[Federal Register Volume 66, Number 229 (Wednesday, November 28, 2001)]
[Proposed Rules]
[Pages 59394-59404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29601]



[[Page 59394]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 011120279-1279-01; I.D. 092401E]
RIN 0648-AP68


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 issuing a proposal 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 North 
Atlantic right whales, through a program called Seasonal Area 
Management (SAM). This action is necessary due to the critical status 
of the North Atlantic right whale population. The intent of this action 
is to reduce interactions between North Atlantic right whales and 
fishing gear and to reduce serious injury and mortality of North 
Atlantic right whales due to entanglement in fishing gear.

DATES: Comments on this proposed rule must be postmarked or transmitted 
via facsimile by 5 p.m. Eastern Standard Time, on December 13, 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. 
Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries and 
progress reports on implementation of the ALWTRP may be obtained by 
writing to Gregg LaMontagne, NMFS/Northeast Region, 1 Blackburn Dr., 
Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Gregg LaMontagne, NMFS, Northeast 
Region, 978-281-9291 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/. 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

    On June 14, 2001, NMFS issued four Biological Opinions (BOs) as the 
result of section 7 consultations on three Fishery Management Plans 
(FMPs) for the monkfish, spiny dogfish, and Northeast multispecies 
fisheries, and the Federal regulations for the American lobster 
fishery. The BOs concluded that the regulations implementing the three 
FMPs and lobster regulations are likely to jeopardize the continued 
existence of North Atlantic right whales. As a result of these jeopardy 
findings, the BOs provided a Reasonable and Prudent Alternative (RPA) 
with multiple management components.

The RPA

    The BOs provide that the RPA will minimize interactions or overlap 
between North Atlantic right whales and fishing gear, with the goals of 
both reducing the total number of entanglements and eliminating serious 
injury or mortalities of North Atlantic right whales. The RPA 
identifies the fisheries effects that serve as the basis for the 
jeopardy determination as ``serious injury or mortality that may result 
from documented entanglements.'' Jeopardy is defined as engaging in an 
action that reasonably would be expected, directly or indirectly, to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species in the wild by reducing the reproduction, numbers or 
distribution of that species. An entanglement would not reasonably be 
expected to always result in a reduction in reproduction, numbers or 
distribution of North Atlantic right whales. However, entanglements 
that result in a serious injury or mortality of a North Atlantic right 
whale would result in a reduction in numbers of North Atlantic right 
whales and therefore would result in jeopardy. The gear modifications 
proposed for SAM areas address both the goal of reducing the total 
number of entanglements (through significant reductions in vertical 
line) and the goal of avoiding serious injury or mortality (through the 
incorporation of weak links in greater frequency and at reduced 
breaking strengths).

RPA Discussion of SAM

    SAM is one component of the RPA contained in the BOs. The RPA 
provides that ``NMFS shall...effect annual restrictions to minimize 
interactions between fishing gear and North Atlantic right whales.'' 
Area restrictions that could be included in the management scheme as 
specified in the RPA include closing areas to fishing gear or 
restricting the areas to only modified gear that has been proven to 
prevent serious injury or mortality to North Atlantic right whales. It 
is important to note that the RPA did not require that NMFS must 
eliminate interactions between fishing gear and North Atlantic right 
whales through these annual restrictions but that NMFS must minimize 
the interaction. In addition, the RPA presented two management schemes 
for SAM-- closures or restrictions. The BOs provide that the 
Conservation Significance of the SAM component of the RPA is ``reducing 
the potential for interactions between North Atlantic right whales and 
fishing gear.'' The proposed gear restrictions for SAM reduce the 
potential for interactions to occur and also reduce the potential for 
interactions between North Atlantic right whales and fishing gear to 
result in serious injury or mortality. The RPA requires this management 
component to be implemented by a final rule no later than December 31, 
2001. NMFS considered the two alternatives of closures or gear 
restrictions, and for the reasons articulated in this notice, 
identified gear restrictions as the proposed action. Comments on this 
proposed action will be considered in determining the course of action 
to be pursued in the final rule.
    Background for this proposed rule is provided in an Advance Notice 
of Proposed Rulemaking (ANPR) (66 FR 50390, October 3, 2001), which 
described the SAM program in general terms and requested public 
comment. Fourteen sets of written comments on the ANPR were received 
during the comment period date established by the ANPR, which ended 
November 2, 2001. NMFS received written comment from fishermen, 
conservationists, and state managers.
    Comments received from conservation groups generally supported the 
SAM concept and favored a proposed rule that would implement North 
Atlantic right whale protection consistent with the RPAs of the BOs. 
The conservation groups supported SAM areas where

