap gear, means a line 
connecting lobster traps in a lobster trap trawl, and, with reference 
to gillnet gear, means a line connecting a gillnet or gillnet bridle to 
an anchor or buoy line.
* * * * *
    Lobster trap means any trap, pot or other similar type of enclosure 
that is placed on the ocean bottom and is designed to or is capable of 
catching lobsters. This definition includes but is not limited to 
lobster pots, black sea bass pots and scup pots.
    Lobster trap trawl means two or more lobster traps attached to a 
single groundline.
* * * * *
    Night means any time between one half hour before sunset and one 
half hour after sunrise.
* * * * *
    Offshore lobster waters comprises entirely federal waters as 
defined by the area bounded by straight lines connecting the following 
points, in the order stated, except for waters in the Great South 
Channel critical right whale habitat:

------------------------------------------------------------------------
                                                          Longitude (
              Point                 Latitude ( deg.N)        deg.W)
------------------------------------------------------------------------
A................................  43 deg. 58'         67 deg. 22'
B................................  43 deg. 41'         68 deg. 00'
C................................  43 deg. 12.5'       69 deg. 00'
D................................  42 deg. 49'         69 deg. 40'
E................................  42 deg. 15.5'       69 deg. 40'
F................................  42 deg. 10'         69 deg. 56'
K................................  41 deg. 10'         69 deg. 06.5'
N................................  40 deg. 45.5'       71 deg. 34'
M................................  40 deg. 27.5'       72 deg. 14'
U................................  40 deg. 12.5'       72 deg. 48.5'
V................................  39 deg. 50'         73 deg. 01'
X................................  38 deg. 39.5'       73 deg. 40'
Y................................  38 deg. 12'         73 deg. 55'
Z................................  37 deg. 12'         74 deg. 44'
ZA...............................  36 deg. 33'         74 deg. 47'
------------------------------------------------------------------------

From point ``ZA'' east to the EEZ boundary and thence along the seaward 
EEZ boundary to point ``A''.
* * * * *
    Shark gillnetting means to fish a gillnet in waters south of the 
South Carolina/Georgia border with webbing of 5 inches or greater 
stretched mesh.
    Sink gillnet or stab net means any gillnet, anchored or otherwise, 
that is designed to be, or is fished on or near the bottom in the lower 
third of the water column.
    Strikenet or to fish with strikenet gear means a gillnet that is 
designed so that, when it is deployed, it encircles or encloses an area 
of water either with the net or by utilizing the shoreline to complete 
encirclement, or to fish with such a net and method.
* * * * *
    Tended gear or tend means fishing gear that is physically attached 
to a vessel in a way that is capable of harvesting fish, or to fish 
with gear attached to the vessel.
    To strikenet for sharks means to fish with strikenet gear in waters 
south of the South Carolina/Georgia border with webbing of 5 inches or 
greater stretched mesh.
* * * * *
    Weak link means a breakable component of gear that will part when 
subject to a certain tension load.
    3. In Sec. 229.3, paragraphs (g) through (j) are revised to read as 
follows:


Sec. 229.3  Prohibitions.

* * * * *
    (g) It is prohibited to fish with lobster trap gear in the areas 
and for the times specified in Sec. 229.32(c)(3) through (c)(9) unless 
the lobster trap gear complies with the closures, marking requirements, 
modifications, and restrictions specified in Sec. 229.32(c)(1) through 
(c)(10).
    (h) It is prohibited to fish with anchored gillnet gear in the 
areas and for the times specified in Sec. 229.32(d)(2) through (d)(7) 
unless that gillnet gear complies with the closures, marking 
requirements, modifications, and restrictions specified in 
Sec. 229.32(d)(1) through (d)(8).
    (i) It is prohibited to fish with drift gillnets in the areas and 
for the times specified in Sec. 229.32(e)(1) unless the drift gillnet 
gear complies with the restrictions specified in Sec. 229.32(e)(1).
    (j) It is prohibited to fish with shark gillnet gear in the areas 
and for the times specified in Sec. 229.32(f)(1) and (3) unless the 
gear meets the marking requirements specified in Sec. 229.32(f)(2) and 
complies with the restrictions and requirements specified in 
229.32(f)(1) and (f)(3).
* * * * *
    4. Section 229.32, in subpart C, is revised to read as follows:


Sec. 229.32  Atlantic large whale take reduction plan regulations.

