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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 10, 2002 (Volume 67, Number 7)]
[Rules and Regulations]
[Page 1300-1314]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ja02-9]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 001128334-1313-06; I.D. 092101B]
RIN 0648-AN88
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: 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
provide further protection for large whales, with an emphasis on
protective measures to benefit North Atlantic right whales. This final
rule expands gear modifications required by the December 2000 interim
final rule to the Mid-Atlantic and Offshore lobster waters and modifies
requirements for gillnet gear in the mid-Atlantic.
DATES: This final rule is effective February 11, 2002.
ADDRESSES: Copies of the Environmental Assessment (EA), the Regulatory
Impact Review (RIR), and the Final Regulatory Flexibility Analysis
(FRFA), are available from the Protected Resources Division, NMFS, 1
Blackburn Drive, Gloucester, MA 01930-2298. Atlantic Large Whale Take
Reduction Team (ALWTRT) meeting summaries, progress reports on
implementation of the ALWTRP, and a table of the changes to the ALWTRP
may be obtained by writing to Diane Borggaard at the address above or
Katherine Wang, NMFS/Southeast Region, 9721 Executive Center Dr., St.
Petersburg, FL 33702-2432. Copies of the EA, the RIR, and the FRFA can
be obtained from the ALWTRP website listed under the Electronic Access
portion of this document.
Comments regarding the collection-of-information requirements
contained in this final rule should be sent to Patricia A. Kurkul,
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn
Drive, Gloucester, MA 01930, and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Washington,
DC 20503 (Attn: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast
Region, 978-281-9145; Katherine Wang, NMFS, Southeast Region, 727-570-
5312; or Patricia Lawson, NMFS, Office of Protected Resources, 301-713-
2322.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several of the background documents for this final 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,
[[Page 1301]]
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 final rule implements approved modifications contained in the
ALWTRP recommended by the ALWTRT, as well as other modifications deemed
necessary by NMFS to satisfy requirements of the Endangered Species Act
(ESA) and Marine Mammal Protection Act (MMPA). Details concerning the
justification for and development of this rule were provided in the
preamble to the proposed rule (66 FR 49896, October 1, 2001) and are
not repeated here.
Changes to the ALWTRP for Lobster Trap Gear
Northern Inshore State Lobster Waters Area
This final rule removes the option for lobstermen to use line with
a diameter of \7/16\ in (1.11 cm) or less for all buoy line, effective
January 1, 2003, from the Lobster Take Reduction Technology List
applicable to fishing with lobster traps in this area, and it allows
the use of neutrally buoyant line in all buoy lines and ground lines as
an option to be chosen from that list.
Southern Nearshore Lobster Waters Area
This final rule replaces the Lobster Gear Technology List with the
following mandatory gear modifications applicable year-round: (a)
installation of a weak link with a maximum breaking strength of 600 lb
(272.4 kg) on the buoy line, and (b) installation of weak links in such
a way that produces knotless ends if the weak link breaks.
Offshore Lobster Waters Area
This final rule reduces the maximum breaking strength of weak links
at all buoys from 3,780 lb (1,714.3 kg) to 2,000 lb (906.9 kg), and
requires installation of weak links in such a way that produces
knotless ends if the weak link breaks.
BILLING CODE 3510-22-P
[[Page 1302]]
[GRAPHIC]
[TIFF OMITTED] TP10JA02.000
BILLING CODE 3510-22-C
[[Page 1303]]
Changes to the ALWTRP for Gillnet Gear
Gillnet Mid-Atlantic Coastal Waters Area
This final rule replaces the Gillnet Take Reduction Technology List
with requirements to install buoy line weak links with a maximum
breaking strength of 1,100 lb (498.8 kg) placed as close to each
individual buoy as operationally feasible and net panel weak links with
a maximum breaking strength of 1,100 lb (498.8 kg) in the center of the
floatline section on each 50-fathom net panel or every 25 fathoms on
the floatline for longer panels. It also requires fishers to return all
gillnet gear to port with their vessels, or if the gillnets are left at
sea to continue fishing, to secure the nets on each end with anchors
that have the holding power of at least a 22-lb (10.0-kg) Danforth-
style anchor.
