[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Proposed Rules]
[Pages 49896-49908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24590]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. ; I.D. 092101B]
RIN 0648-AN88


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to amend the regulations that implement the 
Atlantic Large Whale Take Reduction Plan (ALWTRP) to provide further 
protection for large whales, with an emphasis on protective measures to 
benefit North Atlantic right whales.

DATES: Comments on this proposed rule must be postmarked or transmitted 
via facsimile by 5 p.m. Eastern Standard Time, on October 31, 2001. 
Comments transmitted via e-mail will not be accepted.

ADDRESSES: Send comments on this proposed rule to the Chief, Protected 
Resources Division, NMFS, 1 Blackburn Drive, Gloucester, MA 01930-2298. 
Copies of the Environmental Assessment can be obtained from the ALWTRP 
website listed under Electronic Access portion of this document. 
Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, 
progress reports on implementation of the ALWTRP, and table of the 
changes to the ALWTRP may be obtained by writing to Gregg LaMontagne, 
NMFS/Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930 or 
Katherine Wang, NMFS/Southeast Region, 9721 Executive Center Dr., St. 
Petersburg, FL 33702-2432.

FOR FURTHER INFORMATION CONTACT: Gregg LaMontagne, NMFS, Northeast 
Region, 978-281-9291; Katherine Wang, NMFS, Southeast Region, 727-570-
5312; or Patricia Lawson, NMFS, Office of Protected Resources, 301-713-
2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for this proposed rule and the 
take reduction planning process can be downloaded from the ALWTRP web 
site at http://www.nero.nmfs.gov/whaletrp/.

[[Page 49897]]

 Copies of the most recent marine mammal Stock Assessment Reports may 
be obtained by writing to Richard Merrick, NMFS, 166 Water St., Woods 
Hole, MA 02543 or can be downloaded from the Internet at http://www.nmfs.noaa.gov/prot_res/mammals/sa_rep/sar.html. Information on 
disentanglement events is available on the web page of NMFS' whale 
disentanglement contractor, the Center for Coastal Studies, http://www.coastalstudies.org/.

Background

    The ALWTRP was developed pursuant to the Marine Mammal Protection 
Act (MMPA) to reduce the level of serious injury/mortality of all 
whales in East Coast lobster trap and finfish gillnet fisheries. The 
background for the take reduction planning process and development of 
the ALWTRP is set out in the preamble to the proposed (62 FR 16519, 
April 7, 1997), interim final (62 FR 39157, July 22, 1997), final (64 
FR 7529, February 16, 1999), and interim final (65 FR 80368, December 
21, 2000) rules implementing the ALWTRP. Copies of these documents and 
supporting Environmental Assessments (EA) are available from the NMFS/
Northeast Region contact in the ADDRESSES section of this proposed 
rule.
    NMFS issued four biological opinions (BOs) on the multispecies, 
spiny dogfish, monkfish fishery management plans (FMPs) and lobster 
Federal regulations on June 14, 2001, in accordance with section 7 of 
the Endangered Species Act (ESA). The BOs concluded that all four of 
the fisheries jeopardized the continued existence of the North Atlantic 
right whale. The analysis that led to that conclusion incorporated the 
gear modifications in the December 2000 interim final rule that were 
recommended by the Northeast sub-group of the ALWTRT for Northeast 
gillnet and lobster trap fisheries. The reasonable and prudent 
alternative (RPA) in the June 14, 2001, BOs included additional gear 
modifications for the Northeast lobster trap fisheries and new gear 
modifications for the Mid-Atlantic and Southeast gillnet and lobster 
trap fisheries that were necessary to avoid jeopardizing the continued 
existence of North Atlantic right whales. The need for additional gear 
modifications in these fisheries had been considered by the ALWTRT, but 
not implemented by the December 2000 interim final rule.

