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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 9, 2002 (Volume 67, Number 6)]
[Rules and Regulations]
[Page 1142-1160]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja02-16]

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 011120279-1311-02; 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: Interim final rule.

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SUMMARY: NMFS is issuing an interim final rule 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 Seasonal Area Management (SAM)
program. The SAM program defines two areas based on the annual
predictable presence of North Atlantic right whales in which gear
restrictions for lobster trap and anchored gillnet gear will be
required. 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: Effective March 1, 2002. Comments on this interim final rule
must be postmarked or transmitted via facsimile by 5 p.m. Eastern
Standard Time, on February 8, 2002. Comments transmitted via e-mail
will not be accepted.

ADDRESSES: Send comments on this interim final 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

This interim final rule implements modifications to the ALWTRP as
deemed necessary by NMFS to satisfy requirements of the Endangered
Species Act (ESA) and the Marine Mammal Protection Act (MMPA). On June
14, 2001, NMFS issued four Biological Opinions (BOs) as the result of
ESA section 7 consultations on the three Fishery Management Plans (FMP)
for the monkfish, spiny dogfish, and Northeast multispecies fisheries,
and the Federal regulations for the American lobster fishery. The BOs
concluded that the fisheries conducted pursuant to the three FMPs and
the lobster regulations are likely to jeopardize the continued
existence of right whales. In response to the section 7 consultation's
jeopardizing finding, NMFS developed a Reasonable and Prudent
Alternative (RPA) with multiple management components. As part of its
RPA, NMFS developed gear restrictions for the anchored gillnet and
lobster trap fisheries based on predictable annual concentrations of
right whales. Details concerning the justification for and development
of the SAM program and the implementing regulations were also provided
in the preamble to the proposed rule (66 FR 59394, November 28, 2001)
and are not repeated here.

Approved Measures

SAM Areas

The SAM program is established 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) as observed
in aerial surveys from 1999-2001 (Merrick, et al. 2001). NMFS has
defined two areas, called SAM West and SAM East, in which gear
restrictions for lobster trap and anchored gillnet gear are required.
These requirements are 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).
SAM West and SAM East will occur on an annual basis for the period
March 1 through April 30 and May 1 through July 31, respectively. The
dividing line between SAM West and SAM East is at the 69 deg. 24' W.
longitude line. See table 1 for the spatial and temporal definitions of
the areas.

[[Page 1143]]

Table 1.--Seasonal Area Management Areas
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Point Latitude (north) Longitude (west) Comment
----------------------------------------------------------------------------------------------------------------
SAM West Polygon--In effect from March 1-April 30
----------------------------------------------------------------------------------------------------------------
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 GSC 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-July 31
----------------------------------------------------------------------------------------------------------------
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 GSC.
6............... 42 deg. 10' 68 deg. 31' Runs along NE side GSC CH
return along NW side of GSC
CH to point #1.
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Lobster Trap Gear

Fishermen utilizing lobster trap gear within the portions of the
Northern Nearshore and Northern Inshore State Lobster Waters that
overlap with a SAM area must utilize all the following gear
modifications when a SAM area is in effect:
1. Groundlines and buoy lines must be made entirely of either
sinking or neutally buoyant line. Floating groundlines and buoy lines
are prohibited;
2. A weak link must be placed at all buoys with a maximum breaking
strength of 600 lb (272.2 kg) at each buoy. Each weak link must be
installed as close to each individual buoy as operationally feasible
(See figure 1); and
3. Fishermen utilizing lobster trap gear 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 trawl string depending on the
direction of the set.
Fishermen utilizing lobster trap gear within the portion of the
Offshore Lobster Waters Area that overlaps with a SAM area must utilize
all the following gear modifications when a SAM area is in effect:
1. Groundlines and buoy lines must be made of either sinking or
neutrally buoyant line. Floating groundlines and buoy lines are
prohibited;
2. A weak link must be placed at all buoys with a maximum breaking
strength of 1,500 lbs (680.4 kg). Each weak link must be installed as
close to each individual buoy as operationally feasible (See figure 2);
3. Fishermen utilizing lobster trap gear 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 trawl string depending on the
direction of the set.

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Anchored Gillnet Gear

Fishermen utilizing anchored gillnet gear within the portion of the
Other Northeast Waters Area that overlaps with a SAM area must utilize
all the following gear modifications when a SAM area is in effect:
1. Groundlines (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. 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 three floatline
weak links. The placement of the weak links on the floatline must be,
one at the center of the net panel and one each as close as possible to
each of the bridle ends of the net panel. The remaining two weak links
must be placed in the center of each of the up and down lines at the
panel ends (See figure 4);
3. 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
All anchored gillnets, regardless of the number of net panels, must
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.

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Interaction With Other Restrictions

The gear restrictions required for the SAM areas do not preempt
existing restrictions within Cape Cod Bay and the Great South Channel
critical habitat for North Atlantic right whales. As described in the
proposed rule to implement the Dynamic Area Management (DAM) program
(66 FR 50160, October 2, 2001), NMFS maintains its authority to
implement the DAM program, if conditions warrant such action. 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. NMFS anticipates that the DAM program will be
implemented as a final rule no later than December 31, 2001. 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 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 this interim final rule on SAM to further refine the
relationship between DAM and SAM.

Comments and Responses

On October 3, 2001, NMFS published an Advanced Notice of Proposed
Rulemaking (ANPR) and a Notice of Intent (NOI) to prepare an
Environmental Impact Statement (EIS) for SAM (66 FR 50390). As
discussed in the preamble to the proposed rule for this action (66 FR
59394, November 28, 2001), the Federal District Court for the District
of Massachusetts ordered NMFS to have a signed proposed SAM rule by
November 23, 2001. Consequently, NMFS published a proposed rule and
requested public comments regarding the proposed action. Approximately
168 letters of comment were received during the public comment periods
for the ANPR and proposed rule. NMFS considered the comments received
on both the ANPR and proposed rule as part of its decision making
process. A complete summary of the comments and NMFS' responses is
provided here.

ANPR Comments

NMFS received 14 sets of comments on the SAM ANPR. The comment
period for the ANPR ended November 2, 2001.