[[Page 1304]]
[GRAPHIC]
[TIFF OMITTED] TN10JA02.001
[[Page 1305]]
Changes to the Take Reduction Technology Lists
Lobster Take Reduction Technology List
This final rule removes the option for fishers to use \7/16\ in
(1.11 cm) diameter line for all buoy lines, effective January 1, 2003,
and amends the list to provide the option that all buoy lines and
ground lines be composed entirely of sinking and/or neutrally buoyant
line. For the Southern Nearshore Lobster Waters Area, this final rule
replaces the requirement to choose options from the Lobster Take
Reduction Technology List with a set of specific requirements.
Gillnet Take Reduction Technology List
This final rule removes the option for fishers to use line of \7/
16\ in (1.11 cm) in diameter or less for all buoy lines, requires
installation of weak links with a maximum breaking strength of 1,100 lb
(498.8 kg) in the center of the floatline of each net panel, and
requires that all buoy lines be composed entirely of sinking and/or
neutrally buoyant line.
Voluntary Measures
NMFS continues to encourage fishers to use and maintain knot-free
buoy lines. As described in the preamble to the proposed rule, the
ALWTRT initially recommended requiring knot-free buoy lines, but
changed the recommendation from a mandatory measure to a voluntary
measure because fishers need to repair and re-tie buoy lines frequently
at sea. The knot-free buoy line concept is similar to the breakaway
buoy concept, where the objective is to keep knots from becoming lodged
in a whale's baleen or from contributing to the wrapping of line around
an appendage.
In some cases, fishers prefer splices to knots, because splices are
stronger. NMFS is recommending the use of splices wherever possible,
because splices are not likely to increase entanglement threat.
However, NMFS recognizes that connecting lines using a splice may not
be practicable while gear is being hauled. NMFS encourages the splicing
of line, as opposed to knot-tying, especially during seasonal gear
overhauls or as new gear is added. Although concepts for devices to
join lines quickly at sea have been proposed, none have been developed
yet; therefore, there is currently no feasible way to join lines
quickly other than knotting. NMFS will continue to investigate line
connecting alternatives and may require further use of knotless lines
in the future if a reasonable substitute for knots is developed.
Comments and Responses
NMFS received 23 sets of written comments on the proposed rule by
the October 31, 2001 deadline. The comments were considered in
developing this final rule to amend the regulations that implement the
ALWTRP and are responded to here.
General Comments
Comment 1: Two commenters generally opposed the gear regulations,
one of which noted that the regulations were too restrictive and
costly. Four commenters generally believed that the regulations were
not restrictive enough; all noted that other options exist that have a
greater potential to reduce risk of serious injury and mortality to
large whales. Seven commenters generally supported the new rule
changes. One commenter expressed support because the proposed rule
reflects the ALWTRT recommendations, and another because they were
based on reasonable and tested gear modifications.
Response: NMFS is amending the regulations that implement the
ALWTRP to provide further protection for large whales, with an emphasis
on North Atlantic right whales due to their critical status. NMFS takes
the economics of the fisheries into consideration, to the extent
possible, when developing marine mammal protective measures that meet
the standards of the MMPA and ESA. NMFS seeks recommendations from the
ALWTRT, and considers these along with the best available information
on gear and large whale entanglements when developing ALWTRP
regulations.
Comment 2: Eight commenters noted other sources or potential
sources of right whale mortality, such as recreational boaters,
commercial shipping vessels, whale watch vessels, other fishing gear
aside from lobster and gillnet gear that has vertical line in the water
column or is configured in a way that poses a potential threat to right
whales, and gear employed by foreign fishing vessels. Four commenters
noted that NMFS was implementing significant modifications to fishing
gear and practices of the lobster and gillnet fisheries without
providing adequate protection to right whales from other sources of
mortality. One of these commenters expressed concern that right whale
mortality due to fishing is the smallest source of right whale
mortality, but NMFS focuses on it because it is the easiest to
manipulate.