Take Reduction Planning Activities in 2001

    Pursuant to section 118 (f)(7)(E) and (F) of the MMPA, NMFS has 
reconvened the ALWTRT periodically to monitor progress of the ALWTRP 
and to make recommendations for improvements. During the February 2000 
meeting, the ALWTRT split into sub-groups covering the Northeast, Mid-
Atlantic, and Southeast Areas. The recommendations of the Northeast 
sub-group were addressed by the December 2000 interim final rule. The 
Mid-Atlantic and Southeast sub-groups met on August 25, 2000, and July 
24, 2000, respectively and provided meeting summaries with 
recommendations to the entire ALWTRT for review. The recommendations of 
the Mid-Atlantic and Southeast sub-groups are addressed by this 
proposed rule.
    The ALWTRT met on June 27 and 28, 2001, to review the elements of 
the RPA required by the four BOs and recommend measures that would not 
only satisfy the requirements of the ESA and the four BOs, but would 
also satisfy the requirements of the MMPA. The MMPA provides goals of 
reducing takes in commercial fishing operations to below the potential 
biological removal (PBR) level within 6 months of the ALWTRP's 
implementation and the achievement of the zero mortality rate goal 
(ZMRG) within 5 years of ALWTRP implementation. For North Atlantic 
right whales, these two goals are essentially the same since PBR level 
is defined as zero. Consequently, additional entanglement risk 
reduction is needed to comply with the MMPA.
    This preamble describes modifications to the ALWTRP recommended by 
the ALWTRT, as well as other modifications NMFS deems necessary to 
satisfy requirements of the ESA and MMPA. Specifically, for the 
following areas, this proposed rule would:
    (1) Northern Inshore State Lobster Waters Area. Remove the option 
for lobstermen to use line with a diameter of 7/16 in (1.11 cm) or less 
for all buoy line, effective January 1, 2003, as an option in the 
Lobster Take Reduction Technology List applicable to fishing with 
lobster traps in this area, and allow the use of neutrally buoyant line 
in all buoy lines and ground lines.
    (2) Southern Nearshore Lobster Waters Area. Replace the Lobster 
Gear Technology List with the following mandatory gear modifications 
applicable year-round: (a) Installation of a weak link with a maximum 
breaking strength of 600 lb (272.4 kg) on the buoy line, and (b) 
installation of weak links in such a way that produces knotless ends if 
the weak link breaks;
    (3) Offshore Lobster Waters Area. Reduce the maximum breaking 
strength of weak links at all buoys from 3,780 lb (1,714.3 kg) to 2,000 
lb (906.9 kg); require the use of a weak link with a maximum breaking 
strength of 3,780 lb (1,714.3 kg) between the surface system (all 
buoys, highflyers, and associated lines) and the buoy line going to the 
trawl on the ocean floor; and require that fishers install weak links 
so that if the lines were to break, they would produce knotless ends on 
the line;
    (4) Gillnet Mid-Atlantic Coastal Waters Area. Replace the Gillnet 
Gear Technology List with requirements to install buoy line weak links 
with a maximum breaking strength of 1,100 lb (498.8 kg) and net panel 
weak links with a maximum breaking strength of 1,100 lb (498.8 kg) in 
the center of the floatline section on each 50-fathom net panel or 
every 25 fathoms on the floatline for longer panels; and require 
fishers to return all gillnet gear to port with their vessels, or if 
the gillnets are left at sea to continue fishing to secure the nets on 
each end with anchors that have the holding power of at least a 22-lb 
(10.0-kg) Danforth-style anchor; and
    (5) Southeast U.S. Restricted Area. Prohibit straight sets of 
gillnets at night between November 15 and March 31 in the Southeast 
U.S. Restricted Area, unless the exemption under Sec. 229.32 
(f)(3)(iii) applies.
    In addition, NMFS proposes the following changes to the Take 
Reduction Technology Lists:
    (1) For the Lobster Take Reduction Technology List. Remove the 
option for fishers to use 7/16 in (1.11 cm) diameter line for all buoy 
lines, effective January 1, 2003, and to amend the list to provide the 
option that all buoy lines and ground lines be composed entirely of 
sinking and/or neutrally buoyant line. For the Southern Nearshore 
Lobster Waters Area, this rule proposes to replace the requirement to 
choose options from the Lobster Take Reduction Technology List with a 
set of specific requirements.
    (2) For the Gillnet Take Reduction Technology List. Remove the 
option for fishers to use line of 7/16-in (1.11-cm) in diameter or less 
for all buoy lines, require installation of weak links with a maximum 
breaking strength of 1,100 lb (498.8 kg) in the center of the floatline 
of each net panel, and require that all buoy lines be composed entirely 
of sinking and/or neutrally buoyant line.

Changes Proposed for the Atlantic Large Whale Take Reduction Plan 
for Lobster Trap Gear

Northern Inshore State Lobster Waters Area

    Under the proposed rule the Northern Inshore State Lobster Waters 
Area

[[Page 49898]]

would be the only area to incorporate the Lobster Take Reduction 
Technology List into its area-specific regulations. The ALWTRP 
currently incorporates a Lobster Take Reduction Technology List from 
which fishers must choose at least one gear option in order to reduce 
risk of entanglement of whales in their gear. The ALWTRT discussed, but 
did not reach consensus on, removal of 7/16-in (1.11-cm) diameter line 
from the Lobster Take Reduction Technology List, which would reduce to 
three the number of options available to lobster trap fishers in this 
area. Nevertheless, NMFS proposes to remove the option for lobstermen 
to use line with a diameter of 7/16 in (1.11 cm) or less for all buoy 
line, effective January 1, 2003. For rationale, see the discussion 
under the Lobster Take Reduction Technology List heading later in this 
proposed rule. This proposed rule also would add the use of neutrally 
buoyant buoy lines and ground lines as options in the Lobster Take 
Reduction Technology List. See the discussion under ``Lobster Take 
Reduction Technology List'' for the rationale and justification of this 
proposed change.

Southern Nearshore Lobster Waters Area

    The Southern Nearshore Lobster Waters Area encompasses both the 
state- and Federal-water portions of EEZ Nearshore Management Areas 4 
and 5 (as defined in the American lobster fishery regulations at part 
697 of this title), excluding the waters currently exempted from 
regulation under the ALWTRP. This definition was adopted in the 
December 2000 interim final rule. To further reduce the risk of 
entanglement, NMFS is proposing, upon the recommendation of the Mid-
Atlantic sub-group, to replace the Lobster Take Reduction Technology 
List with the following mandatory gear modifications applicable year-
round for the Southern Nearshore Lobster Waters Area: (1) installation 
of a buoy line weak link with a maximum breaking strength of 600 lb 
(272.4 kg); and (2) installation of weak links in such a way that 
produces knotless ends if the weak link breaks. The weak link at the 
buoy increases the likelihood that a line sliding through a whale's 
mouth will break away quickly at the buoy before the whale begins to 
thrash and become more entangled. It is also expected to reduce risk in 
cases where a whale gets line wrapped around an appendage at a point 
close to the buoy. The weak link would only be effective when 
sufficient resistance is created by the weight and drag of the gear to 
exceed the breaking strength of the weak link.
    The required 1,100-lb (489.8-kg) breaking strength for weak links 
in the buoy line in the 1997 interim final rule was recommended by the 
Gear Advisory Group (GAG) at its original meeting in June 1997 as a 
``best available practice'' that could be used in the gear technology 
lists. The proposed buoy line weak link breaking strength of 600 lb 
(272.4 kg) for Southern nearshore lobster trap gear is based on 
information collected by the gear research program that suggests that 
the 1,100-lb (498.8-kg) breaking strength required in a previous rule 
is higher than necessary for the nearshore lobster trap/pot fisheries. 
Based on this information, the breaking strength of buoy line weak 
links in Northeast waters was reduced from 1,100 lb (498.8 kg) to 600 
lb (272.4 kg) in the December 2000 interim final rule. The proposed 
rule would require installation of buoy weak link with a maximum 
breaking strength of 600 lb (272.4 kg), which would make nearshore 
lobster gear regulations consistent throughout the range of the ALWTRP.
    The proposed rule would require installation of weak links in such 
a way that produces knotless ends in the line if the weak link were to 
break, because a weak link that breaks but leaves a knot or other 
obstruction at the end of the line leading down to the gear could 
become lodged in the whale's baleen or around an appendage. 
Observations of North Atlantic right whale jaw anatomy suggest that 
even a knotless line would be difficult to pull through a whale's mouth 
when the jaw is clamped shut. However, testing on baleen obtained from 
whale carcasses has shown that knots further hinder the passage of line 
through the baleen.