[[Page 59395]]

predictable seasonal congregations occur, including Jeffrey's Ledge and 
portions of the Gulf of Maine and Georges Bank. Furthermore, 
conservation groups supported a prohibition on fixed gear unless the 
gear has been determined to be ``whale safe'' or low risk, as defined 
by the ALWTRT. Several conservation groups defined ``whale safe'' gear 
as gear with no chance of entanglement and low risk gear as gear for 
which it could be expected that any entanglements would be minor and 
chances of death or serious injury to whales would be highly unlikely.
    NMFS is engaging in proposed and final rulemaking, which the 
commenters favored, as evidenced by this proposed rule. The SAM area 
proposed in this document extends from Cape Cod to the Hague Line and 
includes the northern edge of Georges Bank. Animals were not sighted on 
Jeffreys Ledge or other portions of the Gulf of Maine in all three 
years of survey data which was analyzed for the SAM area designation. 
Therefore, these areas were not included in the SAM areas and NMFS 
intends to manage these areas using another proposed management measure 
called Dynamic Area Management (DAM). In line with comments from 
conservation groups, this proposed rule would establish a SAM area and 
allow lobster trap and gillnet gear to be fished if that gear is low 
risk as defined at the June 2001 ALWTRT meeting, i.e., gear for which 
an entanglement would be highly unlikely to result in death or serious 
injury.
    Several state agencies also commented in support of the SAM 
concept. In particular, the Commonwealth of Massachusetts and State of 
Maine both support SAM, but strongly recommended that NMFS consider 
gear modifications consistent with the recent settlement agreement 
between Massachusetts and environmental groups that sued the 
Commonwealth over its measures to protect North Atlantic right whales. 
Other comments received from fishermen and fishermen associations also 
supported gear modifications for SAM areas.
    In response to comments from state fisheries agencies and 
fishermen, NMFS notes that this proposed rule identifies gear 
modifications that would allow lobster trap and gillnet gear to be 
fished in the SAM area while also protecting North Atlantic right 
whales from serious injury and mortality.
    All comments received through November 2, 2001, will be considered 
in the final decision of this action and will be addressed in the SAM 
final rule.

Proposed SAM Program

    NMFS proposes a SAM program to protect predictable annual 
congregations of North Atlantic right whales in the waters off Cape Cod 
and out to the Exclusive Economic Zone line (see figure 1). NMFS would 
define two areas, called SAM West and SAM East, in which gear 
restrictions for lobster trap and anchored gillnet gear would be 
required. These proposed requirements would be more stringent than, and 
in addition to, the gear modifications currently required under the 
ALWTRP for the Offshore Lobster Waters, Northern Nearshore Lobster 
Waters, Northern Inshore Lobster Waters and Other Northeast Waters 
(gillnet area description). The time/area restrictions are based on the 
annual predictable presence of North Atlantic right whales as observed 
in aerial surveys from 1999-2001 (Merrick, et al. 2001). SAM West is 
proposed on an annual basis for the period March 1 - April 30. SAM East 
is proposed on an annual basis for the period May 1 - July 31. The 
dividing line between SAM West and SAM East is proposed at the 69 deg. 
24' west longitude line. See table 1 for the spatial and temporal 
definitions of the areas.
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Interaction with other Restrictions

    The proposed gear restrictions for the SAM areas would not preempt 
existing restrictions within Cape Cod Bay and the Great South Channel 
critical habitat for North Atlantic right whales. In addition, NMFS 
published a proposed rule that would provide clear authority to 
implement Dynamic Area Management (DAM) (66 FR 50160, October 2, 2001) 
which the BOs provide will be implemented as a final rule no later than 
December 31, 2001. DAM is designed to respond to unexpected 
aggregations of North Atlantic right whales outside of critical habitat 
and other regulated waters, such as the proposed SAM areas. The DAM 
program proposed would include short-term closure to lobster trap and 
gillnet fisheries. Because SAM areas would protect areas of known North 
Atlantic right whale aggregations, NMFS does not anticipate that DAM 
areas will be established within SAM areas. However, the DAM program, 
as proposed, allows NMFS to implement DAM within SAM areas if 
conditions warrant such action. NMFS anticipates that the DAM program 
could be necessary during the times and in the areas when SAM is not in 
effect. NMFS will consider comments received on the proposed rule on 
DAM as well as this proposed rule to further refine the relationship 
between DAM and SAM.