Response: This final rule stems from a component of the Reasonable
and Prudent Alternative (RPA) resulting from consultations required
under section 7 of the ESA. NMFS issued four BOs on the monkfish, spiny
dogfish, multispecies Fishery Management Plans (FMPs)and lobster
Federal regulations on June 14, 2001. NMFS is issuing this final rule
specifically to address commercial fishery impacts from these four
fisheries. In addition, under the MMPA, NMFS must reduce incidental
mortality and serious injury of marine mammals resulting from
interaction with commercial fishing gear. NMFS appreciates the gillnet
and lobster fishing industries' involvement in the ALWTRT and their
efforts to reduce takes of marine mammals in their fisheries. NMFS
realizes that other marine resource user groups, including other
fisheries with gear with vertical lines, are affecting large whale
populations, and NMFS will continue efforts to try to reduce these
impacts.
NMFS is currently addressing other sources of right whale mortality
through other rulemaking processes and policy discussions. NMFS issued
a contract for the completion of a report that made recommendations to
decrease ship strikes. The Northeast and Southeast Recovery Plan
Implementation Teams, composed of members from various marine
stakeholders, including the U.S. Navy and port authority
representatives, have been advising NMFS on ways to address impacts
from recreational and commercial vessels. NMFS is taking these
recommendations under consideration and is working to minimize the
potential for vessel collisions. NMFS is also working on a proposed
rule to minimize the potential for future serious injury and mortality
of whales from whale watch vessels. NMFS is continuing to work with
Canadian biologists and to support efforts to expand disentanglement
efforts in Canadian waters. NMFS will continue to work with the
Government of Canada toward development of similar protective measures
for right whales in Canadian waters.
Comment 3: One commenter noted that NMFS should include through the
Take Reduction Team (TRT) process all other fishing gear types that
pose a potential threat to the right whale because of the use of a
vertical line in the water column or the configuration of the gear
itself. This commenter urged NMFS to work with states and Fishery
Management Councils (FMC) to obtain further information on these
fisheries as well as other experimental fishery permits that might
potentially use a vertical buoy line. Another commenter recommended
that NMFS consider including other regulated fixed gears that use buoy
lines, and gear types that have a configuration that poses a
[[Page 1306]]
potential threat to right whales in these regulations because
unidentified gear or line has been involved in whale entanglements.
NMFS should give a rationale for gear determined to be exempt from such
measures.
Response: At the next ALWTRT meeting, NMFS would like to discuss
this with ALWTRT members and to obtain recommendations on which
fisheries to bring into the take reduction team process and which
fisheries to exempt. Currently, state representatives and council
members have been invited to participate as members of the NMFS take
reduction teams. Through its involvement, NMFS can utilize its
expertise and obtain further information on additional fisheries and
experiments that may potentially use a vertical buoy line. NMFS also
participates in FMC and Atlantic States Marine Fisheries Commission's
protected species committees/subcommittees to coordinate on protected
species management issues. Also, through the ESA section 7 process, any
Federal Experimental Fishery Permit would be reviewed to assess the
impacts of that fishery on species protected under the ESA, such as
right whales.
Comment 4: Two commenters opposed the preemption of state laws and/
or regulations by Federal regulations issued by NMFS. One of these
commenters noted that states should make their own rules as they are
better able to adapt whale protection measures in response to new
information, and to adjust those measures when necessary, than NMFS.
This same commenter noted that enforcement could prove to be even more
problematic than it currently is.
Response: Although the MMPA provides NMFS with authority to
regulate in State waters, states can develop equally protective or more
protective restrictions if they choose, and NMFS encourages such
action. Further, NMFS has cooperative agreements in place with a number
of Atlantic states, which enable states to enforce requirements of the
MMPA and its implementing regulations.
NMFS tries to coordinate with states on other issues as well. For
example, with regard to gear markings that yield individual vessel
information, many of the state and Federal FMPs currently require
marking of buoys and/or traps with individual vessel identification.
