[Federal Register Volume 68, Number 165 (Tuesday, August 26, 2003)]
[Rules and Regulations]
[Pages 51195-51201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21606]



[[Page 51195]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030221039-3195-02; I.D. 081602B]
RIN 0648-AQ04


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations that 
implement the Atlantic Large Whale Take Reduction Plan (ALWTRP) to 
identify gear modifications that sufficiently reduce the risk of 
entanglement to western North Atlantic right whales (right whales) 
under the Dynamic Area Management (DAM) program and, as such, allows 
NMFS to utilize the option of allowing gear with certain modifications 
within a DAM zone. Specifically, NMFS identifies anchored gillnet and 
lobster trap/pot gear modifications that could be allowed within a DAM 
zone. This final rule includes a provision to correct and clarify the 
regulations implementing the Seasonal Area Management (SAM) program 
with respect to lobster trap gear in Northern Inshore State Lobster 
Waters and Northern Nearshore Lobster Waters that overlap with a SAM 
area.

DATES: This final rule is effective September 25, 2003.

ADDRESSES: Copies of the final Environmental Assessment/Regulatory 
Impact Review for this action can be obtained from the ALWTRP website 
(see SUPPLEMENTARY INFORMATION). Atlantic Large Whale Take Reduction 
Team (ALWTRT) meeting summaries, and progress reports on implementation 
of the ALWTRP may be obtained by writing Diane Borggaard, NMFS, 
Northeast Region, 1 Blackburn Drive, Gloucester, MA 01930 or Juan 
Levesque, NMFS, Southeast Region, 9721 Executive Center Drive, 
St.Petersburg, FL 33702-2432. For additional addresses and web sites 
for document availability see SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast 
Region, 978-281-9328 ext. 6503; or Kristy Long, NMFS, Office of 
Protected Resources, 301-713-1401 ext. 171.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP 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 Street, Woods Hole, MA 02543 or can be 
downloaded from the Internet at http://www.wh.whoi.edu/psb/sar2002.pdf. 
In addition, copies of the documents entitled ``Defining Triggers for 
Temporary Area Closures to Protect Right Whales from Entanglements: 
Issues and Options'' and ``Identification of Seasonal Area Management 
Zones for North Atlantic Right Whale Conservation'' are available by 
writing to Diane Borggaard, NMFS, Northeast Region, 1 Blackburn Drive, 
Gloucester, MA 01930 or can be downloaded from the Internet at http://www.nero.nmfs.gov/whaletrp/.

Background

    This final rule identifies acceptable gear that would sufficiently 
reduce the risk of entanglement to right whales and could be allowed 
under the DAM program (67 FR 1133, January 9, 2002; 67 FR 65722, 
October 28, 2002). This final rule completes the regulatory actions 
planned and described in the recent amendments to the ALWTRP, which 
included the SAM program (67 FR 1142, January 9, 2002; 67 FR 65722, 
October 28, 2002), expanded gear modifications (67 FR 1300, January 10, 
2002; 67 FR 15493, April 2, 2002), as well as the DAM program. Details 
concerning the justification for and development of the rule were 
provided in the preamble to the proposed rule (68 FR 10195; March 4, 
2003) and, therefore, are not repeated here.

Lobster Trap and Anchored Gillnet Gear Modifications for Use in DAM 
Zones

    The final gear modifications to the ALWTRP DAM program are based on 
the SAM anchored gillnet and lobster trap/pot gear, with allowance for 
a second buoy line and floating line on the bottom third of each buoy 
line, which are described below. These requirements are in addition to 
the gear modifications currently required under the ALWTRP for the 
Offshore Lobster Waters, Northern Nearshore Lobster Waters, Southern 
Nearshore Lobster Waters, Northern Inshore State Lobster Waters, Great 
South Channel Restricted Lobster Area (July 1 through March 31), 
Stellwagen Bank/Jeffreys Ledge Restricted Area (lobster trap and 
gillnet area descriptions), Cape Cod Bay Restricted Area (lobster trap 
and gillnet area descriptions; May 16 through December 31), Great South 
Channel Restricted Gillnet Area (July 1 through March 31), Great South 
Channel Sliver Restricted Area (July 1 through March 31), Mid-Atlantic 
Coastal Waters (gillnet area description) and Other Northeast Gillnet 
Waters. If the requirements and exceptions for gear modifications in a 
DAM zone as provided in this final rule differ from other ALWTRP 
requirements for any overlapping areas and times, then the more 
restrictive requirements will apply in the DAM zone. Time periods for 
critical habitat are incorporated to clarify when these are subject to 
the DAM program, which, as described (66 FR 50160, October 2, 2001; 67 
FR 1142, January 9, 2002) and implemented by NMFS, are time periods 
when the requirements for critical habitat areas are no more 
conservative than the surrounding waters. Additionally, DAM gear 
modification requirements under the DAM program are applicable to 
ALWTRP management areas north of 40[deg] N. latitude where a DAM zone 
could be triggered.