SAM Gear Restrictions

    The proposed SAM rule would implement a management scheme that 
restricts fishing with lobster trap and gillnet gear within the SAM 
areas to only modified gear that has been proven to prevent serious 
injury or mortality to North Atlantic right whales. This is achieved 
through the following means: (1) Identifying and delineating areas of 
seasonal concentrations of North Atlantic right whales; (2) reducing 
the amount of lobster trap and gillnet gear in the water column; and 
(3) requiring gear modifications that minimize the potential for 
serious injury or mortality of North Atlantic right whales in SAM 
areas.
    NMFS is proposing to implement the approach identified in the RPA 
of restricting areas to modified gear that has been proven to prevent 
serious injury or mortality to North Atlantic right whales (rather than 
closing these areas to fishing gear). The first question that must be 
answered is what is meant by ``proven.'' It is not feasible, in the 
typical scientific fashion, to conduct and evaluate experiments on 
North Atlantic right whale interactions with modified gear. NMFS cannot 
conduct laboratory or field trials on North Atlantic right whales to 
collect data. NMFS is able, however, to scrutinize past entanglements 
and learn from them ways to modify gear so that future serious 
entanglements do not occur. Since the issuance of the BOs, NMFS has 
conducted additional analysis of available data including that on the 
seasonal movement and congregations of right whales, previous 
entanglements, and the nature and position of gear in the water. Based 
on these analyses and our knowledge of North Atlantic right whale 
behavior, NMFS has identified gear modifications that are proven to 
prevent serious injury or mortality.
    The first category of data that has been evaluated is past records 
of North Atlantic right whale entanglements that resulted in serious 
injury or mortalities to identify fishing gear that has been proven to 
result in serious injury or mortality. Utilizing entanglement data from 
1999-2001, NMFS concluded that fishing line in the water column 
presents the highest entanglement risk from fishing gear to the North 
Atlantic right whale. NMFS examined these cases to determine the cause 
of the entanglement that resulted in serious injury or mortality and 
identified gear modifications that would prevent such injuries or 
mortalities in the future. These cases involved buoyline, floatline, 
endline and groundline. The proposed gear modifications include 
provisions to address each of these gear components that have been 
determined to be sources of entanglement.
    Floating line has been identified as the source of North Atlantic 
right whale entanglement because the line is designed to float in the 
water column to avoid contact with the bottom of the ocean during lower 
tides. The slack in the floating line is identified as a source of 
North Atlantic right whale entanglement. NMFS determined that typical 
offshore lobster pot gear is configured with approximately 7,000 ft 
(2,134 m)of floating line. Video recording of typical lobster gear with 
floating groundline between traps revealed that the line forms large 
loops in the water column between traps. Similar video recording of 
neutrally buoyant line between traps revealed that it did not have the 
same vertical profile as floating line; rather, it was located on or 
near the bottom and was not available to North Atlantic right whales as 
an entanglement risk. To minimize interactions between fishing gear and 
North Atlantic right whales, the proposed SAM rule would prohibit 
floating line for all lobster pot and gillnet gear within the SAM areas 
during the times specified. By eliminating floating line and requiring 
sinking or neutrally buoyant line, approximately 85 percent of the line 
within the water column would be eliminated.
    Based on recent cooperative research between the NMFS Gear Research 
Team and an offshore lobster industry representative, NMFS estimates 
that outfitting an offshore lobster vessel with neutrally buoyant line 
would require approximately 50 nautical miles (nm) (80.5 km)of line. A 
typical changeover estimate to neutrally buoyant line from floating 
line for the northern inshore lobster fishery in the SAM area is on the 
order of 5 nautical miles of line per vessel. Preliminary estimates for 
the SAM East area suggest that 10 offshore lobster vessels operate in 
the area with a limit of 1,800 traps per vessel. Forty five trawls of 
40 traps each is the typical gear configuration for these 10 offshore 
lobster vessels. Each trawl uses up to 30 fathoms of groundline between 
each trap. The proposal to utilize neutrally buoyant and/or sinking 
line would remove as much as 600 nm (968 km) of floating line from the 
water column during the time when NMFS expects North Atlantic right 
whales to be in the area. A greater amount of floating line would be 
removed from the water column when one considers that the lobster and 
gillnet vessels in the SAM West area, as well as gillnet vessels in the 
SAM East area, would also be required to change over from floating to 
neutrally buoyant or sinking line.
    Vertical line between the gear and the surface system is another 
source of entanglement. By allowing only a single buoy line per net 
string for gillnet gear and a single buoy line per trawl for lobster 
trap gear, the amount of vertical line in the water column is further 
reduced by 50 percent. It is not technologically feasible at this time 
to remove all vertical lines from the water column, since there has to 
be some way for fishermen to haul a line at the surface to bring up 
gear from the sea floor.
    The 85-percent reduction in floating line and 50-percent reduction 
in vertical line are methods that prevent serious injury or mortality 
to North Atlantic right whales. If the line is not within the water 
column the threat of entanglements from these gear components is 
eliminated.
    The measures proposed result in a significant reduction in the 
volume of line in the water column in SAM areas. However, line still 
remains at the one buoy line for both lobster and gillnet gear and in 
the panels of gillnet gear. The amount of line in the buoy line that is 
vertical in the water column would be