NMFS plans to continue to work with state fisheries agencies to
investigate gear marking coast-wide and identify gaps in marking of
surface gear, gillnets, and traps. This information will be presented
to the ALWTRT for future consideration.
Comment 5: NMFS must develop and implement plans for the
conservation and survival of the right whale under the MMPA and ESA and
the current plan has not met that mandate.
Response: NMFS is presently updating the ALWTRP with additional
gear modifications in this final rule, as well as with measures
proposed for Seasonal Area Management (66 FR 59394, November 28, 2001)
and Dynamic Area Management (66 FR 50160, October 2, 2001). It is NMFS'
Biological Opinion (BO) that if the agency modifies the ALWTRP
according to the RPA, then the continued operation of the four
fisheries will not jeopardize the continued existence of the western
North Atlantic right whale. The ALWTRP is not a static plan, and NMFS
continues to revise the ALWTRP to achieve its goals of reducing the
serious injury and mortality of whales in commercial fishing gear. The
ALWTRT continues to convene yearly as required to make recommendations
to NMFS on any needed modifications to the plan to reach the Potential
Biological Removal levels and Zero Mortality Rate Goal of right,
humpback, fin and minke whales. Additionally, pursuant to the ESA, NMFS
publishes recovery plans for endangered or threatened marine mammals to
promote the recovery of the species. The first Right Whale Recovery
Plan was published in 1991, and an updated draft was recently released
for public comment (66 FR 36260, July 11, 2001). The comment period
ended October 25, 2001, and NMFS is presently reviewing comments and
modifying the plan. The plan includes an implementation schedule to
direct and monitor the completion of recovery tasks.
Comment 6: One commenter noted that although progress has been made
to identify gear modifications that hold potential for reducing
entanglement risks, strong reliance on gear modification as a take
reduction tool is warranted only if there is a solid reason to believe
they will reduce entanglement risks (e.g., neutrally buoyant line). The
commenter added that most gear modifications to date offer little
certainty that they will actually reduce entanglement risk. Another
commenter thought that NMFS should stop relying on current best fishing
practices to reduce mortality and serious injury as these practices
have been unsuccessful.
Response: NMFS believes that implementing the additional gear
modifications in this final rule combined with the forthcoming final
rules on Seasonal Area Management (SAM) and Dynamic Area Management
(DAM) of lobster and gillnet fisheries will reduce interactions between
right whales and fishing gear, and reduce serious injury and mortality
of right whales due to entanglement in fishing gear. The RPAs in the
June 14, 2001, BOs advised NMFS to, amongst other measures, expand
additional gillnet and lobster pot gear modifications to avoid
jeopardizing the continued existence of North Atlantic right whales
(See preamble under Changes in the Final Rule from the Proposed Rule
for discussion on the RPA and the southeast gillnet fishery). Since
issuance of the BOs, NMFS has conducted additional analyses of
available data including that on the seasonal movement and
congregations of right whales, previous entanglements, and the nature
and position of gear in the water. Based on these analyses and our
knowledge of North Atlantic right whale behavior, NMFS has identified
gear modifications that prevent serious injury or mortality. These
additional gear modifications will be implemented with this final rule.
NMFS considered multiple strategies to decrease gear interactions with
large whales, including implementing gear modifications based on recent
technological advances. Time/area closures have also been used under
the ALWTRP to remove the potential for interaction between large whales
and lobster and gillnet fisheries.
Comment 7: One commenter noted that NMFS must undertake an adequate
program of research and development for the purpose of devising
improved fishing methods and gear so as to reduce the incidental taking
of right whales in commercial fishing. Two commenters noted that there
should be aggressive gear research undertaken with promising
innovations implemented in a timely manner.
Response: As part of the RPA in the BOs issued on June 14, 2001,
NMFS noted the need for continued gear research and modification. NMFS
is committed to gear research and development, and will expand this
program as funding allows. NMFS has gear laboratories and research
teams that specifically focus on gear development and testing.