Lobster Trap Gear

    In addition to the universal gear and gear marking requirements, 
fishermen utilizing lobster trap gear within the portion of the 
Northern Nearshore Lobster Waters, Southern Nearshore Lobster Waters, 
Northern Inshore State Lobster Waters, Cape Cod Bay Restricted Area 
(May 16 through December 31), and Stellwagen Bank/Jeffreys Ledge 
Restricted Area that overlap with a DAM zone may be required to utilize 
all the following gear modifications when a DAM zone is in effect:
    1. Groundlines must be made of either sinking or neutrally buoyant 
line. Floating groundlines are prohibited;
    2. Buoy lines must be made of either sinking or neutrally buoyant 
line, except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line;
    3. A weak link with a maximum breaking strength of 600 lb (272.4 
kg) must be placed at all buoys; and
    4. Fishermen are allowed to use two buoy lines per trawl string.
    In addition to the universal gear and gear marking requirements, 
fishermen utilizing lobster trap gear within the portion of the Great 
South Channel Restricted Lobster Area (July 1 through March 31) and 
Offshore Lobster Waters

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Area that overlap with a DAM zone may be required to utilize all the 
following gear modifications when a DAM zone is in effect:
    1. Groundlines must be made of either sinking or neutrally buoyant 
line. Floating groundlines are prohibited;
    2. Buoy lines must be made of either sinking or neutrally buoyant 
line, except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line;
    3. A weak link with a maximum breaking strength of 1,500 lb (680.4 
kg) must be placed at all buoys; and
    4. Fishermen are allowed to use two buoy lines per trawl string.

Anchored Gillnet Gear

    In addition to the universal gear and gear marking requirements, 
fishermen utilizing anchored gillnet gear within the portion of the 
Other Northeast Gillnet Waters, Cape Cod Bay Restricted Area (May 16 
through December 31), Stellwagen Bank/Jeffreys Ledge Restricted Area, 
Great South Channel Restricted Gillnet Area (July 1 through March 31), 
Great South Channel Sliver Restricted Area (July 1 through March 31), 
and Mid-Atlantic Coastal Waters that overlap with a DAM zone may be 
required to utilize all the following gear modifications when a DAM 
zone is in effect:
    1. Groundlines must be made of sinking or neutrally buoyant line. 
Floating groundlines are prohibited;
    2. Buoy lines must be made of either sinking or neutrally buoyant 
line, except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line;
    3. A weak link with a maximum breaking strength of 1,100 lb (498.8 
kg) must be placed at all buoys;
    4. Each net panel must have a total of 5 weak links each with a 
maximum breaking strength of 1,100-lb (498.8-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 as follows: one at the center of the net panel and one 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;
    5. Fishermen are allowed to use two buoy lines per net string; and
    6. All anchored gillnets, regardless of the number of net panels, 
must be securely anchored with the holding power of at least a 22-lb 
(10.0-kg) Danforth style anchor at each end of the net string.

Clarification of Weak Link Requirement for Northern Inshore State 
Lobster Waters and Northern Nearshore Lobster Waters that Overlap With 
SAM Areas

    Details concerning the justification for and clarification of the 
weak link requirement for Northern Inshore State Lobster Waters and 
Northern Nearshore Lobster Waters that Overlap with SAM Areas were 
provided in the preamble to the proposed rule (68 FR 10195; March 4, 
2003) and, therefore, are not repeated here. NMFS includes in this 
final rule a provision that lobster trap gear in Northern Inshore State 
Lobster Waters and Northern Nearshore Lobster Waters that overlaps with 
a SAM area must have a weak link with a maximum breaking strength of 
600-lb (272.4-kg) at all buoys.

Comments and Responses

    Approximately 12 letters of comment were received during the public 
comment period on the proposed rule, which ended on April 3, 2003. A 
complete summary of the comments and NMFS' responses is provided here.