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reduced significantly by the proposed prohibition on the use of 
floating line. To further reduce the risk posed by remaining vertical 
line, weak links at reduced breaking strengths are proposed as a 
requirement of the modified gear.
    Past entanglements provide evidence that weak links are a critical 
measure to prevent serious injury or mortality of marine mammals. The 
proposed placement of the weak links is designed to provide key 
breaking points so that any North Atlantic right whale that does become 
entangled would be able to break free (by breaking a weak link) prior 
to any serious injury or mortality. For gillnet gear set in the SAM 
areas, each net panel would be required to have a total of 5 weak links 
with a maximum breaking strength of 1,100 lbs (498.9 kg). One floatline 
weak link would be required to be placed at the center of the net panel 
and two weak links would be placed as close as possible to each of the 
bridle ends of the net panel. The remaining two weak links would be 
placed in the center of each of the up and down lines at either end of 
each panel. In addition, all anchored gillnets are required to be 
securely anchored with the holding power of at least a 22 lb (9.9 kg) 
Danforth-style anchor at each end of the net string. Serious injuries 
and mortalities have occurred when North Atlantic right whales became 
wrapped in gear. When a North Atlantic right whale encounters gear that 
does not have weak links and is not properly anchored then any effort 
by the whale to free itself of the gear likely results in it becoming 
further and further wrapped up in the gear. Anchoring provides tension 
so that, when a whale encounters the anchored gear, sufficient tension 
is placed on the line, which is then likely to break at the weak links 
resulting in the whale either entirely breaking free of the gear or 
swimming away with a line or portion of gear rather than being wrapped 
in the gear. When the gear is attached to the whale in this manner, 
rather than being wrapped around the whale, it can be shed by the whale 
or may be removed through disentanglement efforts, and serious injury 
or mortality may be avoided.
    In order to evaluate the effectiveness of weak links placed in the 
float line of gillnets, NMFS conducted investigations simulating an 
entanglement. NMFS placed strain on fifteen net strings that were 
anchored and twenty that were not anchored. Trials were run with both 
600 lb (272.2 kg) and 1,100 lb (498.9 kg) weak links at three places on 
the floatline. When strain was applied to the gillnets with proper 
anchoring systems, the floatline weak line broke with very little net 
attached. This provides evidence that the weak links can be expected to 
break when encountering strain such as that placed on it by a marine 
mammal. The fact that the weak link broke quickly and cleanly provides 
evidence that an encounter between a North Atlantic right whale and 
gillnet gear with proper anchoring and the five proposed weak links 
would be highly unlikely to result in the serious injury or mortality 
of that North Atlantic right whale. It is also important to note that 
recently a float has been designed and developed that incorporates a 
weak link allowing fishermen to place weak links in gillnet gear much 
more easily.
    A study was conducted in 1997 by the Department of Fisheries, 
University of Rhode Island, to estimate the tractive force for the 
North Atlantic Right Whale. Maximum propulsive force (forward moving 
burst force) estimates for the North Atlantic right whale ranged from 
465 lbs (210.9 kg) for 13 foot (3.9 m) whales to 9,440 lb (4,281.9 kg) 
for 59 foot whales. Maximum estimates of tractive forces for right 
whales ranged from 135 lb (61.2 kg) for 13 foot (3.9 m) whales to 6,969 
lb (3,161 kg) for 59 foot (17.9 m) whales. Data on objects towed by 
right whales during rescue operations was also analyzed to determine 
forces capable of being generated by right whales. During the 
disentanglement of a 43 foot (13.1 m), 38.6 ton right whale, the Center 
for Coastal Studies attempted to fatigue the whale by adding an 8 foot 
(2.4 m) sea anchor, 5 Norwegian balls, and an inflatable boat. A 42 
foot (12.8 m) fishing vessel was also tied to the whale. The vessel and 
gear were towed by the whale for one hour at a speed of 9 knots. The 
total estimated drag on the whale during this operation ranged from 593 
lb to 2,369 lb (268.9 kg to 1,074.6 kg). In addition, during the rescue 
the whale parted a rope with an estimated breaking strength of 400 lb 
(181.44 kg). The size of animals in the Bay of Fundy are likely to 
reflect the size of animals that pass through SAM. Seventy-seven 
animals observed and measured in the Bay of Fundy in 2000 and 2001 
ranged in size between 25 to 50 feet (7.5 to 15 m). Of these seventy-
seven animals, 86% were greater than 33 feet (10 m). Based on this 
information, it would appear that most right whales in the SAM area 
would be able to exert enough force on the 1,100 weak links to break 
them and thus become free of the gear.
    In July 2001, a North Atlantic right whale was observed entangled 
in offshore lobster gear. The gear investigation determined that the 
entanglement was in the surface system (consisting of the buoy(s) and 
high flyer). Weak links were required in the portions of the gear where 
the entanglement occurred and, based on the gear remaining in the water 
and that was removed from the whale during disentanglement, it was 
determined that the weak link had functioned properly and had released 
the whale from the lobster pots. Based on the gear investigation, it 
was determined that the weak link allowed the North Atlantic right 
whale to break away from the majority of the offshore lobster gear, 
ending up with only a small piece of the line. The whale was completely 
disentangled by the Center for Coastal Studies without any serious 
injury or mortality. Based on weak link studies and reviews of gear 
configurations involved in entanglements, NMFS concludes that the 
additional weak links and lower breaking strengths in the surface 
system proposed in the SAM regulations would have likely allowed the 
North Atlantic right whale to free itself of all gear.
    The concept of removing floating line from groundlines and buoy 
lines and the increased use of weak links was supported in discussions 
with the ALWTRT at its June 27-28, 2001 meeting and in public comments 
received on the SAM ANPR. The ALWTRT membership includes environmental 
interests, fishermen, gear experts, state and federal fisheries 
managers and large whale biologists who are considered experts in their 
respective fields. This group, as evidenced by the extensive 
development of additional gear modifications at the June 27-28, 2001, 
ALWTRT meeting, generally supports gear modifications as an element of 
SAM. NMFS believes that this proposed rule provides significant 
conservation benefits to North Atlantic right whales and that these 
measures, as a component of the RPA, remove jeopardy for the North 
Atlantic right whale.
    Level II or Low Risk Gear is proposed as a requirement within a SAM 
area. A definition developed by a subgroup of the ALWTRT states that 
Level II or Low Risk Gear is gear for which any entanglement would be 
minor, meaning where death or serious injury is highly unlikely. NMFS 
is proposing that the gear listed below be required to fish in SAM 
areas during the specified times.
    The information and analysis provided previously in this document 
demonstrates that the gear modifications proposed for SAM areas 
(including replacing floating line with neutrally buoyant line, 
additional weak links, reduced breaking strengths for weak