Additionally, NMFS contracts with researchers, individuals and
companies to develop gear solutions. Much of the current take reduction
plan measures are based on the outcome of such gear research (e.g.,
weak links) conducted and/or funded by NMFS. The gear modifications are
important to reduce interactions between right whales (and other large
whales) and fishing gear to further reduce serious injury and mortality
of
[[Page 1307]]
large whales due to entanglement in fishing gear. In addition, NMFS
intends to continue to support the contributions made by the ALWTRT's
Gear Advisory Group. NMFS is collaborating with other organizations to
host a gear workshop, tentatively scheduled for February 2002, to
investigate additional options and gear enhancements for gillnet and
lobster trap gear. The results of this workshop will be distributed to
the ALWTRT for consideration of future gear recommendations to NMFS.
(Also see response to comment 34).
Comment 8: Two commenters objected to the language in the BO that
NMFS would use an entanglement by unidentified gear or gear approved
for use in multi-species fisheries to generate a conclusion that the
measures in the RPA are not demonstrably effective at reducing right
whale injuries or death. They mentioned the gear could possibly be
Canadian or from other sources of line. The commenters also felt that
scarification is a poor indicator of whether the RPA is effective as
scars can occur for a number of reasons, including interactions with
fishing gear and vessels that are not serious.
Response: Although this comment is not related to the proposed rule
for gear modifications, NMFS will take the comments under
consideration.
Comment 9: One commenter urged the ALWTRT to continue to work with
the Gear Advisory Group to explore and develop additional gear options
that do not pose a risk to the large whale population.
Response: NMFS intends to continue to support studies on gear
modifications to reduce interactions, and eliminate serious injury and
mortality. NMFS sees the value of the contributions that the Gear
Advisory Group can bring to the ALWTRT. NMFS is collaborating with
other organizations to host a gear workshop in 2002 to investigate
options for gillnet and lobster trap gear modifications to prevent
serious injury to right whales that may become entangled in gillnet and
lobster trap gear. The results of this workshop will be distributed to
the ALWTRT for consideration in making additional recommendations to
NMFS. NMFS will also be reconvening the Gear Advisory Group in 2002 and
distributing the results of the gear workshop to participants.
Comment 10: NMFS should immediately identify at-sea enforcement as
a high priority and develop protected resources penalty schedules for
the ALWTRP.
Response: NMFS agrees that at-sea enforcement is important to the
success of the ALWTRP and does conduct such enforcement. NMFS also
relies on its partnership with the U.S. Coast Guard to monitor
compliance with the ALWTRP. NMFS already has penalty schedules for
violations of the MMPA, ESA, and regulations issued pursuant to those
statutes.
Comment 11: The fishing industry was not notified of the
publication of the proposed rule, and involving industry is crucial to
the success or failure of these plans. A letter to permit holders,
similar to what is done for fishery regulations, should have been sent
to involve industry. Involving industry is crucial to the ALWTRP
process.
Response: Given the current critical status of the right whale
population and the aggregate effects of human-caused mortality that
have led to the species' current status, the development of this final
rule occurred during an accelerated rulemaking process. Time
constraints prevented NMFS from holding public hearings on the current
regulations; however, NMFS used other ways to let the public know that
public comments were being sought on a proposed rule to address
commercial fishery/large whale interactions. These efforts included
distributing the information to ALWTRT members who represent various
stakeholder groups and provide valuable links to distribute information
to the public, issuing a NOAA press release and an announcement in
NOAA's FishNews, providing notification through the Federal Register,
and communicating with state managers. NMFS will consider other means
of communicating with the public and welcomes recommendations on ways
to disseminate such information, such as through letters to permit
holders, as was suggested. NMFS agrees with the commenter that
involving fishermen in the process is important to the success of the
ALWTRP.