Offshore Lobster Waters Area

    The December 2000 interim final rule required that fishers reduce 
the risk of entanglements by installing a buoy line weak link with a 
maximum breaking strength of 3,780 lb (1,714.3 kg) in lobster trap gear 
set in the offshore lobster fishery area and ensuring that if the weak 
link were to break, it would produce a knotless end. In light of 
cooperative research between NMFS and the offshore lobster fishing 
industry using load cells and based on lessons learned from a recent 
whale entanglement, this proposed rule would reduce the maximum 
breaking strength of weak links at all buoys from 3,780 lb (1,714.3 kg) 
to 2,000 lb (906.9 kg); require the use of weak links with a maximum 
breaking strength of 3,780 lb (1,714.3 kg) between the surface system 
(all buoys, highflyers, and associated lines) and the buoy line going 
to the trawl on the ocean floor; and require that fishers install weak 
links so that if they were to break, they would produce knotless ends 
on the line.
    The current required maximum breaking strength of 3,780 lb (1,714.3 
kg) for the offshore lobster buoy line weak links is the same as that 
specified in the Lobster Take Reduction Technology List in the February 
1999 final rule. The option for fishers to choose to use a weak link 
with a maximum breaking strength of 3,780 lb (1,714.3 kg) was developed 
based on a recommendation from the GAG at its June 1997 meeting for 0.5 
inches (1.27 cm) polypropylene line, which has a breaking strength of 
approximately 3,780 lb (1,714.3 kg). Initial testing conducted by NMFS 
suggests that this breaking strength could be lowered for these gear 
types while still allowing the gear to be effectively used. The ALWTRT 
requested further testing for extreme conditions and that information 
was presented at the June 2001 ALWTRT meeting.
    Load cells were deployed with the assistance of the offshore 
lobster industry, which measured and recorded actual strain values on 
buoy systems. These deployments collected 310 days of data from six 
locations ranging from the Gulf of Maine to Hydrographer Canyon. 
Deployments took place throughout all four seasons from March of 2000 
through July of 2001. The highest maximum strain was 535 lb (243 kg) on 
a deployment in Hydrographer Canyon and the lowest maximum strain was 
190 lb (86 kg) on an offshore deployment. The average maximum strain 
across all six buoy systems for a total of 310 days was 397 lbs (180 
kg) The ALWTRT discussed the data associated with four of the six 
deployments. The consensus recommendation by the ALWTRT was for a weak 
link with a maximum breaking strength of 2,000 lb (906.9 kg). The 
ALWTRT recommended, and NMFS proposes, a 2,000 lb maximum breaking 
strength because it is approximately three times the measured strain of 
535 lb (243 kg) and, as such, provides a reasonable measure of safety 
that would help prevent gear from being lost at sea during the worst 
conditions. Ghost gear, or gear lost at sea, presents an additional 
entanglement risk to whales, other marine mammals, and fish. Based on 
these load cell data, the need to prevent gear from being lost at sea, 
and the recommendation of the ALWTRT, NMFS proposes to lower the 
current breaking strength from 3,780 lb (1714.3 kg) to 2,000 lb (906.9 
kg) for weak links at the buoy in the offshore lobster waters.

[[Page 49899]]

    NMFS proposes to require installation of a weak link with a maximum 
breaking strength of 3,780 lb (1,714.3 kg) in offshore lobster trap 
gear between the surface system (all surface buoys, the high flyer, and 
associated lines) and the buoy line leading down to the trawl, based on 
the analysis of gear that had recently entangled a whale. On July 20, 
2001, a whale watch vessel reported an entangled whale in the Jeffreys 
Ledge area off the coast of New Hampshire. The whale was identified as 
a 7-year-old male North Atlantic right whale, catalog #2427, and the 
Center for Coastal Studies disentangled the animal very soon after 
locating it. The recovered gear was identified in the fishery 
interaction gear analysis process as offshore lobster gear set in 
offshore lobster waters. The owner was contacted to determine when and 
where the gear was set, and how it was configured in an effort to 
better understand the entanglement process.
    The NMFS analysis of this entanglement and the recovered gear has 
resulted in additional proposed gear modifications for lobster trap 
gear used in the offshore lobster waters, which are detailed in this 
proposed rule. The gear recovered during the disentanglement and the 
description of the owner's typical gear configuration indicates that 
the surface system was separated from the buoy line going to the trawl 
by a weak link consisting of a 1 fathom-long section of 1/2 in (1.27 
cm) polypropylene line with a breaking strength of 3,780 lb (1,714.3 
kg) or less. It appears that the animal may have become entangled in 
the surface system and exerted sufficient strain to part the 1/2-in 
(1.27-cm) polypropylene weak link. The presence and location of this 
weak link in the gear may have prevented the animal from becoming 
further entangled in the buoy line below the weak link.
    NMFS' rationale for proposing to require lobstermen fishing in the 
offshore lobster waters area to install weak links in such a way that 
produces knotless ends in the line if the weak link were to break is 
the same as the rationale described in the previous section on the 
Southern Nearshore Lobster Waters Area.
    Figure 1 shows the boundaries for the regulated lobster waters. 
These boundaries were effective February 21, 2001, as a result of an 
interim final rule published on December 21, 2000.