General Comments

Comment 1: Seven commenters generally supported additional
regulations or management measures, including Seasonal Area Management
(SAM), to protect North Atlantic right whales (right whales). Four of
these commenters further stated that fixed gear fisheries should be
allowed to continue operating in SAM areas with modified fixed gear and
practical regulations.
Response: NMFS believes SAM is necessary as an element of the
Reasonable and Prudent Alternative (RPA) required under the Endangered
Species Act (ESA) to protect the right whales. NMFS acknowledges the
preference for a management plan that facilitates continued fishing
with gear modifications that address both the goal of reducing the
total number of entanglements and the goal of avoiding serious injury
or mortality to North Atlantic right whales.
Comment 2: One commenter was opposed to any regulatory changes.
Response: Due to the endangered status of the North Atlantic right
whale population, there is a need to further reduce serious injury and
mortality caused by the multispecies, spiny dogfish, monkfish, and
lobster fisheries as currently prosecuted. NMFS believes SAM is
necessary as an element of the RPA required to protect the right
whales. NMFS has determined that the additional regulatory measures
included in SAM, DAM and the additional gear modifications are
necessary to meet the objectives of the ESA and the MMPA. The ESA
requires that the NMFS ensure that activities it authorizes, including
commercial fishing, do not jeopardize the continued existence of right
whales. The MMPA provides that the immediate goal of a take reduction
plan is to reduce incidental mortality or serious injury of marine
mammals taken in the course of commercial fishing to levels less than
the potential biological removal level and the long-term goal is to
reduce such incidental mortality or serious injury to insignificant
levels approaching a zero rate. Because the potential biological
removal level for right whales is zero, these goals are essentially the
same for right whales. These regulatory changes are necesssary to
attain these goals.
Comment 3: One commenter stated strong opposition to removal of
lobster gear from a SAM zone as a management measure.
Response: NMFS did consider closure to lobster and gillnet gear in
the proposed rule and selected gear modification as the management
measure of choice. In selecting the approach of gear modifications, we
determined that it was consistent with the reasonable and prudent
alternative (RPA) in the biological opinions for the gillnet, Northeast
multispecies, and monkfish fishery management plans and the Federal
regulations for the lobster fishery. The Management Action identified
in the RPA is to utilize data to ``effect annual restrictions to
minimize interactions between fishing gear and 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 right whales. It is important to
note that the language in the RPA did not direct NMFS to eliminate
interactions between fishing gear and right whales but to minimize the
interaction. Another factor in NMFS' identification of gear
modifications rather than closures as the preferred option was the
concern that closures would result in concentration of gear at the
edges of the SAM management area. Since that gear would not include the
additional gear modifications that NMFS is requiring within the SAM
zone, it would pose a greater risk to right whales. Additional
conservation benefit gained through the adoption of a gear modification
approach is obtained due to the fact that once fishermen re-rig their
gear to comply with the SAM gear modifications, it is likely that they
will maintain these gear modifications even while fishing outside of
the SAM restricted zone.
Comment 4: One commenter expressed a preference for measures such
as SAM versus management measures contained in the Dynamic Area
Management (DAM) proposed rule. The commenter's interpretation is that
SAM would include the widespread use of practical whale safe gear.
Response: NMFS acknowledges the preference for SAM over DAM given
that SAM is predictable and allows for fishing activity to continue
with the use of modified gear. DAM and SAM are both elements of the
RPA's management plan and as such both must be utilized to provide
protection to right whales. NMFS anticipates that the need to utilize
DAM will be significantly decreased through the implementation of SAM
since the vast majority of sightings of right whale concentrations
occur during the time and area identified in the SAM.
Comment 5: One Commenter stated that the input and support of the
fishing industry is critical to the success of these regulations in
meeting the

[[Page 1151]]

objectives. There was further concern expressed that the comment and
response process NMFS utilized did not allow adequate time for
response.
Response: NMFS values the input and support of the fishing industry
in developing measures to protect right whales. NMFS is engaged in the
Atlantic Large Whale Take Reduction Team (ALWTRT) process as a means to
incorporate the knowledge and experience of the constituents early in
the regulatory process. Some of the recommendations contained in this
interim final rule are a product of the ALWTRT. Though NMFS may not
always implement ALWTRT recommendations exactly as stated, NMFS does
consider this information when developing regulations. The comments and
response process was expedited in this interim final rule due to a
court order to finalize rulemaking by December 31, 2001 associated with
the critical status of the North Atlantic right whale population.
Comment 6: One commenter indicated that NMFS should immediately
identify at-sea enforcement as a high priority and develop protected
resource penalty schedules for the ALWTRP.
Response: NMFS agrees that at-sea enforcement is important to the
success of the ALWTRP and will conduct enforcement activities as the
budget allows. NMFS also relies on its partnership with the U.S. Coast
Guard and state agencies to monitor compliance with the ALWTRP. NMFS
has existing penalty schedules for violations of the MMPA and the ESA,
and regulations pursuant to those statutes. In addition, NMFS
enforcement has entered into agreements with many states to encourage
and facilitate joint enforcement of regulations.

Gear Modification Comments

Comment 7: Three commenters stated that lobster gear modifications
for use in the SAM area should correspond to what is currently used and
proposed for use in Cape Cod Bay Critical Habitat (CCBCH). These gear
modifications would include neutrally buoyant and/or sinking line for
groundlines and weak links for buoy lines. Two commenters also endorsed
neutrally buoyant line as a gear modification to be employed in SAM
areas. One of these commenters is already using neutrally buoyant line
and weak links and believes this gear is ``whale safe''.
Response: NMFS does endorse the measures currently employed in
CCBCH and acknowledges that some fishermen are already using gear
similar to what is proposed for use in SAM areas. NMFS has included
neutrally buoyant line and/or sinking line as well as weak links as
gear modifications for lobster trap gear to be used in SAM areas.
Comment 8: Two commenters endorsed the use of neutrally buoyant
line for gillnet bridles in SAM areas. One of these commenters endorsed
the expanded use of weak links in the net panels of gillnets.
Response: NMFS has prohibited the use of floating line for gillnet
bridles in SAM areas and increased the number of weak links in the
gillnet panels as a part of this rule. Neutrally buoyant or sinking
line are methods of complying with this prohibition.
Comment 9: One commenter indicated that NMFS should prohibit
fishing in SAM areas until such time as whale safe or low risk gear, as
defined at the June 27-28, 2001, ALWTRT meeting, is developed. This
commenter further indicated that the ANPR did not specify gillnet gear
modifications and as such gillnets should be prohibited from any SAM.
Response: NMFS has included a description of gillnet and lobster
trap gear which NMFS believes does meet the low risk definition.
Lobster trap and gillnet gear that meets the definition is described in
this rule. Gear research and testing will continue to identify ways to
further reduce risk and to make progress toward the goal of identifying
``whale safe gear.''

Rulemaking Process Comments

Comment 10: Two commenters indicated that the full administrative
process, including an Environmental Impact Statement (EIS) as required
under the National Environmental Policy Act, should be carried out
prior to the final determinations of SAM area boundaries. These
commenters also wanted the conservation equivalencies of closures
required under the Harbor Porpoise Take Reduction Plan and existing
groundfish closures to be considered in determining management actions
and the SAM boundaries.
Response: NMFS has completed an Environmental Assessment (EA) for
the SAM interim final rule which is available to the public (see
Addresses section). NMFS did consider other management actions in the
Gulf of Maine when drafting these regulations. The closures/
restrictions referenced by the commenter will impact gillnet activities
but not lobster trap activities in the SAM areas and as such other
management measures may or may not contribute to the protection of
right whales.

SAM Implementation Comments

Comment 11: One commenter indicated that the SAM area should
encompass the Jeffreys Ledge area which is reported to be a seasonal
high use area in a recent paper titled: Right Whales (Eubalaena
glacialis) on Jeffreys Ledge: A Habitat of Unrecognized Importance.
This commenter supports designating areas that encompass approximately
90 percent of seasonal sightings as SAM areas.
Response: NMFS utilized the Dynamic Area Management (DAM) trigger
and associated protective zones to define the SAM zones in terms of
time and space (Clapham and Pace, 2001). The full details of the
analysis to determine the SAM areas are provided in the document
titled: Identification of Seasonal Area Management Zones for North
Atlantic right whale conservation (Merrick, et al. 2001). NMFS utilized
the criteria that the animals were sighted in sufficient density, as
described in the DAM trigger document, in at least 2 survey seasons.
This approach was utilized to impose predictable restrictions in areas
and times where animals were sighted while also accounting for inter-
annual variation. NMFS will continue aerial survey efforts in 2002 and
should animals appear in sufficient density in the Jeffreys Ledge area,
NMFS could implement a DAM closure to provide further protection for
North Atlantic right whales. Additional survey data could also support
expansion of the SAM area or delineation of additional separate SAM
areas.
Comment 12: One commenter favored the implementation of the entire
area for the entire time period rather than dividing the area.
Response: NMFS did not believe that data supported a SAM area for
the entire area over a 5-month period. NMFS did employ a divided
polygon to define the SAM areas. The SAM West and East designation was
determined based on the distribution (spatially and temporally) of
North Atlantic right whales.
Comment 13: Three commenters preferred ``rolling restrictions''
running from west to east as the animals moved east and the season
progressed. This concept would result in no initial restrictions until
right whales were sighted, followed by the lifting of restrictions as
the animals depart the area. One commenter indicated that an initial
restriction date with sequential openings to follow as the animals
departed an area would be preferred.
Response: NMFS did consider this approach in developing this rule.
The