[[Page 59399]]

links and limits on the number of buoy lines) are proven to prevent 
serious injury or mortality to North Atlantic right whales. The 
proposed SAM measures would, therefore, implement the SAM portion of 
the RPA as described in the June 14, 2001, BOs.

Research and Monitoring Portion of the RPA

    Some of the gear modifications that would be included as 
requirements for lobster and gillnet gear in the SAM area were 
contained in the RPA under the heading of ``Continue gear research and 
modifications.'' Specifically, this includes expanded research and 
testing on eliminating floating line in the anchor and buoy lines of 
gillnet gear and testing and evaluating the replacement of floating 
line in lobster gear with neutrally buoyant groundline. The testing and 
evaluation is identified within the RPA as being necessary to determine 
whether these measures are feasible. The rationale for including 
additional investigation in the RPA was to allow for further evaluation 
to determine the feasibility of adoption of these gear modifications. 
This research will expand and refine work previously completed and 
increase cost effectiveness. This investigation was not needed or 
intended to evaluate the effectiveness of these gear modifications in 
terms of their ability to minimize the risk to North Atlantic right 
whales either by reducing the potential for entanglement or by 
minimizing the potential for any entanglements to result in serious 
injury or mortality of North Atlantic right whales. While it may not be 
feasible to require these gear modifications on a broad scale, we have 
determined that it is appropriate to require their use in SAM areas 
because they have been proven effective at reducing entanglements and 
the severity of any entanglements that do occur and the higher costs 
and logistical barriers are justified due to the increased risk posed 
by the greater concentration of North Atlantic right whales observed in 
the SAM area on an annual basis. Fishermen on an individual basis will 
evaluate the costs of these gear modifications and make a decision 
whether to implement the required gear modifications, which allow them 
to fish within the SAM areas during the restricted times, not fish 
during these times, or fish in other areas during these times.

Consideration of Prohibiting Lobster Trap and Gillnet Gear from SAM 
Areas

    NMFS considered the two alternative methods for SAM implementation 
provided in the RPA, which include closing areas to fishing gear or 
restricting the areas to only modified gear that has been proven to 
prevent serious injury or mortality to North Atlantic right whales. For 
the reasons specified above, the selection of the latter option is 
believed to be sufficiently protective of North Atlantic right whales 
and, in combination with other measures in the BO, remove jeopardy. The 
proposed gear modifications would both reduce the potential for 
interactions through a significant reduction in vertical line and 
reduce the potential for serious injury or mortality through the 
incorporation of additional weak links at reduced breaking strengths.
    Initially, it may appear that the option of closing the SAM area to 
all fishing would offer greater relative protection to North Atlantic 
right whales. However, enacting a complete closure to lobster and 
gillnet gear within SAM areas could have the result of concentrating 
effort at the margins of the SAM areas. This is a well-known behavior 
in response to closed areas. It is important to note that the SAM area 
is an area where concentrations of North Atlantic right whales appear 
on a regular annual basis but it does not, and is not intended to 
include all areas where North Atlantic right whales occur in the Gulf 
of Maine during this time of year. Furthermore, North Atlantic right 
whales passing into and out of the SAM area closures would be at 
increased risk of serious injury or mortality because gear deployed 
outside of the SAM area closures would not have incorporated additional 
modifications to reduce the risk to right whales. It is also expected 
that fishermen who modify their gear to comply with the SAM gear 
restrictions would maintain those modifications in their gear when 
fishing outside of the SAM area. This would result in increased risk 
reduction in areas and at times not affected by SAM. However, NMFS is 
seeking public comment on both alternatives and, based on the comments 
received, reserves discretion to implement either of the two 
alternatives.