General Comments

    Comment 1: One commenter expressed support for the preferred 
alternative because they believe it will provide the guidance necessary 
for fishermen to modify their gear in order to minimize impacts on 
marine mammals.
    Response: NMFS appreciates the support and reiterates that 
identifying gear modifications in the final rule is necessary to 
complete the DAM program as an element of the Reasonable and Prudent 
Alternative (RPA) required under the Endangered Species Act (ESA) to 
protect right whales and avoid jeopardy. In addition, through the 
implementation of the gear modifications identified for potential use 
in a DAM zone, NMFS acknowledges the preference for management measures 
that allow fishing to continue with modified gear inside designated DAM 
zones while also sufficiently reducing the risk of serious injury and 
mortality to right whales from entanglements.
    Comment 2: One commenter disagreed with the conclusion made in the 
proposed rule for the SAM program that the gear modifications prevent 
serious injury or mortality to right whales.
    Response: NMFS recognizes the practical difficulties associated 
with identifying gear modifications designed to sufficiently reduce the 
risk of serious injury or mortality to right whales. As indicated in 
the Final Environmental Assessments for the SAM interim final rule and 
this final rule, it is not feasible, in a typical scientific fashion, 
to conduct and evaluate experiments on right whale interactions with 
modified gear configurations. For obvious reasons, NMFS cannot conduct 
field tests or even laboratory experiments on right whales to collect 
data. However, NMFS is able to scrutinize past entanglements, analyze 
these events, and develop ways to modify gear in order to sufficiently 
reduce risk of serious injury and mortality from future entanglements.
    Comment 3: One commenter disagrees that interactions between large 
marine mammals and fixed gear types, such as gillnets, have a major 
impact. Another commenter disagreed with the assessment that the arc 
created by floating line between traps in a trawl posed a threat to 
whales.
    Response: While it is often difficult to identify the specific gear 
type involved in each entanglement, NMFS does have evidence that fixed 
gear types, such as gillnets, have an impact on large whales. In 2001, 
there were two confirmed and several unconfirmed entanglements of large 
whales where gillnet gear was recovered. For example, in February 2001, 
gillnet gear was recovered from an entangled humpback whale off the 
coast of North Carolina. In April 2001, gillnet gear was recovered from 
an entangled humpback whale found dead near Virginia Beach, VA.
    Floating line between traps has also been implicated in large whale 
entanglements; NMFS has evidence that establishes the risk associated 
with this gear configuration. Underwater video footage of typical 
lobster gear with floating groundline between traps revealed that the 
floating groundline forms large loops in the water column between 
traps. Similar underwater video footage of neutrally buoyant line 
between traps indicated that it did not have the same vertical profile 
as floating line; rather, it was located on or near the bottom, thus 
reducing the risk of entangling a large whale. Additionally, in the SAM 
proposed rule (66 FR 59394, November 28, 2001), NMFS discussed an 
analysis of gear profiles in the Offshore Lobster Waters area, which 
estimated that an 85% reduction in floating line would result if 
floating line were replaced by sinking or neutrally buoyant line in SAM 
areas. Therefore, NMFS expects that by eliminating most floating line 
and requiring sinking or neutrally buoyant line in a DAM zone,

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a large percentage of the line within the water column would be 
eliminated.
    Comment 4: One commenter suggested that NMFS add new mandatory 
provisions to all its permits or impose new mandatory regulations on 
fishing vessel personnel regarding marine trash and debris awareness 
and elimination, vessel strike avoidance, and injured/dead protected 
species reporting.
    Response: NMFS appreciates the concerns raised by the commenter; 
however, these activities fall outside of the scope of this final rule 
under the DAM program in the ALWTRP. In addition, marine trash and 
debris awareness and elimination falls outside the scope for 
regulations promulgated under take reduction plans. Specifically, 
section 118 of the Marine Mammal Protection Act (MMPA), which 
authorizes NMFS to establish take reduction teams and develop plans for 
the purpose of reducing serious injury and mortality to marine mammals, 
is designed to address interactions between commercial fishing gear and 
marine mammals. Similarly, although ship strikes and the need to 
mitigate the risks posed by vessel traffic are important to large whale 
conservation and recovery, the take reduction team is established to 
deal solely with the interactions between marine mammals and commercial 
fishing. NMFS is developing a separate strategy to address ship strikes 
and will work with interested agencies and parties to implement that 
strategy. Finally, MMPA section 118 and NMFS implementing regulations 
have separate requirements for reporting incidental mortality and 
injury of marine mammals in the course of fishing operations (16 U.S.C. 
1387(e) and 50 CFR 229.6) and similar requirements may be imposed under 
the ESA as necessary for the conservation of other protected species.
    Comment 5: One commenter requested that NMFS immediately establish 
regulations to require all fish and shellfish traps and all gillnets in 
U.S. waters north of central Florida to use sinking or neutrally 
buoyant line for ground and buoy lines and a single buoy to mark gear.
    Response: The DAM program, under which this final rule is 
promulgated, only applies to anchored gillnet and lobster trap gear in 
waters north of 40[deg] N. latitude. Therefore, the gear modifications 
identified in this final rule would only be required in these waters 
and for these gear types in the event that a gear modification option 
is selected for implementation inside a DAM zone. However, NMFS and the 
ALWTRT have been discussing the need for bringing other fisheries under 
the auspices of the ALWTRP. Representatives from new trap/pot 
fisheries, such as hagfish, red crab, and black sea bass, have been 
added to the ALWTRT for the purpose of discussing, developing, and 
applying risk reduction measures to these fisheries. NMFS and the 
ALWTRT will continue to investigate the need to add representatives 
from other fisheries to the Team as warranted.
    Comment 6: Several commenters encouraged NMFS to replace the DAM 
and SAM program with universal gear modifications to protect all large 
whales from entanglement.
    Response: NMFS and the ALWTRT have identified ``universal'' or 
expanded gear modifications as a long term objective with the potential 
for replacing DAM and SAM. However, as indicated in the Biological 
Opinion that identified DAM, SAM, and expanded gear modifications, 
these three programs act as multiple management components for one RPA 
to avoid jeopardy to right whales. Therefore, in order to remove DAM 
and SAM and still avoid jeopardy, NMFS must replace these programs with 
management measures of at least equal or more conservation benefit to 
right whales. NMFS hopes that the implementation of DAM gear 
modification options through this final rule will help alleviate some 
of the hardship experienced by the fishing community that might 
otherwise be caused by requiring or requesting the complete removal of 
lobster trap/pot and anchored gillnet gear from a DAM zone while still 
protecting right whales.