[[Page 1152]]

approach was not employed due to the logistical difficulties inherent
in the regular monitoring and surveillance of right whales over such a
large area. The areas defined in this interim final rule support
sufficient right whale density to trigger a management action, as
demonstrated by data for the last three consecutive years. NMFS will
continue survey efforts to refine the boundaries of SAM as required. In
addition, a programmed restriction, at a predetermined time and
location, which the industry is aware of in advance, is reported to be
preferred by the fishing industry thereby increasing the likelihood of
compliance. The gear modifications required to fish in a SAM area are
extensive and NMFS believes fishermen will not be able to change gear
quickly to comply with SAM. NMFS believes that fishermen who want to
fish in a SAM area will need to plan months in advance to have their
gear in compliance. These factors were considered in using programmed
restrictions. An additional logistical difficulty in using sightings to
impose or lift SAM regulations is that it requires regular monitoring
and surveillance of right whales over such a large area. NMFS has
determined that there is sufficient survey data to support the SAM area
in this rule; additional survey data may provide insights into other
candidate SAM areas.
Comment 14: One commenter indicated that additional survey effort
is urgently needed to assure that seasonal management zones are
adequate in time and area.
Response: NMFS agrees that additional survey data is necessary to
refine management initiatives for right whales. NMFS will continue
aerial survey efforts in the Gulf of Maine/New England area in 2002 in
pursuit of this goal.

SAM Timing Comments

Comment 15: One commenter indicated that a SAM zone east of Cape
Cod for the period April-June 30 might be a reasonable measure.
Response: NMFS utilized aerial survey data from the last 3 field
seasons (1999-2001) to determine the time and areal extent of the SAM
areas. The SAM West and SAM East areas represent times and areas where
right whales were sighted in all 3 survey seasons. This area is east of
Cape Cod and covers the time period from March 1-July 31.
Comment 16: One commenter indicated that the SAM area should be in
effect beginning in January of every year to protect right whales as
they arrive from the southern wintering areas and any animals that
wander out of the Cape Cod Bay Critical Habitat Area.
Response: NMFS utilized the DAM trigger and associated protective
zones to define the SAM zones in terms of time and space (Clapham and
Pace, 2001). The full details of the analysis to determine the SAM
areas are provided in the document titled: Identification of Seasonal
Area Management Zones for North Atlantic right whale conservation
(Merrick, et al. 2001). Should animals appear in sufficient density in
the geographic area defined as SAM prior to the effective dates of the
restriction, DAM would be implemented thus providing protection for the
animals. NMFS will continue to conduct surveys to refine management
measures such as SAM for the protection of right whales. SAM was not
intended to encompass every right whale sighting, but to provide
additional protection to feeding aggregations of right whales due to
their increased vulnerability.
Comment 17: Two commenters suggested a specific area be defined as
an Offshore Lobster SAM area. The suggestion was an area east of a
point defined by the easternmost location of a whale aggregation that
met the DAM trigger as shown during the June 27-28 ALWTRT and reflected
on page 4 of the meeting summary prepared by Resolve, Inc. This
commenter indicated that fishermen in this area would fish with
neutrality buoyant or sinking line and weak links at the buoy of not
more than 1500 lbs (680.4 kg) breaking strength.
Response: NMFS believes this area corresponds to an area east of
68 deg.15' W. long. out to the Hague Line. NMFS did include these gear
modifications for the area specified as well as all Offshore Lobster
Waters (as defined by the ALWTRP, 50 CFR 229.32(c)(5)(i)) within a SAM
area. It is important to note that at the time of the ALWTRT meeting,
NMFS presented only preliminary data that included only 2001 sightings.
Many commenters discuss the SAM area and refer only to the preliminary
data that was presented at the ALWTRT meeting. The analysis that was
conducted following the ALWTRT meeting included sightings data from
1999, 2000 and 2001. The full details of the analysis to determine the
SAM areas are provided in the document titled: Identification of
Seasonal Area Management Zones for North Atlantic right whale
conservation (Merrick, et al. 2001).
Comment 18: One commenter stated that the ANPR/NOI was inadequate
to meet the RPA and that all three actions (DAM, SAM and gear
modifications) must be in place simultaneously.
Response: NMFS recognizes the concern expressed by the commenter.
NMFS followed the ANPR with a proposed rule which provided additional
information. This interim final SAM rule addresses the concern that a
rule implementing SAM be in place with the DAM and gear modification
rules, which are also being published in final form.
Comment 19: One commenter indicated that SAM is a poor substitute
for stronger regulations in critical habitat and that critical habitat
should be extended to the areas determined to be appropriate for SAM.
Response: NMFS recognizes the concern expressed by the commenter.
The designation of an area as critical habitat does not automatically
add regulations stronger than those in place for SAM areas. NMFS will
consider designating SAM areas as critical habitat as part of the
comprehensive EIS planned for 2002.

Proposed Rule Comments

NMFS received a total of 168 sets of comments on the proposed rule
for SAM. Approximately 150 of these were of a standard format. The
comment period ended December 13, 2001.

General Comments

Comment 1: Four commenters stated that the SAM regulations as
proposed do not provide the protection necessary to achieve the
reasonable and prudent alternative under the ESA or constitute an
effective take reduction plan under the MMPA.
Response: NMFS believes that the SAM program in combination with
other measures in the RPA constitute the level of protection necessary
to meet the requirements under the ESA and coupled with the other
elements of the ALWTRP does constitute an effective take reduction plan
under the MMPA. NMFS is implementing a strategy for addressing the
threat posed by commercial fishing practices to right whales which
includes the following components: Adoption of broad based gear
modifications to reduce the risk of serious injury or mortality of
right whales; specific, more restrictive, gear modifications in areas
and at times of greater concentration of right whales (SAM); specific,
more restrictive, restrictions in areas which contain physical or
biological features essential to the conservation of North Atlantic
right whales (and, therefore, designated as critical habitat under the
ESA); an ability to impose restricts in areas and at times when
concentrations of right whales are observed (DAM); support for
implementation of a disentanglement

[[Page 1153]]