[[Page 49900]]

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[[Page 49901]]



Changes Proposed for the Atlantic Large Whale Take Reduction Plan 
for Gillnet Gear

    No additional changes were recommended for gillnet fishers in 
Northeastern waters. However, the ALWTRT Mid-Atlantic and Southeast 
sub-groups recommended in 2000, that NMFS amend the ALWTRP restrictions 
applicable to gillnet fisheries in their respective areas.

Mid-Atlantic Coastal Waters

    The Mid-Atlantic Coastal Waters Area includes coastal waters from 
the south shore of Long Island to the border between North Carolina and 
South Carolina and out to the long. 72 deg. 30' W. as defined in 50 CFR 
229.2. The ALWTRT Mid-Atlantic sub-group recommended reducing 
entanglement risk by replacing the Gillnet Take Reduction Technology 
List, from which gillnetters must choose one gear option to abide by, 
with a requirement that gillnetters install buoy line weak links with a 
maximum breaking strength of 1,100 lb (498.8 kg), install net panel 
weak links with a maximum breaking strength of 1,100 lb (498.8 kg) in 
the center of the floatline on each net panel, and return all gillnet 
gear to port with their vessels or, if the gillnets are left at sea to 
continue fishing, secure the nets with anchors that have the holding 
power of at least a 22-lb (10.0-kg) Danforth-style anchor.
    The proposed changes were identified by NMFS following ALWTRT sub-
group meetings in 2000 and a full meeting in 2001 of the ALWTRT. There 
was no consensus recommendation on 600-lb (272.4-kg) versus 1,100-lb 
(498.8-kg) buoy and floatline weak links for anchored gillnets from the 
full ALWTRT meeting in June 2001. The weak link breaking strength is 
the same as the buoy line and net panel weak link options in the 
Gillnet Take Reduction Technology List in the February 1999 final rule. 
NMFS believes that a 1,100-lb (498.8-kg) maximum breaking strength 
would be consistent with the buoy and floatline weak links breaking 
strength currently required in the Northeast anchored gillnet 
fisheries. NMFS does not believe there is sufficient information 
available to implement a 600-lb (272.4-kg) breaking strength in the 
Mid-Atlantic while utilizing 1,100 lb (498.8 kg) in the Northeast. NMFS 
will investigate the utility of lowering this breaking strength for 
both the Northeast and the Mid-Atlantic through further gear research 
efforts.
    The placement of the net panel weak link at the center of the 
floatline for each panel is a change from the February 1999 final rule, 
which required that the weak link be placed on the floatline between 
net panels. Weak links in the center of each 50-fathom (300-ft or 91.4-
m) net panel floatline, or every 25 fathoms for longer nets, are 
expected to break when a whale exerts force in opposition to the 
resistance provided by the anchoring system and weight of the gear. The 
weak link would allow the floatline to part and unravel from the net 
mesh when a whale encounters any section of the gear. The net mesh 
would then be free of the stronger floatline, and a large whale would 
have a better chance of breaking free of the weaker monofilament mesh.
    The net panel weak links are required in the center of each net 
panel floatline, rather than between net panels as was specified for 
the gillnet technology list option in the February 1999 final rule. The 
ALWTRT recommended changing the placement of the net panel weak links 
because a weak link placed at the bridle might cause a failure at a 
point in the gear which is critical for safe hauling of the gear and 
placement in the center of the net panel would reduce chances of lost 
gear. Furthermore, in cases where a whale hits the gear near a weak 
link in the floatline, a breaking point within that floatline would 
maximize the chance for the whale to break away from the net before 
becoming entangled in the mesh. Once a whale becomes entangled in the 
mesh, there is a greater chance that other parts of the gear including 
the heavier lines will contribute to the seriousness of the 
entanglement. This is also based on observations of the flexibility and 
mobility of net strings along the ocean floor, where the nets become 
bowed with the current rather than remain in a rigid straight line. A 
whale exerting force on a net string would move the net before breaking 
it. During that period of movement, a net without weak links is likely 
to wrap along either side of the whale. With a weak link at the bridle, 
which is much shorter than the net panel sections, there is a greater 
chance that a whale would come away wrapped in sections of the net.
    The net panel weak link requirement contained in this proposed rule 
specifies a breaking strength of no more than 1,100 lb (498.8 kg). This 
breaking strength is a significant reduction from the floatline 
strength used historically in sink gillnet gear, which ranges from 
1,700-lb (771.8-kg) to 2,500-lb (1,135-kg). The use of weak links is 
not expected to hinder retrieval of the gear, as gillnetters would be 
able to haul their gear by the lead line in each net panel and the 
full-strength bridles between the net panels.
    When a whale encounters a net panel, the pressure exerted by the 
whale will not necessarily be directly at the weak link, and the part 
of the floatline containing the weak link will not necessarily be in 
the whale's mouth. Therefore, these weak links do not need to be 
knotless.
    The anchoring requirement was intended to create sufficient 
resistance to allow the net panel weak links to break when at least 
1,100 lb (498.8 kg) of force is exerted by a whale on net strings of 20 
or fewer net panels. The anchoring system for gillnet gear not 
returning to port with the vessel in the Mid-Atlantic Coastal Waters 
was recommended by the subgroup to allow sufficient resistence such 
that a whale can part the net regardless of the number of net panels.
    At this time, information is not available on the minimum breaking 
strength, maximum number of weak links, and the location along the 
floatline of those weak links that will allow the gear to fish and 
provide some measure of protection for entangled animals. The ALWTRT 
requested further testing on these parameters, and the NMFS Gear 
Research Team has various weak link strength and floatline 
configurations out with commercial fishers in an attempt to assess 
measures available to further reduce risk to whales.
    Figure 2 shows the boundaries for the regulated gillnet waters in 
the Northeast and Mid-Atlantic waters. These boundaries were effective 
February 21, 2001, as a result of an interim final rule published on 
December 21, 2000.