DAM Gear Modification Comments

    Comment 7: One commenter proposed that NMFS explore the feasibility 
of year-round breakaway gear, with in-season modifications, such as the 
anchoring requirement, when concentrations of large mammals are 
observed.
    Response: NMFS and the ALWTRT have been developing and discussing 
alternative management measures, including year-round, ``universal'' or 
expanded gear modifications. However, under the current RPA, DAM, SAM, 
and additional gear modifications have been identified as multiple 
management components necessary to avoid jeopardy. In the meantime, 
NMFS will continue to work with the ALWTRT, fishermen, scientists and 
fishing gear manufacturers to develop and test gear modifications. NMFS 
will continue to discuss the need for additional gear modifications 
requirements under the ALWTRP with the ALWTRT.
    Comment 8: Several commenters oppose the proposal to require the 
use of a single endline, also referred to as a buoy line. One commenter 
suggests allowing the use of two endlines on gillnets with Danforth-
style anchors at each end to ensure the proper operation of weak links 
on the gear. In addition, this commenter and others felt that NMFS has 
failed to analyze the increased potential for gear conflicts and 
financial loss to fixed gear fishermen by prohibiting the use of two 
endlines. One commenter suggested that NMFS consider allowing fishermen 
to replace the second endline with a very weak buoy line for the 
purpose of marking the location of the gear during the 15-day DAM 
restricted period. Several commenters felt that this provision would 
lead to increased lobster gear loss because it is common for lobstermen 
to lose one buoy line. Finally, several commenters felt that 
prohibiting the use of two buoy lines may encourage fishermen to split 
their trawls into smaller units (i.e., to avoid increased gear conflict 
and gear loss), which could result in an increase in vertical lines in 
the water column, thereby defeating the purpose of requiring a single 
buoy line (i.e., to reduce the number of lines in the water). 
Additionally, commenters noted that two buoy lines should be allowed to 
minimize the risk to human safety that would result if fishermen could 
not haul from either end of a net string or trap trawl in adverse 
weather conditions.
    Response: Since publication of the proposed rule, NMFS has become 
aware that requiring gear modifications with one buoy line in a DAM 
area may not necessarily result in a 50-percent reduction of vertical 
lines in the water column as fishermen may fish shorter trawls, which 
may result in the same or a greater number of buoy lines. Allowing SAM 
gear modifications with a second endline and one third polypropylene on 
the bottom third of the buoy line reduces both the potential for 
interaction through a significant reduction in floating line and the 
potential for serious injury or mortality through the incorporation of 
additional weak links at reduced breaking strengths. In addition, 
having two endlines reduces the probability of gear conflicts and lost 
gear. Thus, this final rule implements a DAM gear modifications option 
that allows fishermen to retain a second endline, which addresses both 
gear conflict and financial burden concerns expressed by the commenter.
    Comment 9: One commenter suggested that NMFS reconsider the