program to respond to observed entangled marine mammals; and
investigation and testing of additional gear modifications to further
reduce the risk of entanglement and serious injury or mortality of
rights whales. Collectively, this approach is designed to avoid
jeopardy to right whales from commercial fishing practices and supports
the achievement of a zero mortality rate goal.
Comment 2: One commenter stated that management initiatives based
on the distribution and occurrence of right whales may have little or
no impact on the entanglement rate of other large whales species the
ALWTRP is charged with protecting.
Response: NMFS disagrees with the commenter and does believe that
the management initiatives implemented by this interim final rule will
benefit other species of large whales that NMFS is charged with
protecting. Obviously right whale distribution was the principal
driving force in the delineation of the SAM area. However, the
additional gear modifications reduce the risk posed by this gear to
large whales, including but not limited to right whales. Since we
expect that fishermen who modify their gear to be able to fish within
the SAM zone will likely fish that same modified gear outside the time
and area of the SAM restriction, additional benefits to right whales
and to other large whales outside of SAM will be realized.
Comment 3: All commenters supported the concept of SAM which
facilitates continued fishing coupled with gear modifications which
reduce entanglements and hence serious injury or mortality. Several
commenters wanted to see specific changes to the implementation of the
measure or questioned the overall conservation benefits of the SAM
program as described in the proposed rule.
Response: NMFS has responded to the comments received and adopted
some specific recommendations shown in this interim final rule. The
conservation benefit of the SAM program is that it offers increased
protection to anticipated concentrations of right whales at a time when
they may be more vulnerable to entanglement, i.e. when they are
feeding. NMFS has used past sightings data to predict right whale
concentrations in time and in space and has identified and required
modified fishing gear that poses a low risk to right whales of serious
injury or mortality. This SAM program is a very important component in
the overall NMFS strategy for the protection and recovery of right
whales.
Comment 4: One commenter supported SAM in concept but indicated
that all gillnet and lobster fishing should be prohibited in the SAM
area until such time as fishing gear proven to be unlikely to seriously
injure or kill right whales has been developed. Three commenters
supported gear modifications as opposed to total closures.
Response: NMFS considered the concept of a total closure to lobster
trap and gillnet gear in the SAM areas and determined that gear
modifications developed through the TRT process would result in more
conservation benefits to the animals. The basis for this determination
is that total closures refocus fishing efforts to other areas and may
result in an edge effect where gear is concentrated around the
periphery of a closure posing a greater risk of entanglement. NMFS
believes that the gear modifications required in this interim final
rule prevent entanglements where possible and reduce the severity of
entanglements when they do occur and will alleviate the threat of
serious injury or mortality. NMFS maintains that the data available and
presented in the proposed rule provides sufficient evidence that
fishing within the SAM area with the gear modifications required is
unlikely to result in serious injury or mortality of a right whale.
Comment 5: Two commenters identified at-sea enforcement as a
priority and requested a schedule of protected resources penalties be
developed for the ALWTRP regulations.
Response: See comment and response 6 in the ANPR Comments and
Responses.
Comment 6: Two commenters stated that ship strikes remain a major
problem for right whales. One of the two wanted to know how DAM and SAM
would impact vessel traffic.
Response: NMFS agrees that ship strikes remain an issue and is
addressing the issue under the Northeast Implementation Team for the
Recovery of the Northern Right Whale and the Humpback Whale and the
Southeast U.S. Right Whale Recovery Plan Implementation Team, including
their Ship Strike Committees. The shipping industry has been responsive
in this forum and the agency is actively seeking solutions to the
problem. DAM and SAM are management actions directed at the commercial
lobster and gillnet fisheries in the SAM area and will not impact
vessel traffic.
Comment 7: One commenter indicated that NMFS should seek out
additional historical data other than the 1999-2001 aerial survey data
in developing the SAM boundaries as the SAM area may be overstated.
Response: The aerial survey efforts of 1999-2001 were partially
based on the historical presence of right whales such as the data used
to support the critical habitat designation in Great South Channel.
Historical data is not available in suitable quantity for the areas in
question and as such could not be utilized in this analysis. There is
no reason to expect that the observations of right whales in 1999, 2000
and 2001 are not representative of the future presence of right whales.
Comment 8: Four commenters stated that NMFS should develop broad
based gear modifications for regional use based on the tracking data
from several right whales observed during the 2001 field season which
demonstrated these animals can range far and wide and may not remain in
the areas defined as critical habitat. A broad based gear requirement
would also be less complex to implement and more readily enforced.
Response: NMFS agrees with the concept of broad based gear
modifications but the experience to date is that unique physical
environments require unique gear modifications. Different breaking
strength weak links for the Offshore Lobster Waters versus Nearshore
Lobster Waters is an example of such unique environmental requirements.
The fishing industry has objected to gear modifications in areas that
are not documented to support whales as an unnecessary economic burden
with no perceived benefit to the animal. NMFS recognizes the economic
impact on industry and has strived, through the ALWTRT process and
outreach, to minimize economic impact while maximizing conservation
benefit from the management measures implemented. The gear
modifications required in the SAM areas are over and above broad based
gear modifications; however, NMFS believes that the additional burden
to comply with these more restrictive gear modifications is justified
based on the increased potential for interactions between right whales
and fishing gear in the SAM area (due to the observed concentrations of
right whales).
Comment 9: One commenter indicated that the rulemaking process did
not facilitate a full and open process to include public hearings and
industry feedback on the management plan.
Response: See comment and response 5 and in the ANPR Comments and
Responses.
Comment 10: Two commenters indicated that a regulation with gear
modifications of this magnitude will require time. One of the
commenters indicated that NMFS should develop a

[[Page 1154]]

phase-in schedule to change over all lobster and gillnet gear that is
fished in waters where right whales occur routinely.
Response: NMFS appreciates the comments which address the need for
manufacturers and suppliers to manufacture the neutrally buoyant and/or
sinking line in sufficient quantity and time for the fishermen to
replace the existing gear. In fact, the limitation on supply, as well
as the increased economic cost, is one of the reasons why it is not
reasonable at this time to impose these gear modifications more
broadly. Due to the critically endangered status of right whales, and
agency mandates under the ESA and MMPA, however, we must take immediate
action within SAM areas to decrease the risk to right whales. Fishermen
who cannot comply with the gear requirements in the allotted timeframe
still have the option of fishing outside of the SAM areas.
Comment 11: One commenter encourages NMFS to utilize passive
acoustics and aerial surveys to detect right whales for DAM actions.
Response: NMFS will continue to conduct aerial and shipboard
surveys to detect right whales for research and monitoring purposes.
The use of passive acoustics appears promising based on a presentation
at the 2001 Right Whale Consortium held in October and its use may be
more prevalent in the future.
Comment 12: Three commenters indicated that NMFS should continue
survey efforts to modify SAM boundaries and effective dates. One
commenter indicated that survey efforts may have been inadequate to
detect aggregations in areas such as Jeffreys Ledge.
Response: See response to comment 15 in the ANPR Comments and
Responses.

SAM Timing Comments

Comment 13: One hundred and fifty commenters indicated that the
proposed rule for SAM should be strengthened to protect right whales.
The commenters recommended that restrictions in the entire SAM area
should be in effect from January 1 through July 31st with areas only
open to unrestricted fishing after the whales have left the area. Sixty
of these commenters also stated that they are willing to pay more for
products if it will ensure the protection and survival of whales.
Response: NMFS appreciates the large response to this important
rulemaking process. The level of support from the general public for
additional measures to protect right whales is encouraging. The
rationale provided for having the SAM areas in effect beginning March
1st as opposed to January 1st, are stated in the proposed rule. NMFS is
aware of the migration of right whales into the CCBCH, but believes
these animals are transiting the area and not aggregating to feed as
described in the DAM trigger document (Clapham and Pace 2001). As
stated previously in this document, the SAM area is not intended to
encompass every right whale, but rather to offer increased protection
to concentrations of feeding right whales, which we believe may be at
higher risk of entanglement. Should animals appear in sufficient
density in the geographic area defined as SAM prior to the effective
dates of the restriction, DAM could be implemented thus providing
protection for the animals. NMFS will continue to conduct surveys to
refine management measures such as SAM for the protection of right
whales. NMFS appreciates the fact that these commenters recognize that
conservation comes at some economic cost to fishermen, which may be
passed on to the consumer in the form of higher prices for seafood
products.
Comment 14: Four commenters indicated that the timing for the SAM
West and SAM East was incorrect and should be expanded. The comments
generally supported SAM West from January-May 31 and SAM East from
March 1-July 31. This expansion of time was considered necessary to
protect animals arriving into the Cape Code Bay Critical Habitat and
animals that may wander out of the critical habitat as evidenced by two
specific animals during the 2001 season.
Response: See response to comment 16 under ANPR section above.