Lobster Trap and Anchored Gillnet Gear for use in Seasonal Area 
Management(SAM)areas for March 1 - July 31

    The gear listed below under the lobster trap and gillnet headings 
is intended to describe the gear that meets or exceeds the definition 
of Level II or Low Risk Gear. Level II or Low Risk Gear, as described 
during the June 2001 ALWTRT meeting, is gear for which any entanglement 
would be minor, where death or serious injury is highly unlikely. These 
requirements are in addition to or, where specifically stated, replace 
the existing or most recently proposed ALWTRP requirements.
    Level II or Low Risk Lobster Trap Gear for use in SAM areas would 
include all of the following characteristics:
    (1) Groundlines and buoy lines must be made of either sinking or 
neutrally buoyant line. Floating groundlines and buoy lines are 
prohibited;
    (2) Fishermen operating in offshore lobster waters within a SAM 
area must utilize a weak link at all buoys with a maximum breaking 
strength of 1,500 lbs (680.4 kg) in place of the current proposed 2,000 
lbs (907.2 kg) weak link at all the buoys. Each weak link must be 
placed as close to each individual buoy as operationally feasible (See 
figure 2);
    (3) Fishermen operating in offshore lobster waters within a SAM 
area must utilize a weak link with a maximum breaking strength of 3,780 
lbs (1,714 kg) between the surface system (all surface buoys, the high 
flyer, and associated lines) and the buoy line leading to the trawl on 
the ocean floor (See figure 2)(Note: This measure is also proposed for 
the entire offshore lobster waters area in a separate rulemaking in 
progress, 66 FR 49896, October 1, 2001); and
    (4) Fishermen operating in the offshore and nearshore lobster 
waters within the SAM areas must utilize a single buoy line to mark 
each trawl. This line must be attached to the northern or western end 
of the trawl string depending on the direction of the set. Be advised, 
that these proposed requirements on the number of buoy lines supersede 
the provision requiring one radar reflector at each end of a trawl with 
more than three traps, found at 50 CFR 697.21.
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    The single buoy line to mark each trawl is intended to further 
enhance the protection of endangered North Atlantic right whales. The 
two reflector requirement imposed under the American lobster 
regulations was designed to reduce gear conflicts. Given the critical 
juncture of North Atlantic right whale management, it is imperative 
that vessel operators understand the need to protect North Atlantic 
right whales while at the same time, respect the property of fellow 
fishers.
    Level II or Low Risk Anchored Gillnet Gear for use in SAM areas 
would include all of the following characteristics:
    (1) Groundlines, meaning the lines between the net bridle and the 
anchors, and buoy lines must be made of sinking or neutrally buoyant 
line. Floating groundlines and buoy lines are prohibited;
    (2) A weak link with a maximum breaking strength of 3,780 lbs 
(1,714 kg) must be installed between the surface system (all surface 
buoys, the high flyer, and associated lines) and the buoy line leading 
to the net panels (See figure 3);
    (3) Each net panel must have a total of 5 weak links with a maximum 
breaking strength of 1,100 lbs (498.9 kg). Net panels are typically 50 
fathoms in length, but the weak link requirements would apply to all 
variations in panel size. These weak links must include 3 floatline 
weak links. The placement of the weak links on the floatline must be at 
the center of the net panel and as close as possible to each of the 
bridle ends of the net panel. The remaining 2 weak links must be placed 
in the center of each of the up and down lines at the panel ends;
    (4) Fishermen utilizing gillnets within the SAM areas must utilize 
no more than one buoy line per net string. This buoy line must be at 
the northern or western end of the gillnet string depending on the 
direction of the set; and
    (5) All anchored gillnets, regardless of the number of net panels, 
must be securely anchored with the holding power of at least a 22 lbs 
(9.9 kg) Danforth style anchor at each end of the net string.
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            TABLE 1: Seasonal Area Management Areas SAM West Polygon-In effect from March 1- April 30
----------------------------------------------------------------------------------------------------------------
                   Point                     Latitude (North)    Longitude (West)              Comment
----------------------------------------------------------------------------------------------------------------
1                                               42 deg. 04.8'         70 deg. 10'   NE landfall of Cape Cod
                                                                                     Bay(CCB) Critical Habitat
                                                                                     (CH) at shoreline
2                                                 42 deg. 12'         70 deg. 15'   NE corner CCB CH
3                                                 42 deg. 30'         70 deg. 15'   NW Corner SAM West
4                                                 42 deg. 30'         69 deg. 24'   NE Corner SAM West
5                                               41 deg. 48.9'         69 deg. 24'   NW side of Great South
                                                                                     Channel CH
6                                                 41 deg. 45'         69 deg. 33'   runs along GSC CH
7                                                 41 deg. 45'       69 deg. 55.8'   SW landfall at Cape Cod
                                                                ..................  return along shoreline to
                                                                                     point 1
----------------------------------------------------------------------------------------------------------------