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proposed prohibition of floating line because sinking and/or neutrally 
buoyant line is not compatible with all bottom types and all 
conditions.
    Response: NMFS has reconsidered the prohibition on floating line in 
the proposed rule with respect to endlines only. In this final rule, 
endlines will be required to be composed entirely of either sinking 
and/or neutrally buoyant line except for the bottom third of the line, 
which may be made of floating line. Floating groundlines will be 
prohibited and must, therefore, be composed entirely of sinking or 
neutrally buoyant line. See also response to Comment 13.
    Comment 10: Several commenters suggested that NMFS consider the 
current management measures in the Cape Cod Bay Critical Habitat Area 
for guidance with respect to regulating buoy lines. These regulations 
allow lobstermen to fish with two buoy lines on a trawl and allows for 
a section of floating line on the buoy line.
    Response: The final rule implements a lobster gear modification 
option for DAM that is similar to those currently required in Cape Cod 
Bay from January 1 through May 15.
    Comment 11: One commenter felt that it was premature for NMFS to 
suggest that the SAM gear modifications (e.g., the use of 600-lb 
(272.4-kg) and 1,100-lb (498.8-kg) weak links) have been demonstrated 
to prevent serious injury or mortality to right whales.
    Response: See response to Comment 2.
    Comment 12: Two commenters suggested that NMFS should adopt a more 
regional approach to developing gear modifications, which would take 
into account unique bathymetric features, especially those found along 
the coast of Maine. In addition, one of these commenters expressed 
opposition to the proposal for eliminating one buoy line, the 
prohibition on floating line on the bottom 1/3 of the endline, and the 
prohibition on floating groundline.
    Response: NMFS is working with the ALWTRT, including the Maine 
Department of Marine Resources, to understand the unique bathymetric 
features throughout the Gulf of Maine and fishing operations in these 
areas. NMFS considers numerous factors when developing regulations to 
reduce interactions between large whales and commercial fisheries. For 
example, weak link requirements under the ALWTRP vary by fishery and 
management area. See also responses to Comments 9 and 13.
    Comment 13: One commenter expressed opposition to the proposed 
requirement that buoy lines be comprised of entirely sinking or 
neutrally buoyant line because recent research from flume-tank testing 
of scale models suggests that this gear requirement has little or no 
conservation value.
    Response: Based on this recent research, NMFS has reconsidered the 
prohibition on floating line identified in the proposed rule with 
respect to endlines only. The flume-tank testing results support 
underwater video footage taken by NMFS and discussed in the 
Environmental Assessment/Regulatory Impact Review (EA/RIR), which 
demonstrates that allowing one-third polypropylene line on the bottom 
third of the buoy line does not necessarily produce a loop in the water 
column, due to current and tidal action on the surface system, and, 
therefore, would not increase risk to right whales. NMFS does believe 
that there is conservation value in requiring two-thirds of the buoy 
line to be sinking and/or neutrally buoyant line, similar to the buoy 
line gear modification requirement in Cape Cod Bay Critical Habitat. 
Thus, endlines will be required to be composed entirely of either 
sinking and/or neutrally buoyant line except for the bottom third of 
the line, which may be made of floating line.
    Comment 14: One commenter expressed support for the proposed 
requirement that groundlines be comprised entirely of sinking or 
neutrally buoyant line, but suggested that NMFS allow a phase-in period 
for fishermen to change their gear.
    Response: This final rule will be effective 30-days after date of 
publication in the Federal Register. If a DAM zone is triggered after 
this time and NMFS requires gear modifications in the DAM zone, 
fishermen will be required to change their groundlines over to sinking 
or neutrally buoyant line in order to continue fishing inside the DAM 
zone during the restricted period if their groundlines are not 
currently configured in this manner. NMFS understands that some 
fishermen are already using sinking or neutrally buoyant line in their 
groundline.
    Comment 15: One commenter asked NMFS to consider allowing floating 
endlines because the free end of the rope would be at the surface and 
would allow the fishermen to access the line more easily than sinking 
or neutrally buoyant line.
    Response: The final rule will allow fishermen to use floating line 
on the bottom third of the endline. Under the regulations implementing 
the ALWTRP, gillnet and lobster trap fishermen are prohibited from 
having any portion of the buoy line that is directly connected to the 
gear at the ocean bottom from floating at the surface at any time. If 
more than one buoy is attached to a single buoy line or if a high flyer 
and a buoy are used together on a single buoy line, floating line may 
be used between these objects.

Rulemaking Process Comments

    Comment 16: One commenter felt that the 30-day comment period was 
too short and should be extended for an additional 30 days.
    Response: NMFS considers the 30-day comment period on the DAM gear 
modifications proposed rule appropriate in light of the need to 
complete the DAM program as it was intended when initially promulgated 
in 2002. Because the DAM gear modifications proposed rule is an 
amendment to the already established DAM program, NMFS considers a 30-
day comment period sufficient.
    Comment 17: One commenter felt that NMFS did not consider enough 
options in the proposed rule and recommends additional options, such as 
the gear modifications accepted in Cape Cod Bay during the high use 
period or the prohibitions in place in the Great South Channel.
    Response: An alternative with gear modifications similar to those 
currently implemented in Cape Cod Bay was analyzed as an option in the 
proposed rule. That alternative would allow fishermen to retain a 
second endline, and allow each endline to be comprised entirely of 
sinking or neutrally buoyant line except for the bottom third, which 
may be floating line. Based in part on comments received, NMFS is now 
adopting this option and it will be implemented through this final 
rule.

DAM Implementation Comments

    Comment 18: One commenter felt that NMFS has failed to implement 
DAM properly and that, in the instances when DAM zones have been 
declared, the request for voluntary action alone is insufficient.
    Response: In its implementation of the DAM program, NMFS has acted 
in accordance with the DAM rule and internal protocols designed by NMFS 
to respond to DAM triggers.
    Comment 19: One commenter felt that it is unrealistic to require 
fishermen to modify gear within 48 hours of implementing a DAM zone.
    Response: NMFS appreciates the time and effort involved in hauling 
fishing gear and modifying it in an area designated for DAM. NMFS also 
understands that some fishermen are already using sinking or neutrally 
buoyant line in their groundline.