SAM Area Division/Extent Comments

Comment 15: Two commenters stated that the division between SAM
West and SAM East was incorrect based on discussions at the ALWTRT
meeting on June 27-28, 2001. These commenters indicated the dividing
line between these two areas should be in the vicinity of the western
most side of the eastern most DAM circle shown on the figure on page 4
of the meeting summary (Resolve 2001). This division would be at
approximately the 68 deg. 15' W. long. line.
Response: NMFS agrees that the dividing line between SAM West and
SAM East is not as recommended in the ALWTRT meeting summary. NMFS
welcomes such recommendations from the TRT process through the
recommendations are not always implemented for a variety of reasons. At
the time of the ALWTRT meeting, NMFS presented only preliminary data
from 2001 sightings. The discussion at the ALWTRT meeting and any
recommendations made at that time were based only on the limited
preliminary data presented for general discussion purposes. Following
the ALWTRT meeting, NMFS conducted an analysis of the distribution of
animals from the aerial surveys conducted from 1999-2001 to determine
the appropriate division in time and space of the SAM area. NMFS uses
the best available scientific data in developing its regulations which
would include all three years of survey data. The full details of the
analysis to determine the SAM areas are provided in the document
titled: Identification of Seasonal Area Management Zones for North
Atlantic right whale conservation (Merrick, et al. 2001). NMFS based
the areas on this analysis and overlaid it on the existing ALWTRP
areas.
Comment 16: Three commenters stated that the SAM area is too large
and the eastern end of the SAM East area should be at 67 deg. 45' W.
long. as there are infrequent sightings of animals east of this
longitude line. Two of these commenters indicated that right whales do
not appear south of the 50-fathom line on the Georges Bank Northern
Edge and, therefore, the polygon should be adjusted to exclude waters
south of the 50-fathom line that occur east of the Great South Channel
Critical Habitat.
Response: NMFS extended the SAM area out to the Hague Line based on
the sightings of right whales as reported in the document titled:
Identification of SAM Zones for North Atlantic right whale conservation
(Merrick, et al. 2001). Figure 9 of that document shows whale
aggregations clustered around the Hague Line in all three survey years,
1999-2001. The portion of the SAM East area south of the 50 fathom line
is necessary to encompass the 15 nautical mile buffer, as described in
Clapham and Pace 2001, which provides a margin of protection to
encompass the movement of the animals during an aggregation.
Comment 17: Two commenters opposed the boundaries as presented in
the proposed rule and indicated that states should be able to manage
whale issues in their waters. One of the commenters indicated that the
SAM area should not extend into state waters located east of Cape Cod,
MA due to the fact that right whales are only seen on occasion in that
area during March and April and furthermore that fishing gear is rarely
seen close to shore in that area. The commenter indicated that there
was not sufficient risk to the animals to justify federal regulations
that would preempt state regulations.

[[Page 1155]]

Response: The data presented in Merrick, et al., 2001 demonstrates
that aggregations of right whales do occur east of Cape Cod in March
and April. While these aggregations have not been observed in state
waters, within 3 nautical miles of the shore, the 15-nautical mile
protective buffers from the sightings do encompass state waters. NMFS
has determined that Federal regulations are required in order to
achieve the mandates and goals of the ESA and MMPA.
Comment 18: Two commenters indicated that the Jeffreys Ledge area
should be included as part of the SAM program. One of the commenters
acknowledged that NMFS has proposed DAM in order to address such
aggregations, but they lack confidence in DAM and therefore stated that
the agency should not rely on that measure.
Response: See comment and response 11 above in the ANPR Comments
and Responses. NMFS does believe that DAM is a meaningful management
measure which will result in real protection for right whales.
Furthermore, NMFS maintains that sufficient data is needed to
confidently identify an area of predictable right whale concentration
prior to designating it as a SAM area. Sufficient data is not currently
available for Jeffreys Ledge.

SAM Gear Modifications Comments

Comment 19: One hundred and fifty commenters stated that, within a
SAM area buoy lines extending from the fishing gear to the surface
should break at no more than 1,100 lbs (498.8 kg.) to allow right
whales to break free in the event of an entanglement. Other commenters
questioned the value of this additional weak link at all.
Response: NMFS appreciates the large response to this important
rulemaking process. The level of support from the general public for
additional measures to protect right whales is encouraging. NMFS
interprets these comments to mean that all lobster and gillnet gear
allowed to fish in the SAM areas should utilize a weak link with a
maximum breaking strength of 1100 lbs (498.8 kg). This comment appears
to be in response to the 3780-lbs (1714.3-kg) weak link proposed for
the Offshore Lobster Waters and Other Northeast Waters, as defined by
the ALWTRP (50 CFR 229.32 (c)(5)(1)), for lobster and gillnet fishermen
operating within a SAM area. NMFS proposed this 3780-lbs (1714.3-kg)
maximum breaking strength ``system'' weak link based on the analysis of
an entanglement, and subsequent successful disentanglement, which
occurred on July 20, 2001, in the area of Jeffreys Ledge. This proposal
was to introduce an additional weak link at a new location (between the
surface and subsurface gear), not to increase the breaking strength of
any of the existing required weak links. NMFS did consider setting the
breaking strength of the system weak link at the same level as the buoy
link (which is required at the buoy itself). The buoy weak links for
gillnet buoys are 1100 lbs (498.8 kg), and for lobster trap buoys are
1500 lbs (680.4 kg) for SAM in Offshore Lobster Waters and 2000 lbs
(906.9 kg.) for Offshore Lobster Waters outside of SAM. The values of
1100, 1500 and 2000 lbs (498.8, 680.4, 906.9 kg) have all been exceeded
in load cell testing measurements. If a weak link of any of these
breaking strengths was introduced between the surface and subsurface
system, it would likely break when gear was being hauled, potentially
leading to a dangerous situation and also contributing to ghost gear.
These load cell measurements exceeded the 2800 lbs (363.2 kg) limit of
the load cell and clearly demonstrate that loads in excess of 1100,
1500 and 2000 lbs (498.8, 680.4, 906.9 kg) have occurred in these gear
types. Based on this load cell data, NMFS cannot require a weak link
with a breaking strength below values we have measured in the buoy line
section of the gear. Based on the comments received regarding this
analysis NMFS believes that this system weak link proposal requires
further discussion and development in the take reduction team arena.
The proposal for a system weak link was completely removed from the
interim final rule and will be discussed further with the ALWTRT.
NMFS proposed the weak link between the surface and subsurface
system with the intention of introducing another point where the gear
could break away from a right whale. Many of the comments questioned
the value of the proposed weak link. The theory behind this proposal
was that if a right whale encountered the vertical line in the buoy/end
line reaching to the surface it could exert sufficient drag on the line
to part it. The right whale would then be able to swim freely with
little or no gear attached. Several commenters stated that the
effectiveness of a weak link at this location is severely compromised
by the fact that there would not be resistance on either side of the
weak link to exert the pressure needed to break this weak link. Given
these concerns, we will table this requirement for now and discuss it
further with the ALWTRT and also at the upcoming gear workshop.
Comment 20: Nine commenters indicated that dropping an endline or
the use of only a single buoy line is operationally problematic
throughout the SAM areas. Four of these nine commenters stated that
this measure raised safety issues as well. The basis of the safety
contention is that extreme tides and weather from Cape Cod to the Hague
Line are a major factor in determining which end of a trawl line to
haul from in order to minimize strain on the lines, assuming there are
two buoys/high flyers per lobster trap trawl/gillnet string. These
commenters further indicated that a single mark, buoy/highflyer, will
lead to gear conflicts and an increase in lost gear resulting in
increased ghost gear and a resulting potential increase in entanglement
risk. Three commenters offered strong support for the reduction in
endlines as a step resulting in a tangible decrease in vertical line in
the water column.
Response: NMFS acknowledges the comments concerning potential
safety issues. NMFS also acknowledges that a 50 percent reduction in
endlines/buoy lines furthers the goal of eliminating entanglements as
indicated in the comments. NMFS further recognizes the potential for
gear conflicts and other fishery management regulations which require
both ends to be marked.
NMFS continues to support this measure as an acceptable risk
reduction measure due to the very real decrease in the volume of line
in the water column. The operational difficulties will require the
industry to work together to come up with coordinated procedures to
reduce gear conflicts. NMFS has required the single buoy to be at the
northern or western end of the trawl string depending on the direction
of the set as a standard procedure. NMFS will work with the industry to
define more suitable standard practices if the industry has a better
approach to this issue. As noted earlier in this rule, NMFS is
accepting comments regarding this interim final rule (see DATES Section
of this interim final rule) and is seeking additional comments on this
measure.
Four of the nine commenters indicated their operation is partly
based on safety. As this was not a universal concern NMFS interprets
this to mean that the issue may be fishery specific (offshore versus
inshore) and, as noted, is seeking additional comment during the 30-day
comment period for this interim final rule which may lead to unique
solutions in the fisheries/areas where safety is an issue.
In 2002, NMFS will pursue resolution of the safety and gear
conflict issues at a gear workshop in February and also at the next
meeting of the ALWTRT. Representatives from the environmental community
and the fishing industry will participate in these meetings.