                                SAM East Polygon - In effect from May 1 - July 31
----------------------------------------------------------------------------------------------------------------
                   Point                     Latitude (North)    Longtitude (West)             Comment
----------------------------------------------------------------------------------------------------------------
1                                               41 deg. 48.9'         69 deg. 24'   NW side of GSC CH
2                                                 42 deg. 30'         69 deg. 24'   NW corner of SAM East
3                                                 42 deg. 30'        67  deg. 27'   NE corner SAM East
4                                                 41 deg. 45'         66 deg. 48'   SE corner SAM East
5                                                 41 deg. 45'         68 deg. 17'   runs to great South Channel
                                                                                     CH
6                                                 42 deg. 10'         68 deg. 31'   runs along NE side of GSC CH
                                                                                    Return along NW side of GSC
                                                                                     CH to point #1
----------------------------------------------------------------------------------------------------------------

Classification

    This proposed rule has been determined to be significant for the 
purposes of Executive Order 12866, because the proposal is 
controversial.
    Though NMFS has not prepared an IRFA or an Regulatory Impact 
Review, preliminary data on the impact of this proposed rule, if 
adopted, is available. NMFS seeks comment on this data, as well as 
additional data to use in preparation of a final regulatory flexibility 
analysis. Under the worst case scenario, vessel operators will simply 
not convert their gear under the proposed action, and not fish during 
the SAM closure. Based on an economic analysis of 2000 right whale 
sightings data, total forgone industry revenues are estimated at $5.2M 
for the lobster and sink gillnet fishery under this worst case 
scenario. However, this proposed rule may mitigate these costs by 
allowing vessels to fish in the SAM area if they convert their gear as 
described within this document. Two outcomes are possible. First, the 
cost of gear conversion may be greater or equal to potential revenues 
in SAM. In this case they would choose to fish elsewhere or not fish at 
all, but total forgone revenue would not be expected to exceed $5.2M. A 
second possible outcome is that gear conversion costs would be less 
than potential revenues earned in SAM. In this case, vessel operators 
are likely to convert their gear. If it is assumed that their catch 
rates will be the same with the gear conversion, the cost of this 
option is the sum of the gear conversion costs which is expected to be 
less than $5.2M.
    Section 608(a) of the Regulatory Flexibility Act (RFA) states that 
an agency may waive or delay completion of some or all of the 
requirements of section 603, if an emergency situation exists that 
makes compliance with the provisions of section 603 impracticable. NMFS 
has determined that an emergency situation exists that makes compliance 
with section 603 impracticable for the following reasons. The June 14, 
2001, BOs on the four fisheries subject to this proposed action 
determined that the continued operation of those fisheries is likely to 
jeopardize the continued existence of the western North Atlantic right 
whale and established an extremely short time frame for conducting the 
ALWTRT meeting to help develop a SAM program and for conducting 
rulemaking to implement a SAM program designed to remove the likelihood 
of jeopardy. The RPA to the continued operation of the fisheries 
outlined in the BOs requires issuance of the final rule for SAM by 
December 31, 2001. Also, a court order was issued on October 3, 2001, 
in litigation pertaining to the implementation of the RPA. That court 
order required the agency to issue a proposed rule to implement SAM by 
November 23, thereby making it impracticable for the agency to complete 
the analysis required under section 603 prior to publication of the 
proposed rule.

References

    Merrick, R.L.; Clapham,P.J.; Cole,T.V.N.; Gerrior,P.;Pace, R.M., 
III. 2001. Identification of seasonal area management Areas for North 
Atlantic right whale conservation. Northeast Fish. Sci. Cent. Ref. Doc. 
01-14;18p. Available from: National Marine Fisheries Service, 166 Water 
St., Woods Hole, MA 02543-1026.