[[Page 51199]]

 However, if a DAM action is triggered and NMFS implements gear 
modifications in the DAM zone, fishermen will be required to comply 
with the specified gear modifications or remove their gear from the 
area. In order to provide fishermen with enough time to respond to 
restrictions in a DAM zone, NMFS will issue a notice at the time the 
action is filed with the Office of the Federal Register, which is 
usually 3 to 5 days prior to the regulation being published in the 
Federal Register. Once the decision has been made to modify gear inside 
a DAM zone, NMFS will notify the commercial fisheries affected as 
quickly and comprehensively as possible. In addition, NMFS will issue 
an alert via email to all ALWTRT members and post the alert on the 
website at www.nero.nmfs.gov/whaletrp/. NMFS hopes that members of the 
ALWTRT who receive an alert will circulate the information to other 
interested parties to help ensure that the fishermen who may have to 
comply with the gear restrictions in a DAM zone have time to respond. 
Fishermen, industry representatives, environmental groups, and all 
others interested in receiving alerts and notices over the Internet 
should provide their email address to the Northeast Regional Office 
(see ADDRESSES). NMFS will also mail letters providing notice to those 
who request it by contacting the Northeast Regional Office (See 
ADDRESSES).
    Comment 20: One commenter suggested that NMFS exempt small-scale 
fishing operations in state waters from the DAM program. Another 
commenter expressed opposition to any DAMs or SAMs in state waters.
    Response: The MMPA applies to state waters and there have been 
aggregations of right whales, which the DAM and SAM rules are designed 
to address, in state waters. NMFS is currently investigating the 
feasibility and practicality of revising the exempted waters of the 
ALWTRP to possibly include other inland areas where the presence of 
large whales is rare or non-existent.

Changes From the Proposed Rule

    In the March 4, 2003 proposed rule (68 FR 10195), NMFS identified 
as its preferred alternative gear modifications for anchored gillnet 
and lobster trap/pot gear that could be allowed within a DAM zone. In 
the preamble to the proposed rule, NMFS sought comment from the public 
on the proposed regulations and the alternatives analyzed. Based on 
comments received during the public comment period, and as explained 
below, NMFS has concluded that its original preferred alternative may 
not afford the level of protection to right whales as one of the other 
alternatives discussed in the EA/RIR. Therefore, NMFS has determined 
that the alternative identifying SAM gear modifications with the 
allowance for a second endline and floating line on the bottom third of 
each endline should be implemented as gear that could be allowed within 
a DAM zone.
    Comments received from the public requested that NMFS identify gear 
modifications similar to those currently required by the ALWTRP in Cape 
Cod Bay Critical Habitat during the high use time period for right 
whales (January 1 - May 15). The Cape Cod Bay Critical Habitat gear 
requirements allow two buoy lines with floating line on the bottom 
third of each endline. These gear modifications were analyzed in the 
Draft and Final EA/RIR. Based on this analysis, NMFS believes that this 
gear sufficiently reduces the risk of entanglement to right whales. 
This gear is currently allowed in a critical habitat area during the 
time period when high concentrations of whales occur in the area. 
Additionally, information received through the comment period supports 
underwater video footage taken by NMFS and discussed in the EA/RIR, 
which demonstrates that, due to current and tidal action on the surface 
system, allowing one-third polypropylene line on the bottom third of 
the buoy line does not typically produce a loop in the water column, 
which could increase risk to right whales. Since publication of the 
proposed rule, NMFS has determined that requiring gear modifications 
with one buoy line in a DAM area may not necessarily result in a 50-
percent reduction in vertical line in the water column as fishermen may 
fish shorter trawls, which may result in the same or a greater number 
of buoy lines. Allowing SAM gear modifications with a second endline 
and one third polypropylene line on the bottom third of the buoy line 
in DAM zones reduces both the potential for interaction through a 
significant reduction in floating line (in the groundline) and the 
potential for serious injury or mortality through the incorporation of 
additional weak links at reduced breaking strengths. Thus, DAM gear 
modifications, including replacing floating line with neutrally buoyant 
and/or sinking line in the groundline, installing additional weak 
links, and reducing breaking strengths for weak links, sufficiently 
reduces the risk of serious injury or mortality to right whales in DAM 
zones.