[[Page 1156]]

Comment 21: One commenter indicated that weak link characteristics
need to be more clearly and uniformly defined.
Response: The Atlantic Large While Take Reduction Plan Regulations
(50 CFR 229.32) define a weak line as a breakable component of gear
that will part when subject to a certain tension load. The regulations
further provided a variety of known weak link configurations and offer
that other material or devices may be approved in writing by the
Assistant Administrator for Fisheries of NMFS. NMFS believes the
regulations adequately define various methods of compliance with the
weak link requirements and offer a process for innovative techniques to
be developed and introduced for consideration.
Comment 22: One commenter indicated that they disagreed with NMFS'
conclusion regarding the entanglement of right whale #2427 which
occurred on July 20, 2001, in the area of Jeffreys Ledge. NMFS
concluded in the proposed rule that the gear measures required for SAM
would have likely allowed the animal to free itself of all gear.
Response: NMFS agrees with the commenter and has decided to
eliminate the requirement for the 3780 lb weak link, which was based on
the conclusion regarding the entanglement of right whale #2427. NMFS
has provided its basis for this change under changes in the Interim
Final Rule from the Proposed Rule.
Comment 23: Two commenters indicated that weak links, as they are
employed in the proposed rule, do not prevent entanglement of whales in
the fishing gear remaining in the water or provide sufficient risk
reduction to render gear ``whale safe'' and further are not proven to
meet the criteria of ``low risk'' gear as defined in the proposed rule.
Response: NMFS recognizes that weak links in and of themselves do
not constitute ``whale safe'' gear. However, NMFS does believe the weak
links are an important component of the low risk gear determination.
The weak links are intended to facilitate the animal's escape from gear
should an entanglement occur in SAM gear or any gear in which weak
links are required. The ability to escape from gear quickly and
relatively easily is very important to avoid serious injury or
mortality. As illustrated by the load cell and testing data presented
in the proposed rule. NMFS does believe that there is sufficient data
to demonstrate that weak links do break when sufficient strain is
exerted on them. Breaking of line at the point of the weak links
reduces the likelihood that a whale will become wrapped in the gear and
will either not be able to freely swim away from the gear or only be
able to swim away with a significant portion of the gear remaining
attached. The weak links allow an entangled whale to break away from
the gear with little or no gear attached minimizing the potential for
the entanglement episode to have any significant adverse effects on the
individual right whale.
Comment 24: Three commenters indicated that it is technically
feasible to remove all vertical lines from the water column in gillnet
and lobster fisheries using a corrodible link (link which corrodes in
sea water at a known rate) with a bundled or coil buoy line and a hard
float.
Response: NMFS recognizes these techniques exist and are reported
to be used in some Caribbean pot fisheries. The NMFS Gear Research Team
presented data on field tests using corrodible links as part of the
June 27-28 ALWTRT. This technique has not been employed in the fixed
gear fisheries which occur along the Eastern seaboard due to the
potential for gear conflicts which are expected to result in lost gear
further resulting in increased ghost gear with associated entanglement
risks. The observations of these commenters are correct that it is
technologically feasible to elimiante endlines/buoy lines for part of
the time that fixed gear is in the water. NMFS has determined it is not
practical at this time for the reasons stated earlier. NMFS will seek
further discussion of these techniques and resolution of the gear
conflict issues in the upcoming gear workshop and the 2002 meeting of
the ALWTRT.
Comment 25: One commenter indicated that the fixed gear (lobster
trap and gillnet) and mobile gear fisheries (trawling) should be
segregated to specific parts of the ocean to reduce gear conflicts.
Response: NMFS acknowledges that this management approach would
alleviate gear conflicts between fixed and mobile gear fisheries, but
has determined that conflicts within the fixed gear fishery are also a
problem of considerable magnitude. Lobster and gillnet fisheries rely
on the visual or radar reflector reference to an endline/buoy line when
setting out and retrieving gear to prevent gear conflicts and
subsequent gear loss. Without this visual guide, one lobster fishermen
could set his gear directly on top of another set of traps. Segregation
of mobile and fixed gear types does not appear to solve the problem of
gear conflicts.
Comment 26: One commenter indicated that NMFS should develop a
ghost gear recovery program, similar to the program in the Commonwealth
of Massachusetts, in conjunction with the states to remove gear that
may entangle whale from the water.
Response: NMFS acknowledges the comment and will discuss the
viability of ghost gear programs with state managers in an effort to
remove ghost gear as an entanglement risk. The concept will also be
suggested as a discussion item at the next ALWTRT Meeting.
Comment 27: One commenter indicated that states should reduce the
number of recreational lobster pots allowed which would result in a
reduced number of vertical lines in the water column.
Response: NMFS does not have jurisdiction over state managed
recreational fisheries through the ALWTRT. The concept has merit and
NMFS will suggest it as a discussion item with the participating states
at the next ALWTRT Meeting.
Comment 28: Two commenters endorsed the concept of SAM which allows
modified gear into an area in lieu of a complete closure based on the
fact that a complete closure results in an edge effect. The commenter
described an edge effect as a situation where a concentration of gear
is set along the periphery of the closed area.
Response: NMFS acknowledges the comment in support of the SAM
program and has experienced the edge effect as a result of other
commercial fishery closures. For the reasons specified in the proposed
rule, in the response to comments and elsewhere in this interim final
rule, NMFS believes that greater conservation benefit is realized from
gear restrictions within SAM areas as compared to a complete closure.
Comment 29: One commenter indicated that NMFS should provide
estimates of the amount of actual lobster trap and gillnet gear which
will be displaced in the event of a total closure or if fishermen
decide the gear modifications are not feasible and consequently decide
to fish elsewhere.
Response: NMFS has completed an EA for the SAM interim final rule
which is available for public review. NMFS has identified impacts on
the fishing industry, including the number of vessels impacted, in that
document.
Comment 30: Four commenters indicated that NMFS should modify the
requirement for a weak link between the surface and subsurface system.
These

[[Page 1157]]