[[Page 49902]]

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[[Page 49903]]



Southeast U.S. Restricted Area

    The ALWTRT Southeast sub-group discussed activities associated with 
the ALWTRP at their July 2000 meeting. Many of the items discussed or 
recommended involved measures not requiring regulatory action. The 
Southeast sub-group did discuss two specific regulatory items, applying 
Northeast gear marking requirements to the Southeast and prohibiting 
straight sets at night at certain times.
    There was limited discussion on applying Northeast gear marking 
requirements to the Southeast at the June 2001 ALWTRT meeting. However, 
subsequent information from the NMFS Northeast Regional Office and 
Southeast Regional Office indicates that the current gear marking 
system is performing its required function. In addition, applying the 
Northeast gear marking requirements in the Southeast may conflict with 
current gear marking requirements under an existing FMP. NMFS intends 
at this time to leave the existing gear marking requirement in place 
for the Southeast U.S. Observer Area. This system is more elaborate 
than the Northeast gear marking scheme and, as such, may yield more 
information than the simplified scheme employed by the December 2000 
interim final rule for the Northeast.
    The second of the two regulatory items discussed by the Southeast 
sub-group was the prohibition of straight sets of gillnets at night 
between November 15 and March 31 in the Southeast U.S. Restricted Area, 
unless the exemption under Sec. 229.32 (f)(3)(iii), which relates to 
shark gillnets, applies. A straight set is the deployment of a gillnet 
in a straight line, as opposed to the deployment of a gillnet in a 
circular manner, for example around a school of fish. Straight sets at 
night pose a higher level of risk of entanglement to whales, because 
fishers are not as actively involved with straight set gear and whales 
are much more difficult to spot at night due to darkness.
    Figure 3 shows the boundaries for the regulated shark gillnet 
waters in the southeastern waters. These boundaries were effective 
April 1, 1999, as a result of an interim final rule published on 
February 16, 1999.

[[Page 49904]]

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[[Page 49905]]



Proposed Changes to the Lobster and Gillnet Take Reduction 
Technology Lists

Lobster Take Reduction Technology List

    The ALWTRT discussed, but did not reach consensus on, the removal 
of 7/16 in (1.11 cm) diameter line from the Lobster Take Reduction 
Technology List, which would reduce to three the number of options that 
lobster trap fishers in this area have to modify their gear to reduce 
risks of entanglement. Although the ALWTRT did not reach consensus, 
NMFS proposes to remove the option to utilize 7/16 in (1.11 cm) line 
for all buoy lines. The option of using line of a diameter of 7/16 in 
(1.11 cm) or less was previously adopted as part of the ALWTRP based 
upon the breaking strength of 7/16 in (1.11 cm) line. This strategy 
assumed that using a line with a consistent diameter would result in a 
consistent breaking strength. However, experience has demonstrated that 
the breaking strength of 7/16 in. (1.11 cm) line can vary dramatically 
and, therefore, is not an appropriate entanglement risk reduction tool. 
Since the December 2000 interim final rule was published, weak links 
have been developed and are now available commercially. These weak 
links, or alternative techniques (such as swivels, hog rings, and rope 
stapled to a buoy stick) may provide a more reliable and consistent 
breaking strength than using line diameter to predict breaking 
strength.
    However, the ALWTRT is split between sub-groups on this issue. The 
Mid-Atlantic sub-group recommended removing the 7/16-in (1.11-cm) line 
option, while some members of the Northeast sub-group expressed concern 
regarding the loss of the 7/16-in (1.11-cm) line option for the 
northern inshore lobster waters area. They are concerned that weak 
links may not be standing up well to inshore conditions and may be 
showing signs of abrasion and weakening with only a single season of 
use. In light of this concern, NMFS proposes to delay the elimination 
of the 7/16-in (1.11-cm) line option for the Lobster Take Reduction 
Technology List until January 1, 2003, to allow additional time for the 
improvement and study of weak links or the development of alternatives 
to weak links that can meet the unique physical requirements of the 
northern inshore state lobster waters area. The NMFS gear research team 
is available to provide support in the development of alternative 
methods to achieve the purpose of the weak link requirement.
    NMFS proposes to allow the use of neutrally buoyant line in buoy 
lines and ground lines as a risk reduction tool because the existing 
option to use sinking line for all groundlines and buoy lines is not 
operationally feasible in areas of hard rocky bottom. The neutrally 
buoyant line will provide more flexibility to fishers and facilitate 
the use of non-floating line in various bottom types.