Classification

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    This final rule would identify gear modifications that reduce the 
risk of entanglement to right whales sufficiently to be an option under 
the DAM program. The objective of this final rule, issued pursuant to 
section 118 of the MMPA, is to reduce the level of serious injury and 
mortality of right whales in East Coast lobster trap and finfish 
gillnet fisheries. Additionally, this final rule enables NMFS to 
exercise the full range of management options that the agency intended 
to be available under the DAM program.
    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for 
this final rule. A copy of the FRFA is available from NMFS (see 
ADDRESSES). Four alternatives, including a status quo or no action 
alternative, the preferred alternative (PA), and two other alternatives 
were evaluated using a retrospective analysis based on 2000 right whale 
sightings data and 2000 Vessel Trip Report (VTR) data. Under all 
alternatives, from June 20th to July 6th, 45 vessels (29 lobster 
vessels and 16 sink gillnet vessels) were affected by a DAM zone. A 
summary of the analysis follows:
    1. NMFS considered a ``no action'' or status quo alternative that 
would result in no changes to the current measures under the ALWTRP. 
The no action alternative would result in NMFS only having the options 
of requiring the removal of all lobster trap and anchored gillnet gear 
from a DAM zone or issuing an alert requesting the voluntary removal of 
all gear. NMFS rejected this alternative as NMFS would not be able to 
exercise the full range of management options that the agency intended 
to be available under the DAM program.
    2. NMFS considered an alternative (NPA 1) that would allow SAM gear 
modifications to be used under the DAM program. SAM gear modifications 
include, among other requirements, the use of neutrally buoyant or 
sinking line on all ground lines and buoy lines and restricts fishermen 
to one endline (buoy line) per trawl or string. Due to comments 
received, NMFS understands that requiring gear modifications with one 
buoy line in a DAM area may result in fishermen splitting trawls or 
strings into shorter trawls or strings (to avoid increased gear 
conflict and gear loss), which may result in the same or a greater 
number of buoy lines, thus increasing the risk to whales. Furthermore, 
comments received and a study conducted after publication of the

[[Page 51200]]

proposed rule supports underwater video footage taken by NMFS and 
discussed in the EA/RIR. This information indicates that, due to 
current and tidal action on the surface system, allowing one- third 
polypropylene line on the bottom third of the buoy line does not 
typically produce a loop in the water column, and, therefore, does not 
increase risk to right whales.
    3. The option selected in this final rule will implement SAM gear 
modifications with two endlines (buoy lines) and floating line on the 
bottom third of each endline. These are similar gear modifications 
required under the ALWTRP in Cape Cod Bay Critical Habitat during the 
high use time period for right whales (January 1 - May 15). NMFS 
believes that this gear, which is currently required in a critical 
habitat area during the time period when whales occur in the area, 
sufficiently reduces the risk of entanglement to right whales.
    4. NMFS considered and rejected an alternative (NPA 2) that would 
implement SAM gear modifications with two endlines (buoy lines) and 
require that the buoy lines be composed entirely of sinking or 
neutrally buoyant line. NMFS rejected this alternative because 
information received during the comment period supports preliminary 
investigations by NMFS, which demonstrates that due to current and 
tidal action on the surface system, allowing some floating line on the 
buoy line does not typically produce a loop in the water column and, 
therefore, would not increase risk to right whales.
    NMFS has taken steps to minimize the economic impact on small 
entities through this final rule by establishing the option of 
utilizing gear modifications rather than completely closing DAM areas.
    NMFS received two public comments relating to the economic impacts 
of this final rule. These comments were considered by NMFS before it 
approved this final rule and are summarized by NMFS in the ``Comments 
and Responses'' section of the preamble to this final rule, as comment/
response number eight. Changes to the rule were made, in part, as a 
result of these and other public comments.
    The small entities affected by this final rule are anchored gillnet 
and lobster trap fishermen fishing north of 40[deg] N. latitude. Since 
DAM is used to respond to unusual and unexpected sightings of right 
whales, it is difficult for NMFS to predict exactly where DAM zones may 
be implemented in the future. Therefore, providing an accurate estimate 
of the number of small entities that will be affected is problematic. 
In the northeast, there are potentially 7,147 vessels fishing lobster 
gear and 312 vessels fishing sink gillnet gear (Bisack 2000). However, 
NMFS does not expect that number of vessels to be affected by any one 
DAM zone because of the limited size and duration of a DAM zone. Data 
from aerial surveys in 2000 were used to retrospectively evaluate the 
use of the recommended DAM triggers. Based on the analysis of this 
data, six DAM zones would have been triggered in 2000. Four of the six 
hypothetical DAM zones would have been subsumed under the SAM program 
and the other DAM zone would have occurred in Canadian waters, which 
are outside of U.S. jurisdiction. Therefore, the impacts were assessed 
with respect to one hypothetical DAM zone from June 20 to July 6, 2000. 
For example, based on 2000 right whale sightings data and 2000 VTR data 
from June 20th to July 6th, the final rule would have affected 45 
lobster and sink gillnet vessels (29 lobster vessels and 16 sink 
gillnet vessels), which represents 0.4 percent of the vessels 
(0.004=29/7,147 lobster vessels) associated with the lobster fleet and 
5.1 percent of the vessels (0.051=16/312 sink gillnet vessels) 
associated with the sink gillnet fleet in the northeast.
    This final rule contains no reporting, recordkeeping, or other 
compliance requirements. NMFS determined that this action is consistent 
to the maximum extent practicable with the approved coastal management 
program of the U.S. Atlantic coastal states. This determination was 
submitted for review by the responsible state agencies under section 
307 of the Coastal Zone Management Act. No state disagreed with our 
conclusion that this final rule is consistent with the enforceable 
policies of the approved coastal management program for that state.
    This final rule contains policies with federalism implications as 
that term is defined in Executive Order 13132. Accordingly, the 
Assistant Secretary for Legislative and Intergovernmental Affairs 
provided notice of the proposed action to the appropriate official(s) 
of affected state, local, and/or tribal governments. No comments on the 
federalism implications of the proposed action were received in 
response to this notification. However, two commenters did respond on 
the federalism implications during the comment period for the proposed 
rule. The comment is characterized and responded to by NMFS in the 
``Comments and Responses'' section of the preamble to this final rule, 
as comment/response number twenty. No changes to the rule were made as 
a result of the comment received.
    This final rule would also clarify that vessels in Northern Inshore 
State and Northern Nearshore Lobster Waters must install and use a 600 
lb (272.4 kg) weak link at each buoy when fishing in SAM West during 
the time it overlaps the Northern Inshore State and Northern Nearshore 
Lobster Waters. The impacts of this requirement on small entities fall 
within the scope of the regulatory flexibility analyses performed in 
conjunction with the original SAM proposed and interim final rules. 
Among other requirements, the regulations implementing the ALWTRP 
currently require lobster trap fishermen in Northern Nearshore Lobster 
Waters to attach a weak link at the buoy with a breaking strength of 
600-lb (272.4-kg) or less, and also includes this same weak link 
requirement as an option from the Lobster Take Reduction Technology 
List for Northern Inshore State Lobster Waters. Therefore, pursuant to 
the Regulatory Flexibility Act, 5 U.S.C. 605(a) and (c), no further 
analysis is required. Copies of the SAM EA/RIR are available upon 
request (see ADDRESSES).