    (a)(1) Regulated waters. The regulations in this section apply to 
all U.S. waters in the Atlantic except for the areas exempted in 
paragraph (a)(2) of this section.
    (2) Exempted waters. The regulations in this section do not apply 
to waters landward of the first bridge over any embayment, harbor, or 
inlet and to waters landward of the following lines:
Rhode Island
41 deg. 27.99' N 71 deg. 11.75' W TO 41 deg. 28.49' N 71 deg. 14.63' W
    (Sakonnet River)
41 deg. 26.96' N 71 deg. 21.34' W TO 41 deg. 26.96' N 71 deg. 25.92' W
    (Narragansett Bay)
41 deg. 22.41' N 71 deg. 30.80' W TO 41 deg. 22.41' N 71 deg. 30.85' W
    (Pt. Judith Pond Inlet)
41 deg. 21.31' N 71 deg. 38.30' W TO 41 deg. 21.30' N 71 deg. 38.33' W
    (Ninigret Pond Inlet)
41 deg. 19.90' N 71 deg. 43.08' W TO 41 deg. 19.90' N 71 deg. 43.10' W
    (Quonochontaug Pond Inlet)
41 deg. 19.66' N 71 deg. 45.75' W TO 41 deg. 19.66' N 71 deg. 45.78' W
    (Weekapaug Pond Inlet)
New York
    West of the line from the Northern fork of the eastern end of Long 
Island, NY (Orient Pt.) to Plum Island to Fisher's Island to Watch 
Hill, RI. (Long Island Sound)

41 deg. 11.40' N 72 deg. 09.70' W TO 41 deg. 04.50' N 71 deg. 51.60' W
    (Gardiners Bay)
40 deg. 50.30' N 72 deg. 28.50' W TO 40 deg. 50.36' N 72 deg. 28.67' W
    (Shinnecock Bay Inlet)
40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 45.30' W
    (Moriches Bay Inlet)
40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 18.56' W
    (Fire Island Inlet)
40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 35.22' W
    (Jones Inlet)

[[Page 7553]]

New Jersey
39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg. 06.20' W
    (Barnegat Inlet)
39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg. 19.75' W
    (Beach Haven to Brigantine Inlet)
38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg. 51.90' W
    (Cape May Inlet)
39 deg. 16.70' N 75 deg. 14.60' W TO 39 deg. 11.25' N 75 deg. 23.90' W
    (Delaware Bay)
Maryland/Virginia
38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 05.25' W
    (Ocean City Inlet)
37 deg. 52.50' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' W
    (Chincoteague to Ship Shoal Inlet)
37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 49.60' W
    (Little Inlet)
37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.50' W
    (Smith Island Inlet)
North Carolina to Florida
    All marine and tidal waters landward of the 72 COLREGS demarcation 
line (International Regulations for Preventing Collisions at Sea, 
1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts 1:80,000 
scale), and as described in 33 CFR part 80.
    (b) Gear marking provisions--(1)(i) Specified gear. Specified 
fishing gear consists of lobster trap gear and gillnet gear set in 
specified areas.
    (ii) Specified areas. Specified areas are: Southeast U.S. Observer 
Area, Great South Channel Restricted Areas (including the Great South 
Channel Sliver Restricted Area), Cape Cod Bay Restricted Area, and the 
Stellwagen Bank/Jeffreys Ledge Restricted Area.
    (iii) Requirement. From January 1, 1999, and as otherwise required 
in paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii), 
(d)(3)(ii), (d)(4)(ii), (d)(5)(ii), and (f)(2) of this section, any 
person who owns or fishes with specified fishing gear in specified 
areas must mark that gear as specified in paragraphs (b)(2) and (b)(3) 
of this section, unless otherwise required by the Assistant 
Administrator under paragraph (g) of this section.
    (2) Color code. Specified gear must be marked with the appropriate 
colors to designate gear-types and areas as follows:

Lobster trap gear--red
Gillnet gear--green
Southeast U.S. Observer Area--blue
Great South Channel Restricted Areas--yellow
Cape Cod Bay Restricted Area--orange
Stellwagen Bank/Jeffreys Ledge Area--black