Gillnet Take Reduction Technology List

    NMFS proposes to amend the Gillnet Take Reduction Technology List 
by: (1) removing the option of using buoy line with a diameter of 7/16 
in (1.11 cm) or less as a take reduction measure; and (2) requiring 
that weak links with a maximum breaking strength of 1,100 lb (498.8 kg) 
be installed in the center of the floatline of each net panel. The 
rationale for the option of using buoy line with a diameter of 7/16 in 
(1.11 cm) or less is the same as that presented in the discussion of 
proposed changes to the Lobster Take Reduction Technology List. The 
rationale for requiring that weak links with a maximum breaking 
strength of 1,100 lb (498.8 kg) be installed in the center of the 
floatline of each 50-fathom net panel or every 25 fathoms for longer 
panels is the same as that presented in the discussion of proposed 
changes for the Mid-Atlantic Coastal Waters Area. The rationale for 
allowing buoyline and ground lines to be composed of neutrally buoyant 
line is the same as that presented in the discussion of proposed 
changes to the Lobster Take Reduction Technology List.

Voluntary Measures

    NMFS encourages fishers to use and maintain knot-free buoy lines. 
The ALWTRT initially recommended requiring knot-free buoy lines, but 
changed the recommendation from a mandatory measure to a voluntary 
measure because fishers need to repair and re-tie buoy lines frequently 
at sea. The knot-free buoy line concept is similar to the breakaway 
buoy concept, where the objective is to keep knots from becoming lodged 
in a whale's baleen or from contributing to the wrapping of line around 
an appendage.
    In some cases, fishers prefer splices to knots, because splices are 
stronger. NMFS is recommending the use of splices wherever possible, 
because splices are not likely to increase entanglement threat. 
However, NMFS recognizes that connecting lines using a splice may not 
be practicable while gear is being hauled. NMFS encourages the splicing 
of line, as opposed to knot-tying, especially during seasonal gear 
overhauls or as new gear is added. Although concepts for devices to 
join lines quickly at sea have been proposed, none have been developed 
yet; therefore, there is currently no feasible way to join lines 
quickly other than knotting. NMFS will continue to investigate line 
connecting alternatives and may require further use of knotless lines 
in the future if a reasonable substitute for knots is developed.

Classification

    This proposed rule refers to a collection-of-information 
requirement subject to the Paperwork Reduction Act, namely a gear 
marking requirement, and which has been approved by OMB under control 
number 0648-0364. The public reporting burden for this requirement is 
estimated to average .6 minutes per line. This estimate includes the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to OMB 
at the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington, DC. 20053 (Attention: NOAA Desk 
Officer).
    Notwithstanding any other provision of the 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 RPA, unless that collection of information displays 
a currently valid OMB Control Number.
    As required by the Regulatory Flexibility Act, NMFS prepared an 
initial regulatory flexibility analysis (IRFA) for this proposed rule. 
A summary of that IRFA follows.
    The objective of this proposed rule, which would implement 
additional gear modifications to protect concentrations of North 
Atlantic right whales published pursuant to the authority of section 
118 of the MMPA, is to reduce the level of serious injury to and 
mortality of North Atlantic right whales in East Coast lobster trap and 
finfish gillnet fisheries. The impacted fishing communities include 
gillnet and lobster trap fishermen. The geographic range of the gear 
modifications will include the northern inshore, offshore, and the Mid-
Atlantic water areas. The potential sizes of the fleets impacted are: 
the northern inshore fleet as large as 5,982 vessels, the offshore 
fleet as large as 172 vessels, and the Mid-Atlantic fleet as large as 
625 vessels. All vessels are assumed to be small entities within the 
meaning of the Regulatory Flexibility Act.

[[Page 49906]]