List of Subjects in 50 CFR Part 229

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

    Dated: August 19, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 229 is amended as 
follows:

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

0
1. The authority citation for part 229 continues to read as follows:

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

0
2. In Sec.  229.32, paragraph (g)(3)(iii)(B) is revised and 
(g)(4)(i)(B)(2)(ii) is added to read as follows:


Sec.  229.32  Atlantic large whale take reduction plan regulations.

* * * * *
    (g) * * *
    (3) * * *
    (iii) * * *
    (B) Allow fishing within a DAM zone with anchored gillnet and 
lobster trap gear, provided such gear satisfies the requirements 
specified in paragraphs (g)(4)(i)(B)(1) and (g)(4)(i)(B)(2) of this 
section, except that a second buoy line

[[Page 51201]]

and a section of floating line in the bottom portion of each line not 
to exceed one-third the overall length of the buoy line are allowed 
within a DAM zone. These requirements are in addition to requirements 
found in Sec.  229.32 (b) through (d) but supersede them when the 
requirements in paragraphs (g)(4)(i)(B)(1) and (g)(4)(i)(B)(2) of this 
section, with the exception that a second buoy line and a section of 
floating line in the bottom portion of each line not to exceed one-
third the overall length of the buoy line are allowed within a DAM 
zone, are more restrictive than those in Sec.  229.32 (b) through (d). 
Requirements for anchored gillnet gear in Other Northeast Gillnet 
Waters are as specified in paragraphs (g)(4)(i)(B)(1) of this section, 
except that a second buoy line and a section of floating line in the 
bottom portion of each line not to exceed one-third the overall length 
of the buoy line are allowed within a DAM zone. Requirements for 
lobster trap gear in Offshore Lobster Waters, Northern Nearshore 
Lobster Waters and Northern Inshore State Lobster Waters are as 
specified in paragraph (g)(4)(i)(B)(2) of this section, except that a 
second buoy line and a section of floating line in the bottom portion 
of each line not to exceed one-third the overall length of the buoy 
line are allowed within a DAM zone. Requirements for anchored gillnet 
gear in Cape Cod Bay Restricted Area (May 16 through December 31), 
Stellwagen Bank/Jeffreys Ledge Restricted Area, Great South Channel 
Restricted Gillnet Area (July 1 through March 31), Great South Channel 
Sliver Restricted Area (July 1 through March 31), and Mid-Atlantic 
Coastal Waters are the same as requirements for Other Northeast Gillnet 
Waters. Requirements for lobster trap gear in Southern Nearshore 
Lobster Waters, Cape Cod Bay Restricted Area (May 16 through December 
31) and Stellwagen Bank/Jeffreys Ledge Restricted Area are the same as 
requirements for Northern Nearshore Lobster Waters and Northern Inshore 
State Lobster Waters. Requirements for lobster trap gear in the Great 
South Channel Restricted Lobster Area (July 1 through March 31) are the 
same as requirements for Offshore Lobster Waters.
* * * * *
    (4) * * *
    (i) * * *
    (B) * * *
    (2) * * *
    (ii) Northern Inshore State Lobster Waters and Northern Nearshore 
Lobster Waters Areas buoy weak links--All buoy lines must be attached 
to the buoy with a weak link having a maximum breaking strength of up 
to 600-lb (272.4-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 for Fisheries.
* * * * *
[FR Doc. 03-21606 Filed 8-25-03; 8:45 am]
BILLING CODE 3510-22-S