commenters indicated the proposed weak link should be at the same
breaking strength as the buoy weak link or be completely removed. The
basis for removal or replacement was that the proposed maximum breaking
strength of 3780 lbs (1714.3 kg) provided no benefit to entangled
animals as it may actually prevent the animal from physically reaching
the lower breaking strength buoy weak link(s) thus reducing the ability
of an animal to free itself from an entanglement.
Response: NMFS proposed this 3780-lb (1714.3-kg) maximum breaking
strength ``system'' weak link based on the analysis of an entanglement,
and subsequent successful disentanglement, which occurred on July 20,
2001, in the area of Jeffreys Ledge. NMFS did consider setting the
breaking strength of the system weak link at the same level as the buoy
weak link, but the buoy weak links are 1100 lbs (498.8 kg) for gillnet
buoys and 1500 lb (680.4 kg) (SAM in Offshore Lobster Waters maximum)
and 2000 lb (906.9 kg) (Offshore Lobster Waters maximum for non-SAM
use) for lobster trap buoy weak links. The values of 1100, 1500 and
2000 (498.8, 680.4, 906.6 kg.) have all been exceeded in load cell
testing measurements. These load cell measurements exceeded the 2800 lb
(363.2 kg.) limit of the load cell and clearly demonstrate that loads
in excess of 1100, 1500 and 2000 lbs (498.8, 680.4, 906.6 kg.) have
occurred in these gear types. Based on this load cell data NMFS cannot
require a weak link with a breaking strength below values we have
measured in the buoy line section of the gear. Based on the comments
received regarding this analysis NMFS believes that this system weak
link proposal requires further discussion and development in the take
reduction team arena. The proposal for a system weak link was
completely removed from the attached interim final rule and will be
discussed further with the ALWTRT.
Comment 31: Four commenters indicated that NMFS did not propose a
600-lbs (272.4-kg) weak link in all SAM areas west of the proposed
offshore SAM area agreed to by the offshore lobster fishery
representative at the June 27-28, 2001, ALWTRT meeting. This proposed
division was at approximately 68 deg. 15' W. long.
Response: NMFS recognizes that a 600-lb (272.4-kg) weak link west
of the proposed offshore SAM area was not proposed. The entire SAM area
includes 4 distinct areas which have year round gear requirements in
place already per the ALWTRP (50 CFR 229.32). These areas, from west to
east, are the Northern Inshore Lobster Waters, Northern Nearshore
Lobster Waters, Offshore Lobster Waters, and Other Northeast Waters
(gillnet area description). The intent of the SAM program is to leave
these distinct areal definitions in place and require additional gear
modifications for the portions of these areas that have a SAM area
overlaid on them. This approach is clarified in this rulemaking. Given
that this is the approach, a subdivision of the Offshore Lobster Waters
area into two areas with a 600-lb (272.4-kg) buoy weak link for one
area and a 1500-lb (680.4-kg) buoy weak link for the other area during
a SAM period was determined by NMFS to be too complex. Complex
regulatory structure can result in confusion which may lead to
unintended non-compliance.
Comment 32: Three commenters indicated that NMFS should require
gillnet weak link breaking strengths at values less than 1100 lb (498.8
kg) based on NMFS testing reported in the proposed rule.
Response: NMFS did conduct research with 1100 lb (498.8 kg) and
reduced strength weak links, 600 lb (272.4 kg), in gillnets as reported
in the proposed rule and continues to work towards reducing weak link
breaking strengths to the lowest possible value which will allow
fishing and provide an increased probability that an entangled animal
will be able to break free from gear should an entanglement occur. The
difficulty with going to a 600-lb (272.4-kg) breaking strength weak
link at this point in time is that the Other Northeast Waters (as
defined by the ALWTRP, 50 CFR 229.32) includes waters out to the Hague
Line. The expansive area covered by the gillnet ALWTRP includes
physical environments that require that the 1100-lb (498.8-kg) breaking
strength weak link be maintained. As stated previously, NMFS will
continue gear research to determine the lowest possible value which
will allow fishing to continue safely and provide a higher probability
that an entangled animal will be able to free itself in the event of an
entanglement.

Neutrally Buoyant Line Issues

Comment 33: Five commenters specifically indicated their support
for the use of neutrally buoyant or sinking line for ground lines and
buoy lines to reduce the risk of entanglement.
Response: NMFS acknowledges the general support for the use of
neutrally buoyant line to reduce the probability of entanglement. This
measure was included in the interim final rule based on the support of
the fishing industry and the environmental community and NMFS' belief
that this measure will provide considerable benefits in the elimination
of entanglements.
Comment 34: Four commenters expressed concern over the cost of
neutrally buoyant line for replacement of ground lines and buoy lines
in the lobster and gillnet fisheries. Commenters estimated costs
ranging from $6,000 for inshore fishermen to $65,000 for offshore
fishermen to change over from their present gear to neutrally buoyant
line. One of these commenters indicated that the SAM East would impact
one particular company quite hard in that they operate five offshore
lobster vessels in that area. Due to the territorial nature of lobster
fishing, these fishermen cannot relocate their gear as a general
matter. Two of these commenters also referenced the poor quality of
neutrally buoyant line available and cited a usable life of 6 months
for some of this neutrally buoyant line recently tested in the field.
Response: NMFS is aware that the cost of compliance with these
regulations will be greater than any previous whale plan gear
modifications. The status of the animals is such that a measure of this
magnitude is required to continue prosecuting the fishery. The higher
cost and burden on the industry in order to be able to fish within the
SAM areas is justified by the increased risk posed of entanglement in
this area due to the presence of concentrations of feeding right
whales. NMFS acknowledges that some of the neutrally buoyant line which
was field tested by NMFS in cooperation with the fishing industry was
of inferior quality and would not be suitable for use. NMFS does
believe that other manufacturers of neutrally buoyant line have
performed well and the manufacturer that had difficulty is working to
improve their product through the information gained during these
experimental gear deployment with the industry.
Comment 35: Three commenters opposed the measure that endlines/buoy
lines be composed of entirely neutrally buoyant line or sinking line
due to operational difficulties associated with the buoy line snagging
on the fishing gear or other bottom materials. These commenters
requested that the requirement be modified to require that the top two-
thirds of the buoy line be composed of neutrally buoyant and/or sinking
line and that the bottom section of line be allowed to be floating
line, not to exceed one-third the length of the buoy line.
Response: NMFS recognizes the operational difficulty of a buoy line
composed entirely of neutrally buoyant and/or sinking line as well as
the industry practice of splicing in floating

[[Page 1158]]

line at the base of the buoy line to prevent snags. NMFS also
recognizes that existing winter restricted period regulations for
fishing in the Cape Cod Bay Restricted Area (CCBRA) allows a section of
floating line not to exceed one-third the overall length of the buoy
line. However, the status of the North Atlantic right whale is such
that a measure of this magnitude is required to continue prosecuting
the fishery. 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''. NMFS believes
that the gear restrictions for SAM reduce the potential for interaction
to occur and also reduce the potential for interaction between North
Atlantic right wales and fishing gear that would otherwise result in
serious injury and/or mortality.

Changes in the Interim Final Rule From the Proposed Rule

NMFS proposed to require the installation of weak links with a
maximum breaking strength of 3,780 lb in the offshore lobster trap and
anchored gillnet gear between the surface system (all surface buoys,
the high flyer, and associated lines) and the buoy line leading down to
the trawl and gillnet, respectively. This proposed measure was the
result of analysis conducted by NMFS from a successful disentanglement
of a 7-year-old male North Atlantic right whale, catalog #2427, on July
20, 2001. NMFS' analysis concluded that the gear recovered during the
disentanglement and the description of the owner's typical gear
configuration indicated that the surface system was separated from the
buoy line going to the trawl by a weak link with a breaking strength of
3,780 lb. It was felt that the presence and location of this weak link
in the gear may have prevented the animal from becoming further
entangled in the buoy line.
However, since the publication of this proposed measure, NMFS
technical experts have re-evaluated this proposed measure. Although in
theory the proposed measure would add an extra level of protection to
potentially prevent the risk of serious injury to North Atlantic right
whales should they become entangled in the buoy line, this measure is
not practical from a mechanical standpoint. Operationally, having any
weak link below the float system will essentially be ineffective. In
order to break, a link would need to have adequate resistance from the
relevant end of the gear. Given that any whale that is caught below the
link would be pulling against nothing more than the surface system and
the buoy, one cannot reasonably conclude that the resistance involved
would be sufficient to trigger the break of the weak link. Therefore,
NMFS has reconsidered this measure and is not requiring the use of weak
links between the surface system and the buoy line for the offshore
lobster trap and anchored gillnet gear within the SAM areas.
A technical change was also made to correct and clarify the intent
of the regulations. ALWTRP gear requirements are described for
designated areas which include: Northern Inshore State Lobster Waters,
Northern Nearshore Lobster Waters, Offshore Lobster Waters, and Other
Northeast Waters (gillnet area). These areas require specific gear
modifications to meet the ALWTRP regulations. As proposed, the SAM gear
modifications are required in addition to or in place of existing
requirements based on the fishery specific area defined by the ALWTRP.
Although the proposed rule discussed the relationship between the
proposed SAM restrictions and the current gear requirements within the
ALWTRP, the description of the lobster trap gear and anchored gillnet
gear requirements in the proposed rule did not explicitly articulate
the specific gear requirements for the portions of the Northern Inshore
State Lobster Waters, Northern Nearshore Lobster Waters, and Other
Northeast Waters (gillnet area) that are overlapped by the SAM areas.
this interim final rule will correct and clarify the regulations to
explicitly define the gear requirements for each of these areas that
are overlapped by SAM Areas.