    (3) Markings. All specified gear in specified areas must be marked 
with two color codes, one designating the gear type, the other 
indicating the area where the gear is set. Each color of the color 
codes must be permanently marked on or along the line or lines 
specified under paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), 
(d)(2)(ii), (d)(3)(ii), (d)(4)(ii), (d)(5)(ii), and (f)(2) of this 
section. Each color mark of the color codes must be clearly visible 
when the gear is hauled or removed from the water. Each mark must be at 
least 4 inches (10.2 cm) long. The two color marks must be placed 
within 6 inches (15.2 cm) of each other. If the color of the rope is 
the same as or similar to a color code, a white mark may be substituted 
for that color code. (For example, buoy lines of gillnet gear set in 
the Great South Channel Sliver Restricted Area must have a yellow mark 
and a green mark, each at least 4 inches (10.2 cm) long, with the 
yellow and green marks placed within 6 inches (15.2 cm) of each other. 
If the buoy line is yellow, the gear must have white and green marks.) 
In marking or affixing the color code, the line may be dyed, painted, 
or marked with thin colored whipping line, thin colored plastic or heat 
shrink tubing, or other material, or a thin line may be woven into or 
through the line, or the line may be marked as approved in writing by 
the Assistant Administrator.
    (4) Changes to requirements. If the Assistant Administrator revises 
the gear marking requirements under paragraph (g) of this section, the 
gear must be marked in compliance with those requirements.
    (c) Restrictions applicable to lobster trap gear in regulated 
waters--(1) No line floating at the surface. No person may fish with 
lobster trap gear that has any portion of the buoy line floating at the 
surface at any time, except that, if more than one buoy is attached to 
a single buoy line or if a high flyer and a buoy are used together on a 
single buoy line, floating line may be used between these objects.
    (2) No wet storage of gear. Lobster traps must be hauled out of the 
water at least once in 30 days.
    (3) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay 
restricted area consists of the Cape Cod Bay Critical Habitat area 
specified under 50 CFR 216.13(b), unless the Assistant Administrator 
changes that area in accordance with paragraph (g) of this section.
    (ii) Gear marking requirements. No person may fish with lobster 
trap gear in the Cape Cod Bay Restricted Area unless that gear is 
marked according to the gear marking code specified under paragraph (b) 
of this section. All buoy lines used in connection with lobster trap 
gear must be marked within 2 ft (0.6 m) of the top of the buoy line (or 
2 ft (0.6 m) below a weak link) and midway along the length of the buoy 
line.
    (iii) Winter restricted period. The winter restricted period for 
this area is from January 1 through May 15 of each year. During the 
winter restricted period, no person may fish with lobster trap gear in 
the Cape Cod Bay Restricted Area unless that person's gear complies 
with the following requirements:
    (A) Weak links--All buoy lines are attached to the buoy with a weak 
link. The breaking strength of this weak link must be no more than 500 
lb (226.7 kg).
    (B) Multiple trap trawls--All traps are set in either a two-trap 
string or in a trawl of four or more traps. Single traps and three trap 
trawls are not allowed. A two-trap string must have only one buoy line.
    (C) Sinking buoy lines--All buoy lines are comprised of sinking 
line except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line.
    (D) Sinking ground line--All ground lines are made entirely of 
sinking line.
    (iv) Other restricted period. From May 16 through December 31 of 
each year, no person may fish with lobster trap gear in the Cape Cod 
Bay Restricted Area unless that person's gear complies with at least 
two of the characteristics of the Lobster Take Reduction Technology 
List in paragraph (c)(10) of this section. The Assistant Administrator 
may revise this restricted period in accordance with paragraph (g) of 
this section.
    (4) Great South Channel Restricted Lobster Area--(i) Area. The 
Great South Channel restricted area consists of the Great South Channel 
Critical Habitat area specified under 50 CFR 216.13(a) unless the 
Assistant Administrator changes that area in accordance with paragraph 
(g) of this section.
    (ii) Gear marking requirements. No person may fish with lobster 
trap gear in the Great South Channel Restricted Area unless that gear 
is marked according to the gear marking code specified under paragraph 
(b) of this section. All buoy lines used in connection with lobster 
trap gear must be marked within 2 ft (0.6 m) of the top

[[Page 7554]]