    The proposed rule contains no reporting, record keeping, or 
additional compliance requirements other than modifying lobster and 
gillnet gear. There are no relevant Federal rules that duplicate, 
overlap, or conflict with the proposed rule.
    Four alternatives were evaluated for this proposed rule, including 
a status quo or ``no action'' alternative, the preferred altenative 
(PA), and two other alternatives. The No Action alternative would leave 
in place the existing regulations promulgated under the ALWTRP and as 
such would result in no additional economic burden on the fishing 
industry.
    The proposed action is to implement the gear modifications as 
stated for the areas described. In the northern inshore area, the total 
lower and upper bound cost per vessel (compliance cost for change in 
gear requirements) in the lobster fleet under the PA plan is $139 and 
$648, respectively (Table 8.2.1 of the EA). Given there are 5,982 
vessels potentially fishing lobster gear, the total lower and upper 
bound cost to the industyr is $832K and $3,877K, respectively.
    In the northern offshore area, the total lower and upper bound cost 
per vessel in the lobster fleet under the PA plan is $97 and $218, 
respectively. Given there are 172 vessels potentially fishing lobster 
gear, the total lower and upper bound cost to the industry is $17K and 
$38K, respectively. In the southern nearshore area, there is no 
additional cost to the lobster fleet under the PA plan.
    In the Mid-Atlantic (southern nearshore and southern offshore) 
under the PA plan, the average cost per sink gillnet vessel is $657 to 
attach weak links at the top of the buoy line, in the middle of each 50 
fathom net panel, and to purchase a 22-lb (10.0-kg) Danforth anchor 
(Table 8.2.2). The total industry cost to the Mid-Atlantic sink gillnet 
fishery is $99.0K.
    Finally, the total lower and upper bound industry costs to the 
lobster and sink gillnet fleet under the PA plan are $948K ($948 = $849 
lobster + $99 sink gillnet) and $4,014 ($4,014 = $3,915 lobster + $99 
sink gillnet), respectively.
    The third alternative which is the non-preferred alternative (NPA-
1) would consist of the PA as well as the use of full weak links at the 
surface and bottom of the buoy line and the reduction of floating line.
    The total lower and upper bound cost per vessel in the lobster 
fleet under the NPA-1 plan is $5,297 and $17,841, respectively (Table 
8.2.1). Given there are 5,982 vessels potentially fishing lobster gear, 
the total lower and upper bound cost to the industry is $31.7M and 
$106.8M, respectively.
    In the northern offshore area, the total lower and upper bound cost 
per vessel in the lobster fleet under the NPA-1 plan is $50,212 and 
$105,849, respectively. Given there are 172 vessels potentially fishing 
lobster gear, the total lower and upper bound cost to the industry is 
$8.6M and $18.2M, respectively.
    In the southern nearshore area, the total lower and upper bound 
cost per vessel in the lobster fleet under the NPA-1 plan is $3,411 and 
$10,743, respectively. Given there are 222 vessels potentially fishing 
lobster gear, the total lower and upper bound cost to the industry is 
$0.8M and $2.4M, respectively.
    In the southern nearshore area, the average cost per vessel in the 
sink gillnet fleet under the NPA-1 plan is $1,009 if an anchor is 
required and $440 if an anchor is not required under the PA plan (Table 
8.2.2). Given there are 357 vessels potentially fishing sink gillnet 
gear, the average industry cost is $225K. In the southern offshore 
area, the average cost per vessel in the sink gillnet fleet under the 
NPA-1 plan is $4,349 if an anchor is required and $3,789 if an anchor 
is not required under the PA plan. Given there are 100 vessels 
potentially fishing sink gillnet gear, the average industry cost is 
$469K.
    Finally, the total lower and upper bound industry cost to the 
lobster fleet under the NPA-1 plan is $41.1M and $127.4M. The average 
total industry cost for the sink gillnet fleet is $694K.
    The fourth alternative (NPA-2) would consist of the PA as well as 
buoy line removal and the reduction of floating line. The costs of that 
alternative are provided here in summary form.
    In the northern inshore area, the total lower and upper bound cost 
per vessel in the lobster fleet under the NPA-2 plan is $158.1K and 
$517.6K, respectively (Table 8.2.1). Given there are 5,982 vessels 
potentially fishing lobster gear, the total lower and upper bound cost 
to the industry is $945.6M and $3,096.2M, respectively.
    In the northern offshore area, the total lower and upper bound cost 
per vessel in the lobster fleet under the NPA-2 plan is $131.0K and 
$271.6K, respectively. Given there are 172 vessels potentially fishing 
lobster gear, the total lower and upper bound cost to the industry is 
$22.5M and $46.7M, respectively.
    In the southern nearshore area, the total lower and upper bound 
cost per vessel in the lobster fleet under the NPA-2 plan is $73.9K and 
$224.3K, respectively. Given there are 222 vessels potentially fishing 
gear, the total lowre and upper bound cost to the industry is $16.4M 
and $49.8M, respectively.
    In the southern nearshore area, the average cost per vessel in the 
sink gillnet fleet under the NPA-2 plan is $22.8K (Table 8.2.2). Given 
there are 357 vessels potentially fishing sink gillnet gear, the total 
industry cost is $8.1M. In the southern offshore area, the total cost 
per vessel in the sink gillnet fleet under the NPA-2 plan is $44.5K. 
Given there are 100 vessels potentially fishing sink gillnet gear, the 
average industry cost is $44.5M.
    Finally, the total lower and upper bound industry cost to the 
lobster fleet under the nPA-2 is $984.5M and $3,192.7M. The average 
total cost for the sink gillnet fleet under the NPA-2 is $712,598K.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.

References

    International Whaling Commission (IWC). 2001. Report on the IWC 
Workshop on the Status and Trends in western North Atlantic Right 
whales. J. of Cetacean Research and Management. In press.
    Kraus, S.D., P.K. Hamilton, R. D. Kenney, A.R. Knowlton, and C.K. 
Slay. 2000. Status and trends in reproduction of the North Atlantic 
Right Whale. J. Cetacean Research Management. In press.
    Waring, G.T., J.M Quintal, and S. Swartz. 2000. U.S. Atlantic and 
Gulf of Mexico Marine Mammal Stock Assessments - 2000. NOAA Technical 
Memorandum NMFS-NE-162. U.S. Department of Commerce, Northeast 
Fisheries Science Center, Woods Hole, MA. pp. 303.

List of Subjects in 50 CFR Part 229

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

    Dated: September 26, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, the National Marine 
Fisheries Service proposes to amend 50 CFR part 229 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:


[[Page 49907]]


    Authority: 16 U.S.C. 1371 et seq.

    2. In Sec. 229.2, a definition of ``Neutrally buoyant line'' is 
added in alphabetical order to read as follows:


Sec. 229.2  Definitions.

* * * * *
    Neutrally buoyant line means line with a specific gravity near that 
of sea water, so that the line neither sinks to the ocean floor nor 
floats at the surface, but remains close to the bottom.
* * * * *

    3. In Sec. 229.3, paragraph (k) is revised to read as follows:


Sec. 229.3  Prohibitions.

* * * * *
    (k) It is prohibited to fish with gillnet gear in the areas and for 
the times specified in Sec. 229.32 (b)(2), (f)(1)(i), and (f)(1)(ii) 
unless the gear complies with the closures, marking requirements, 
modifications, and other restrictions specified in Sec. 229.32 
(b)(3)(i), (b)(3)(ii), and (f)(2) through (f)(3)(iv).
* * * * *

    4. Section 229.32 is amended by adding a note at the end of the 
section; adding paragraphs (c)(5)(ii)(B) and (f)(3)(iv); revising the 
heading of the introductory text of paragraph (c)(5)(ii)(A); and 
revising paragraphs (c)(5)(ii)(A)(2), (c)(8)(ii), (c)(9)(i), 
(c)(9)(iii), (c)(9)(iv), (d)(7), (d)(8), and the heading of paragraph 
(f) to read as follows:


Sec. 229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (c) * * *
    (5) * * *
    (ii) * * *
    (A) Weak links on all buoy lines. * * *
* * * * *
    (2) The breaking strength of these weak links may not exceed 2,000 
lb (906.9 kg).
* * * * *
    (B) Weak links between the surface system and buoy line. A weak 
link must be utilized between the surface system (which includes all 
buoys, high flyers, line, and associated hardware) and the buoy line 
that leads to the trawl on the ocean floor. This weak link must meet 
the following specifications:
    (1) This weak link must be chosen from the following list of 
combinations approved by the NMFS gear research program: Swivels, 
plastic weak links, rope of appropriate breaking strength, or other 
materials or devices approved in writing by the Assistant 
Administrator.
    (2) The breaking strength of this weak link may not exceed 3,780 lb 
(1,714.3 kg).
* * * * *
    (8) * * *
    (ii) Area-specific gear requirements for the restricted period-- 
(A) Restricted period. The restricted period for Southern Nearshore 
Lobster Waters is year round unless the Assistant Administrator revises 
this period in accordance with paragraph (g) of this section.
    (B) Gear requirements. No person may fish with lobster trap gear in 
the Southern Nearshore Lobster Waters Area during the restricted period 
unless that person's gear complies with the gear marking requirements 
specified in paragraph (b) of this section, the universal lobster trap 
gear requirements in paragraph (c)(1) of this section, and the 
following gear requirements for this area, which the Assistant 
Administrator may revise in accordance with paragraph (g) of this 
section:
    (1) Buoy line weak links. All buoy lines must be attached to the 
main buoy with a weak link that meets the following specifications:
    (i) The weak link must be chosen from the following list of 
combinations approved by the NMFS gear research program: 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.
    (ii) The breaking strength of this weak link may not exceed 600 lb 
(272.4 kg).
    (iii) Weak links must be designed such that the bitter end of the 
buoy line is clean and free of knots when the link breaks. Splices are 
not considered to be knots for the purpose of this provision.
    (2) [Reserved]
    (9) * * *
    (i) Through December 31, 2002, all buoy lines must be 7/16 inches 
(1.11 cm) or less in diameter.
* * * * *
    (iii) All buoy lines must be comprised entirely of sinking and/or 
neutrally buoyant line.
    (iv) All ground lines must be comprised entirely of sinking and/or 
neutrally buoyant line.
    (d) * * *
    (7) Mid-Atlantic Coastal Waters Area--(i) Area. The Mid-Atlantic 
Coastal Waters Area consists of all U.S. waters bounded by the line 
defined by the following points: The southern shore of Long Island, NY, 
at 72 deg. 30' W. long., then due south to 33 deg. 51' N. lat., thence 
west to the North Carolina-South Carolina border, as defined in 
Sec. 229.2.
    (ii) Area-specific gear requirements. No person may fish with 
anchored gillnet gear in the Mid-Atlantic Coastal Waters Area unless 
that person's gear complies with the gear marking requirements 
specified in paragraph (b) of this section, the universal anchored 
gillnet gear requirements specified in paragraph (d)(1) of this 
section, and the following area-specific requirements, which the 
Assistant Administrator may revise in accordance with paragraph (g) of 
this section:
    (A) Buoy line weak links. All buoy lines must be attached to the 
main buoy with a weak link that meets the following specifications:
    (1) The weak link must be chosen from the following list of 
combinations approved by the NMFS gear research program: Swivels, 
plastic weak links, rope of appropriate breaking strength, hog rings, 
rope stapled to a buoy stick, or other materials or devices approved in 
writing by the Assistant Administrator.
    (2) The breaking strength of these weak links may not exceed 1,100 
lb (498.8 kg).
    (3) Weak links must be designed such that the bitter end of the 
buoy line is clean and free of any knots when the link breaks. Splices 
are not considered to be knots for the purposes of this provision.
    (B) Net panel weak links. All net panels must contain weak links 
that meet the following specifications:
    (1) Weak links must be inserted in the center of the floatline of 
each 50-fathom net panel in a net string or every 25 fathoms for longer 
panels.
    (2) The breaking strength of these weak links may not exceed 1,100 
lb (498.8 kg).
    (C) Tending/anchoring. All gillnets must return to port with the 
vessel or be anchored at each end with an anchor capable of the holding 
power of at least a 22-lb (10.0-kg) Danforth-style anchor.
    (8) Gillnet Take Reduction Technology List. The following gear 
characteristics comprise the Gillnet Take Reduction Technology List:
    (i) All buoy lines are attached to the buoy line with a weak link 
having a maximum breaking strength of up to 1,100 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.
    (ii) Weak links with a breaking strength of up to 1,100 lb (498.8 
kg) must be inserted in the center of the floatline (headrope) of each 
50 fathom net panel or every 25 fathoms for longer panels.

[[Page 49908]]

    (iii) All buoy lines must be comprised entirely of sinking and/or 
neutrally buoyant line.
* * * * *
    (f) Restrictions applicable to the Southeast U.S. Restricted Area 
and the Southeast U.S. Observer Area.* * *
    (3) * * *
    (iv) Straight sets of gillnets may not be made at night in the 
Southeast U.S. restricted area during the closed period described in 
paragraph (f)(3)(ii) of this section, except for shark gillnets 
exempted under paragraph (f)(3)(iii) of this section. A straight set is 
defined as a set in which the gillnet is placed in a straight line in 
the water column, as opposed to a circular set in which the gillnet is 
used to encircle a school or group of fish.
* * * * *
    Note to Sec. 229.32: Additional regulations that affect fishing 
with lobster trap gear have also been issued under authority of the 
Atlantic Coastal Fisheries Cooperative Management Act in part 697 of 
this title.
[FR Doc. 01-24590 Filed 9-27-01; 3:23 pm]
BILLING CODE 3510-22-S