Classification

This interim final rule has been determined to be significant for
the purposes of Executive Order 12866, because the proposal is
controversial.
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for
this rule. A copy of this analysis is available from NMFS (see
ADDRESSES). Five alternatives were evaluated, including a status quo or
no action alternative, the preferred alternative (PA), and three other
alternatives. A summary of the analysis follows:
1. NMFS considered but rejected a ``no-action'' alternative that
would result in no changes to the current measures under the Atlantic
Large Whale Take Reduction Plan. The ``no-action'' alternative would
result in no additional economic burden on the fishing industry, at
least in the short-term. However, if the status quo is maintained now,
more restrictive and economically burdensome measures than those in
this interim final rule may be necessary in the future to protect
endangered right whales from the fisheries. The no action alternative
was rejected because it would not enable NMFS to meet the RPA measures
of the BO required under the ESA.
2. NMFS considered but rejected an alternative that would implement
one SAM zone comprised of the two separate SAM zones with gear
restrictions throughout the designated time frame. From the data
collected during the 3 years of aerial surveys, it was determined that
the core SAM area, in combination with the existing Cape Cod Bay and
Great South Channel Restricted Areas, encompassed 134 (90 percent) of
the 149 events from 1999-2001. The analysis of this data also led to
the finding that, within the core SAM area, right whale events occur
more frequently in the western part of the zone (near Cape Cod Bay and
the Great South Channel) in March-April than in June-July. For example,
13 of the 15 events outside of the Cape Cod Bay and Great South Channel
Restricted Areas occurred in the area NMFS has defined as SAM West,
which lies west of 69 deg. 24" W. long.
Conversely, during May-July, all of the events within the area
defined as SAM East, which were not in the Great South Channel
Restricted Area, were east of 69 deg. 24" W. long. This analysis
strongly suggests that right whales migrate from west to east within
the SAM core area between the months of March and July. Therefore, NMFS
does not believe that the scientific data supported a single SAM zone
covering the entire area for the duration of the 5 month period.
3. NMFS considered but rejected an alternative that would implement
a single SAM zone based on gear restrictions initially required
throughout the zone, but lifted sequentially over time as
concentrations of right whales move across the zone from west to east.
This alternative is similar to the one described in section 5.3 of the
EA with the only differences being the sequential lifting of gear
restrictions as right whales migrate across the SAM zone from west to
east instead of maintaining gear restrictions for the 5 month duration
of the SAM zone. The analysis of the aerial surveys found that, during
the 3 years data was collected, right whales consistently migrated
across the core SAM area from west to east between the months of March
and July. Therefore, this alternative acknowledges and responds to the
most recent scientific study of right whale distribution and abundance
in the Gulf of Maine.

[[Page 1159]]

However, although sequential openings would make this alternative
somewhat less burdensome than sustaining restrictions over the entire
area for a 5 month period, implementation of this alternative presents
significant logistical difficulties inherent in the regular monitoring
and surveillance of right whales over such a large area.
4. NMFS considered but rejected an alternative that would implement
a single SAM zone based on the same criteria as the preferred
alternative (PA) with no initial gear restrictions required until
concentrations of right whales begin to appear in the area and then
lifted as the animals leave the area. This alternative would be
extremely difficult if not impossible to implement, as NMFS would need
to continuously monitor for the presence of right whales and then
inform industry in a timely manner.
5. The PA would protect predictable annual congregations of North
Atlantic right whales in the waters off Cape Cod and out to the
exclusive Economic Zone line. NMFS has defined two areas (SAM East and
SAM West), where gear restrictions for lobster trap and anchored
gillnet gear are required. These requirements are 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. SAM West will occur on an annual basis for the period
March 1-April 30. SAM East will occur on an annual basis for the period
May 1-July 31. NMFS accepted this alternative as these gear
modifications are necessary to avoid jeopardizing the continued
existence of North Atlantic right whales and enable NMFS to meet a
portion of the RPA in the BOs.
The small entities affected by this interim final rule are gillnet
and lobster trap fishermen. The geographic range of the gear
modifications will include the Northern Inshore State Lobster Waters,
Northern Nearshore Lobster Waters, and Other Northeast Waters (gillnet
area). Under the preferred alternative, 49 vessels are affected, of
which 18 are lobster vessels and 31 are sink gillnet vessels. This
action contains no new reporting or record-keeping requirements.
However, it does require modifications to lobster and sink gillnet
gear. There are no relevant Federal rules that duplicate, overlap, or
conflict with this interim final rule except the requirements related
to no more than one buoy line per trawl being allowed in the SAM area.
These requirements supersede the requirements at 50 CFR 697.21, which
require one radio reflector at each end of a trawl with more than three
traps.
NMFS received only one public comment relating to the economic
impacts of this interim final rule. This comment was considered by NMFS
before it approved this action, and is characterized and responded to
by NMFS in the ``Comments and Responses'' section of the preamble to
this interim final rule. No changes to the rule were made as a result
of the comment received.
NMFS has taken steps to minimize the significant economic impact on
small entities through this PA. The PA meets a portion of the EPA
designed to remove jeopardy, consistent with the requirements of the
ESA, while allowing fishing to continue and, therefore, reduces
economic impacts compared to fishery closures.
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 interim final rule is consistent with the enforceable
policies of the approved coastal management program for that state.
This interim final rule implements a portion of the RPA, which
resulted from section 7 consultations on three FMPs for the monkfish,
spiny dogfish, and Northeast multispecies fisheries, and the Federal
regulations for the American lobster fishery. This interim final rule
implements a component of the RPA contained in the BOs issued by NMFS
on July 14, 2001. Therefore, no further section 7 consultation is
required.
This interim final rule contains policies with federalism
implications that were sufficient to warrant preparation of a
federalism assessment under 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 government in October 2001. No
comments on the federalism implications of the proposed action were
received in response to the October 2001 letter.

References

Merrick, R.L.; Clapham, P.J.; Cole, T.V.N.; Gerrior, P.; Pace,
R.M., III. 2001. Identification of seasonal area management zones
for North Atlantic right whale conservation. Northeast Fisheries
Science Center Reference Document 01-14. October 2001.
Clapham, P.J.; Pace, R.M., III. 2001. Defining triggers for
temporary area closures to protect right whales from entanglements:
issues and options. Northeast Fisheries Science Center Reference
Document 01-06. April 2001.
Resolve. 2001. Meeting Summary Atlantic Large Whale Take
Reduction Team Meeting, June 27-28, Portland, Maine. October 22,
2001.

List of Subjects in 50 CFR Part 229

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

Dated: December 31, 2001.
Rebecca Lent,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.

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

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 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.04.8'...... 70 deg.10'
SAM2............................. 42 deg.12'........ 70 deg.15'

[[Page 1160]]

SAM3............................. 42 deg.30'........ 70 deg.15'
SAM4............................. 42 deg.30'........ 69 deg.24'
SAM5............................. 41 deg.48.9'...... 69 deg.24'
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 for Fisheries, NMFS, 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 area
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) 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.
(iv) 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.
(v) 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) 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.48.9'...... 69 deg.24'
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 for Fisheries, NMFS, 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. 02-274 Filed 1-8-02; 8:45 am]
BILLING CODE 3510-22-P

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