of the buoy line (or 2 ft (0.6 m) below a weak link) and midway along 
the length of the buoy line.
    (iii) Spring closed period. The spring closed period for this area 
is from April 1 through June 30 of each year unless the Assistant 
Administrator revises the closed period in accordance with paragraph 
(g) of this section. During the spring closed period, no person may 
fish with or set lobster trap gear in the Great South Channel 
restricted lobster area unless the Assistant Administrator specifies 
gear modifications or alternative fishing practices in accordance with 
paragraph (g) of this section and the gear or practices comply with 
those specifications.
    (iv) Other restricted period. From July 1 through March 31 no 
person may fish with lobster trap gear in the Great South Channel 
Restricted Lobster Area unless that person's gear complies with at 
least two of the characteristics of the Lobster Take Reduction 
Technology List in paragraph (c)(10) of this section. The Assistant 
Administrator may revise this restricted period in accordance with 
paragraph (g) of this section.
    (5) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge restricted area consists of all Federal 
waters of the Gulf of Maine that lie to the south of the 43 deg.15' N 
lat. line and west of the 70 deg. W long. line, except for right whale 
critical habitat, unless the Assistant Administrator changes that area 
in accordance with paragraph (g) of this section.
    (ii) Gear marking requirements. No person may fish with lobster 
trap gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless 
that gear is marked according to the gear marking code specified under 
paragraph (b) of this section. All buoy lines used in connection with 
lobster trap gear must be marked within 2 ft (0.6 m) of the top of the 
buoy line (or 2 ft (0.6 m) below a weak link) and midway along the 
length of the buoy line.
    (iii) Gear requirements. No person may fish with lobster trap gear 
in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that 
person's gear complies with at least two of the characteristics of the 
Lobster Take Reduction Technology List in paragraph (c)(10) of this 
section. The Assistant Administrator may revise this requirement in 
accordance with paragraph (g) of this section.
    (6) Northern offshore lobster waters--(i) Area. The northern 
offshore lobster waters area includes all offshore lobster waters (as 
defined in Sec. 229.2) north of 41 deg.30 N lat., except for areas 
included in the Great South Channel Critical Habitat.
    (ii) Gear requirements. No person may fish with lobster trap gear 
in the northern offshore lobster waters area unless that person's gear 
complies with at least one of the characteristics of the Lobster Take 
Reduction Technology List in paragraph (c)(10) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (7) Southern offshore lobster waters--(i) Area. The southern 
offshore lobster waters area includes all offshore lobster waters (as 
defined in Sec. 229.2) south of 41 deg.30 N lat., except for areas 
included in the Great South Channel Critical Habitat.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with lobster trap gear in the southern offshore lobster waters 
area unless that person's gear complies with at least one of the 
characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(10) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (8) Northern inshore lobster waters--(i) Area. Northern inshore 
lobster waters consist of all inshore lobster waters (as defined in 
Sec. 229.2) north of 41 deg.30' N lat., except the Cape Cod Bay 
restricted area, Great South Channel restricted area and the Stellwagen 
Bank/Jeffreys Ledge restricted area.
    (ii) Gear Requirements. No person may fish with lobster trap gear 
in the northern inshore lobster waters area unless that person's gear 
complies with at least one of the characteristics of the Lobster Take 
Reduction Technology List in paragraph (c)(10) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (9) Southern inshore lobster waters--(i) Area. The southern inshore 
lobster waters consist of all inshore lobster waters (as defined in 
Sec. 229.2) south of 41 deg.30' N lat., except the Great South Channel 
restricted area.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with lobster trap gear in the southern inshore lobster waters 
area unless that person's gear complies with at least one of the 
characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(10) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (10) Lobster Take Reduction Technology List. The following gear 
characteristics comprise the Lobster Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
    (ii) All buoys are attached to the buoy line with a weak link 
having a maximum breaking strength of up to 1100 lb (498.8 kg). Weak 
links may include swivels, plastic weak links, rope of appropriate 
diameter, hog rings, rope stapled to a buoy stick, or other materials 
or devices approved in writing by the Assistant Administrator.
    (iii) For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line with a weak link having a maximum breaking 
strength of up to 3780 lb (1714.3 kg).
    (iv) For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line by a section of rope no more than three 
fourths the diameter of the buoy line.
    (v) All buoy lines are composed entirely of sinking line.
    (vi) All ground lines are made of sinking line.
    (d) Restrictions applicable to anchored gillnet gear--(1) No line 
floating at the surface. No person may fish with anchored gillnet gear 
that has any portion of the buoy line floating at the surface at any 
time, except that, if more than one buoy is attached to a single buoy 
line or if a high flyer and a buoy are used together on a single buoy 
line, floating line may be used between these objects.
    (2) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay 
Restricted Area consists of the Cape Cod Bay Critical Habitat area 
specified under 50 CFR 216.13(b), unless the Assistant Administrator 
changes that area under paragraph (g) of this section.
    (ii) Gear marking requirements. No person may fish with anchored 
gillnet gear in the Cape Cod Bay Restricted Area unless that gear is 
marked according to the gear marking code specified under paragraph (b) 
of this section. All buoy lines used in connection with anchored 
gillnets must be marked within 2 ft (0.6 m) of the top of the buoy line 
(or 2 ft (0.6 m) below a weak link) and midway along the length of the 
buoy line.
    (iii) Winter restricted period. The winter restricted period for 
this area is from January 1 through May 15 of each year, unless the 
Assistant Administrator revises the restricted period under paragraph 
(g) of this section. During the winter restricted period, no person may 
fish with anchored gillnet gear in the Cape Cod Bay Restricted Area 
unless the Assistant Administrator specifies gear modifications or 
alternative fishing practices under paragraph (g) of this section and 
the gear or practices comply with those specifications. The Assistant