Comment 12: Three commenters noted that neutrally buoyant line
holds promise as a measure to reduce risk of entanglements. Removing
floating line from the water column is widely believed to be important
to reducing risk to whales. Two of these commenters also made specific
recommendations by management area for the lobster fishery: (1) Both
commenters noted that the use of neutrally buoyant line should be
required in the Northern Inshore Lobster Waters. One of these
commenters thought this should be effective January 1, 2003, in the
Cape Cod Bay Critical Habitat, and in the Northern Inshore State
Lobster Waters Area effective January 1, 2004; (2) both commenters
suggested NMFS require the use of neutrally buoyant line in offshore
lobster trawl lines. One of these commenters suggested implementation
by January 1, 2004; and (3) one commenter thought that NMFS must
mandate the immediate use of neutrally buoyant line for all lobster
ground lines, and another commenter suggested this requirement be
mandated by 2004.
Response: Neutrally buoyant line is an important gear modification
to reduce interactions between right whales and fishing gear by
reducing the amount of line in the water column. NMFS has incorporated
the option to use neutrally buoyant line into parts of the ALWTRP
through this final rule.
NMFS will seek recommendations from the ALWTRT on whether to
require neutrally buoyant line and how NMFS could implement such a
requirement in the future. In addition, NMFS will continue to work with
industry to incorporate neutrally buoyant or sinking line into their
operation whenever possible.
NMFS is currently investigating issues such as the time to change
over and other operational problems associated with the full
utilization of neutrally buoyant line. For example, NMFS is working
with a Gulf of Maine offshore lobster fisherman who is willing to
change over all his buoy and ground lines to neutrally buoyant line for
1800 traps. This fisherman will provide monthly reports to the NMFS
Gear Research Team on how the traps work with the line, how breaking
strength holds up over time, and the life expectancy of the gear. NMFS
is also beginning to investigate the manufacturing issues that may
arise should this technology be used as a widespread risk reduction
tool. These results will be presented to the ALWTRT for consideration.
The NMFS' Gear Research Team has also supplied 90 miles (78.2 nm) of
neutrally buoyant line to lobster and gillnet fishermen from Maine to
Rhode Island to test the life expectancy of the line, how the breaking
strength holds up over time, and other operational considerations.
These results will also be provided to the ALWTRT for consideration.
NMFS notes that the requirement to use neutrally buoyant line in a
Seasonal Area Management (SAM) could mean benefits to whales if these
same fishers use this gear in other areas. Fishermen and the NMFS Gear
Research Team report that many fishermen from Maine through Rhode
Island already use neutrally buoyant line as part of their fishing
operation due to local tides and/or type of fishing bottom. NMFS
appreciates the concern and effort
[[Page 1308]]
fishers have shown by switching to neutrally buoyant or sinking line to
reduce gear interactions with large whales.
Comment 13: One commenter stated that weak links at buoy lines may
offer little meaningful protection against entanglement risks. As most
entangled whales are found without buoys, a weak link at the buoy may
not increase the likelihood that a line sliding through a whale's mouth
will break away before the whale becomes more entangled. It is
questionable that a weak link strong enough to maintain fishing gear in
an operable condition would fall free before a whale begins thrashing
and becomes entangled. The commenter also suggested that NMFS should
assess the effectiveness of knotless lines by examining lines removed
from whales, as well as photos of the entangled whales, to evaluate the
extent to which knots tied by fishermen may have contributed to the
entanglement. The relative proportion of entangled whales with and
without potential troublesome knots could provide a measure of the
overall effectiveness of eliminating knots.
Response: NMFS believes that implementing the additional gear
modifications in this final rule combined with the forthcoming final
rules on SAM and DAM of lobster and gillnet fisheries will reduce
interactions between right whales and fishing gear, and reduce serious
injury and mortality of right whales due to entanglement in fishing
gear. NMFS feels that weak links and installation of these in such a
way that produces knotless ends if the weak link breaks are important
gear modifications. Of the 15 right whale entanglements from 1997
through 2001 where gear was either recovered or documented, buoys were
present in eight cases. NMFS will be conducting a similar analysis with
other whale species.