List of Subjects in 50 CFR Part 229

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

    Dated: November 23, 2001.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended 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.  229.32, paragraph (g)(4) is added to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (g) * * *
    (4) Seasonal Area Management (SAM) Program. All vessels deploying 
anchored gillnet or lobster trap gear may fish in the SAM Areas as 
described in paragraphs (g)(4)(i)(A) and (g)(4)(ii)(A) of this section, 
provided the vessel complies with the gear requirements

[[Page 59404]]

during the times specified in paragraphs (g)(4)(i)(B) and (g)(4)(ii)(B) 
of this section. Copies of a chart depicting these areas are available 
from the Regional Administrator upon request.
    (i) SAM West. (A) Area. SAM West consists of all waters bounded by 
straight lines connecting the following points in the order stated:

                                SAM WEST
------------------------------------------------------------------------
                     Point                        N. Lat.      W. Long.
------------------------------------------------------------------------
SAM1                                                42 deg.  70 deg. 10'
                                                      04.8'
SAM2                                            42 deg. 12'  70 deg. 15'
SAM3                                            42 deg. 30'  70 deg. 15'
SAM4                                            42 deg. 30'  69 deg. 24'
SAM5                                                41 deg.  69 deg. 24'
                                                      48.9'
SAM6                                            41 deg. 45'  69 deg. 33'
SAM7                                            41 deg. 45'      69 deg.
                                                                   55.8'
------------------------------------------------------------------------

    (B) Gear requirements. Unless otherwise authorized by the Assistant 
Administrator, in accordance with paragraph (g)(2) of this section, 
from March 1 through April 30, no person may fish with anchored gillnet 
or lobster gear unless that person's gear complies with the following 
gear characteristics:
    (1) Anchored gillnet gear. (i) Ground line--All ground lines are 
made entirely of sinking or neutrally buoyant line.
    (ii) Buoy weak links--All buoy lines are attached to the buoy with 
a weak link having a maximum breaking strength of up to 1,100 lb (498.9 
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) Buoy line weak link--All buoy lines are attached to the buoy, 
high flyer, and buoy line leading to the net panels with a weak link 
having a maximum breaking strength of up to 3,780 lb (1,714.6 kg).
    (iv) Net panel weak link--Each net panel must have a total of five 
weak links. The breaking strength of these weak links must not exceed 
1,100 lb (498.9 kg). The weak link requirements apply to all variations 
in panel size. Three of the five weak links must be located on the 
floatline. One floatline weak link must be placed at the center of the 
net panel, and two weak links must be placed as close as possible to 
each of the bridle ends of the net panel. The remaining two of the five 
weak links must be placed in the center of each of the up and down 
lines at either end of each panel.
    (v) Buoy line--No more than one buoy line per net string may be 
used, and it must be deployed at the northern or western end of the 
gillnet string depending on the direction of the set.
    (vi) Gillnet anchor--All anchored gillnets, regardless of the 
number of net panels, must be securely anchored with a holding power of 
at least a 22 lb (9.9 kg) Danforth-style anchor at each end of the net 
string.
    (2) Lobster Trap gear. (i) Sinking ground line--All ground lines 
must be made entirely of sinking or neutrally buoyant line.
    (ii) Offshore Lobster buoy weak links--All buoy lines must be 
attached to the buoy with a weak link having a maximum breaking 
strength of up to 1,500 lb (680.4 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) Offshore Lobster buoy line weak link--All buoy lines must be 
attached to the buoy, high flyer, and buoy line leading to the lobster 
trap with a weak link having a maximum breaking strength of up to 3,780 
lb (1,714.6 kg).
    (iv) Buoy line--No more than one buoy line per trawl is allowed. 
The buoy line must be attached to the northern or western end of the 
trawl string depending on the direction of the set. These requirements 
supersede the requirements found at Sec.  697.21, which require one 
radar reflector at each end of a trawl with more than three traps.
    (ii) SAM East. (A) Area. SAM East consists of all waters bounded by 
straight lines connecting the following points in the order stated:

                                SAM EAST
------------------------------------------------------------------------
                     Point                        N. Lat.      W. Long.
------------------------------------------------------------------------
SAM5                                                41 deg.  69 deg. 24'
                                                      48.9'
SAM4                                            42 deg. 30'  69 deg. 24'
SAM8                                            42 deg. 30'  67 deg. 26'
SAM9                                            42 deg. 30'  66 deg. 50'
SAM10                                           41 deg. 45'  66 deg. 50'
SAM11                                           41 deg. 45'  68 deg. 17'
SAM12                                           42 deg. 10'  68 deg. 31'
------------------------------------------------------------------------

    (B) Gear requirements. Unless otherwise authorized by the Assistant 
Administrator, in accordance with paragraph (g)(2) of this section, 
from May 1 through July 31, no person may fish with anchored gillnet or 
lobster gear unless that person's gear complies with the gear 
characteristics found at paragraph (g)(4)(i)(B) of this section.
[FR Doc. 01-29601 Filed 11-23-01; 4:38 pm]
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