[[Page 7555]]

Administrator may waive this closure for the remaining portion of any 
year through a notification in the Federal Register if NMFS determines 
that right whales have left the critical habitat and are unlikely to 
return for the remainder of the season.
    (iv) Other restricted period. From May 16 through December 31 of 
each year, no person may fish with anchored gillnet gear in the Cape 
Cod Bay Restricted Area unless that person's gear complies with at 
least two of the characteristics of the Gillnet Take Reduction 
Technology List in paragraph (d)(8) of this section. The Assistant 
Administrator may revise this restricted period in accordance with 
paragraph (g) of this section.
    (3) Great South Channel Restricted Gillnet Area--(i) Area. The 
Great South Channel Restricted Gillnet Area consists of the area 
bounded by lines connecting the following four points: 41 deg.02.2' N/
69 deg.02' W, 41 deg.43.5' N/69 deg.36.3' W, 42 deg.10' N/68 deg.31' W, 
and 41 deg.38' N/68 deg.13' W, unless the Assistant Administrator 
changes that area in accordance with paragraph (g) of this section. 
This area includes the Great South Channel critical habitat area 
specified under 50 CFR 216.13(a), except for the ``sliver area'' 
identified in paragraph (d)(4) of this section.
    (ii) Gear marking requirements. No person may fish with anchored 
gillnet gear in the Great South Channel Restricted Gillnet Area unless 
that gear is marked according to the gear marking code specified under 
paragraph (b) of this section. All buoy lines used in connection with 
anchored gillnets must be marked within 2 ft (0.6 m) of the top of the 
buoy line (or 2 ft (0.6 m) below a weak link) and midway along the 
length of the buoy line.
    (iii) Spring closed period. The spring closed period for this area 
is from April 1 through June 30 of each year unless the Assistant 
Administrator revises the closed period in accordance with paragraph 
(g) of this section. During the spring closed period, no person may set 
or fish with anchored gillnet gear in the Great South Channel 
Restricted Gillnet Area unless the Assistant Administrator specifies 
gear modifications or alternative fishing practices in accordance with 
paragraph (g) of this section and the gear or practices comply with 
those specifications.
    (iv) Other restricted period. From July 1 through March 31 no 
person may fish with anchored gillnet gear in the Great South Channel 
Restricted Gillnet Area unless that person's gear complies with at 
least two of the characteristics of the Gillnet Take Reduction 
Technology List in paragraph (d)(8) of this section. The Assistant 
Administrator may revise this restricted period in accordance with 
paragraph (g) of this section.
    (4) Great South Channel Sliver Restricted Area--(i) Area. The Great 
South Channel Sliver Restricted Area consists of the area bounded by 
lines connecting the following points: 41 deg.02.2' N/69 deg.02' W, 
41 deg.43.5' N/69 deg.36.3' W, 41 deg.40' N/69 deg.45' W, and 
41 deg.00' N/69 deg.05' W, unless the Assistant Administrator changes 
that area in accordance with paragraph (g) of this section.
    (ii) Gear marking requirements. No person may fish with anchored 
gillnet gear in the Great South Channel Sliver Restricted Area unless 
that gear is marked according to the gear marking code specified under 
paragraph (b) of this section. All buoy lines used in connection with 
anchored gillnets must be marked within 2 ft (0.6 m) of the top of the 
buoy line (or 2 ft below a weak link) and midway along the length of 
the buoy line.
    (iii) Gear requirements. No person may fish with anchored gillnet 
gear in the Great South Channel Sliver Restricted Area unless that 
person's gear complies with at least two of the characteristics of the 
Gillnet Take Reduction Technology List in paragraph (d)(8) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (5) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge Restricted Area consists of all Federal 
waters of the Gulf of Maine that lie to the south of the 43 deg.15' N 
lat. line and west of the 70 deg. W long. line, except right whale 
critical habitat, unless the Assistant Administrator changes that area 
in accordance with paragraph (g) of this section.
    (ii) Gear marking requirements. No person may fish with anchored 
gillnet gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area 
unless that gear is marked according to the gear marking code specified 
under paragraph (b) of this section. All buoy lines used in connection 
with anchored gillnets must be marked within 2 ft (0.6 m) of the top of 
the buoy line (or 2 ft below a weak link) and midway along the length 
of the buoy line.
    (iii) Gear requirements. No person may fish with anchored gillnet 
gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that 
person's gear complies with at least two of the characteristics of the 
Gillnet Take Reduction Technology List in paragraph (d)(8) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (6) Other Northeast Waters Area--(i) Area. The ``Other Northeast 
Waters Area'' consists of all northeast waters (as defined in 
Sec. 229.2) except for the Cape Cod Bay Restricted Area, the Great 
South Channel Restricted Gillnet Area, Great South Channel Sliver 
Restricted Area and the Stellwagen Bank/Jeffreys Ledge Restricted Area.
    (ii) Gear requirements. No person may fish with anchored gillnet 
gear in the Other Northeast Waters Area unless that person's gear 
complies with at least one of the characteristics of the Gillnet Take 
Reduction Technology List in paragraph (d)(8) of this section. The 
Assistant Administrator may revise these requirements in accordance 
with paragraph (g) of this section.
    (7) Mid-Atlantic Coastal Waters Area--(i) Area. The mid-Atlantic 
Coastal Waters Area is defined in Sec. 229.2.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with anchored gillnets in the 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)(8) of this section. The Assistant Administrator may 
revise these requirements in accordance with paragraph (g) of this 
section.
    (8) Gillnet Take Reduction Technology List. The following gear 
characteristics comprise the Gillnet Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
    (ii) All buoys are attached to the buoy line with a weak link 
having a maximum breaking strength of up to 1100 lb (498.8 kg). Weak 
links may include swivels, plastic weak links, rope of appropriate 
diameter, hog rings, rope stapled to a buoy stick, or other materials 
or devices approved in writing by the Assistant Administrator.
    (iii) Weak links with a breaking strength of up to 1100 lb (498.8 
kg) are installed in the float rope between net panels.
    (iv) All buoy lines are composed entirely of sinking line.
    (e) Restrictions applicable to mid-Atlantic driftnet gear--(1) 
Restrictions. From December 1 through March 31 of the following year, 
no person may fish with driftnet gear at night in the mid-Atlantic 
coastal waters area unless that gear is tended. During that time, 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 
before a vessel returns to port. The Assistant Administrator