NMFS has investigated whether an analysis on rope recovered from
entangled whales could help determine the effectiveness of eliminating
knots. However, NMFS does not usually have information on how the whale
became entangled and in which part of the retrieved gear it was
entangled. NMFS will continue to investigate this and work with others
to obtain information to better assess large whale interactions with
fishing gear.
In regard to the question of a weak link being strong enough to
break free and maintain gear in operable condition, see summary on page
49899 of the proposed rule on gear modifications (66 FR 49896, October
1, 2001) of the right whale entanglement and subsequent gear analysis
indicating that the surface system was separated from the buoy line
going to the trawl by a 3,780-lb (1,714.3-kg) weak link. It appears the
whale was able to part the gear at the 3,780-lb weak (1,714.3-kg) link
although the whale was still entangled in gear. However, NMFS believes
that the lower breaking strengths for weak links required in this final
rule will provide improved protection for right whales. NMFS will
continue working with others to develop additional gear modifications
and appreciates hearing ideas from the public.
Southern Nearshore Lobster Waters Area
Comment 14: One commenter supported NMFS' proposal to replace the
Lobster Gear Technology List with the following year-round gear
modifications: (a) Installation of a weak link with a maximum breaking
strength of 600 lb (272.4 kg) on the buoy line, and (b) installation of
weak links such that if the lines were to break, they would produce
knotless ends on the line.
Response: Research will continue to investigate alternative methods
to connect lines.
Comment 15: One commenter opposed the elimination of the gear
technology list for the Southern Nearshore Lobster Waters Area. The
commenter noted that they should have an option list just like northern
inshore areas are offered one.
Response: NMFS proposed to replace the Lobster Take Reduction
Technology List with mandatory gear modifications based upon the
recommendation of the ALWTRT Mid-Atlantic subgroup. NMFS believes that
these mandatory gear modifications are necessary to reduce
entanglements in this area.
Comment 16: One commenter supported reducing the current 1,100 lb
(498.8 kg) breaking strength at the buoy to 600-lb (272.4 kg) breakaway
for nearshore lobster areas due to research results, except for the
Outer Cape or offshore due to difficult sea and current conditions.
Response: Current gear research indicates that a 600 lb (272.4 kg)
breaking strength weak link is sufficient to protect whales, as well as
to keep gear feasible in the Southern Nearshore Lobster Waters Area and
prevent ghost gear. The 600 lb (272.4 kg) weak link requirement has
been in effect since February 21, 2001, in the Northern Nearshore
Lobster Waters Area, and the NMFS Gear Research Team has had very few
problems reported to them regarding weak links. The NMFS Gear Research
Team has conducted research on how much strain there is on inshore buoy
systems on the Outer Cape. Inshore lobster buoys were towed up to 20
knots and a 120 lb (54.432 kg) strain was recorded. Load cells were
also attached to large buoy systems in Grand Manan Channel, known for
its strong tides (approx. 18 to 20 ft (5.49 m to 6.09 m)), and a 140 lb
(63.5 kg) strain was recorded in the spring. For comparison, NMFS notes
that in over a year of testing the highest maximum strain the NMFS Gear
Research Team recorded on load cells attached to offshore lobster
surface buoy systems was 535 lb (243 kg). NMFS cautions that recorded
strains can not dictate weak link breaking strengths, as breaking
strengths must include reasonable measures of safety that would help
prevent gear from being lost at sea during the worst conditions. NMFS
appreciates the commenter's general support for changes to other
nearshore lobster areas.
Comment 17: Two commenters noted that neutrally buoyant line should
be a requirement in the Southern Nearshore Lobster Waters Area as the
lowered breaking strength of the weak link may not provide adequate
risk reduction.
Response: Past entanglements provide evidence that weak links are a
critical measure to prevent serious injury or mortality of marine
mammals. NMFS believes that the use of a 600-lb (272.4-kg) weak link on
the buoy line and knotless weak links would reduce risk of serious
injury and death if an entanglement were to occur. In response to the
comment on neutrally buoyant line, see response to comment 12.