[[Page 7556]]

may revise these requirements in accordance with paragraph (g) of this 
section.
    (f) Restrictions applicable to shark gillnet gear--(1) Management 
areas--(i) Southeast U.S. 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) Southeast U.S. observer area. The southeast U.S. observer area 
consists of the southeast U.S. 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.
    (2) Gear marking requirements. From November 15 through March 31 of 
the following year, no person may fish with gillnet gear in the 
southeast U.S. observer area unless that gear is marked according to 
the gear marking code specified under paragraph (b) of this section. 
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 
15, 1999, each net panel must be marked along both the float line and 
the lead line at least once every 100 yards (92.4 m).
    (3) Restrictions--(i) Observer requirement. No person may fish with 
shark gillnet gear in the southeast U.S. observer area from November 15 
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 15 through March 31 of the following year, no person may 
fish with shark gillnet gear aboard that vessel in the southeast U.S. 
observer area unless an observer is on board that vessel during the 
trip.
    (ii) Closure. Except as provided under paragraph (f)(3)(iii) of 
this section, no person may fish with shark gillnet gear in the 
southeast U.S. restricted area during the closed period. The closed 
period for this area is from November 15 through March 31 of the 
following year, unless the Assistant Administrator changes that closed 
period in accordance with paragraph (g) of this section.
    (iii) Special provision for strikenets. Fishing for sharks with 
strikenet gear is exempt from the restriction under paragraph 
(f)(3)(ii) 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, fin 
or minke whale.
    (D) If a right, humpback, fin or minke 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 
Area from April 1 through June 30, or in the Southeast U.S. Restricted 
Area from November 15 through March 31 as a result of an entanglement 
by lobster or gillnet gear 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).
    (2) Other special measures. The Assistant Administrator may revise 
the requirements of this section through a publication 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. 99-3507 Filed 2-10-99; 2:45 pm]
BILLING CODE 3510-22-P