Comment 18: One commenter noted that there is not sufficient
research on the proposed weak links on a buoy line (not the breakaway
at the buoy) to mandate a year-round requirement for all buoy lines in
the southern nearshore areas. This commenter supported research to
develop a weak link in the main buoy line.
Response: The proposed rule did not clearly indicate where in the
buoy line the weak link is required. NMFS has clarified this in the
regulatory text in this final rule. Specifically where fishermen are
required to utilize buoy weak links, they will also be required to
place the weak link as close to each individual buoy as operationally
feasible. The NMFS Gear Research Team has already begun investigating
development of a weak link in the main buoy line.
Offshore Lobster Waters Area
Comment 19: Two commenters did not support the proposal to reduce
breaking strength of weak links in
[[Page 1309]]
offshore gear to 2,000 lb (906.9 kg). These commenters added that the
breaking strength of 2,000 lb (906.9 kg) is approximately four times
the maximum strain of 535 lb (243 kg), not three times as stated in the
discussion of the proposed rule. Two commenters believed that the
breaking strengths in both the offshore surface and buoy lines should
be lowered. One of these commenters suggested that NMFS subdivide the
offshore area to allow for the reduced breaking strengths of 600 lb
(272.4 kg) at all buoys and the use of a weak link with a maximum
breaking strength of 1500 lb (680.4 kg) between the surface system and
the line to the trawl; and in offshore areas 1500 lb (680.4 kg) be
required at all buoys and the line between the surface system and the
trawl. All four of the commenters suggested NMFS should require
breaking strengths to more closely reflect the maximum loads sustained
by the gear as outlined in the final summary of the latest ALWTRT
meeting in order to reduce entanglement risks.
Response: The breaking strength of 2,000 lb (906.9 kg) is more than
three times the maximum strain of 535 pounds (243 kg) recorded on the
buoy system of offshore lobster gear, not three times the maximum
strain of 535 pounds (243 kg) as reported in the proposed rule. NMFS
cautions that recorded strains can not dictate weak link breaking
strengths, as breaking strengths must include reasonable measures of
safety that would help prevent gear from being lost at sea during the
worst conditions. NMFS believes that the required breaking strengths
are both beneficial to whales and safe for the industry. The 2,000 lb
(906.9 kg) breaking strength for year-round use in offshore lobster
waters outside of SAM was arrived at through the TRT process. NMFS
believes a reduction from the previously required 3,780-lb (1,714.3-kg)
weak link to the 2,000 lb (906.9 kg) weak link required in this final
rule is a substantial reduction and provides a conservation benefit to
right whales. The NMFS Gear Research Team will continue load cell
testing on offshore lobster gear and report their results to the
ALWTRT. NMFS will continue to work with industry and others on this
issue through the ALWTRT process, and will seek feedback from the
ALWTRT, gear workshop participants, and the Gear Advisory Group on the
most appropriate location(s) to conduct load cell testing on offshore
lobster gear.
Comment 20: Two commenters noted that having two different breaking
strengths in the gear is confusing to the industry and three commenters
noted it is not protective of whales. These commenters believe that a
3,780-lb (1,714.3-kg) weak link at the surface buoy only helps if a
whale becomes entangled above the weak link at the surface, and that
this defeated the purpose of lowering the strength of the weak link at
the buoys.
Response: NMFS has been conducting outreach to offshore lobster
industry representatives on this issue and discussions with them and
fishermen indicate that having different breaking strengths in their
gear is not confusing. Rather, the industry understands why various
breaking strengths may be needed and would rather make modifications
based on what research indicates is needed to reduce interactions.
In response to comments questioning the conservation benefit of a
3,780-lb (1,714.3-kg) weak link at the line between the surface system
and the buoy line leading down the trawl, NMFS has decided to withdraw
this requirement at this time. NMFS proposed this requirement based on
the analysis of offshore lobster gear recovered from an entangled right
whale, as described in the proposed rule (66 FR 49896, October 1,
2001). As the results of the gear analysis seemed to indicate that the
presence and location of the weak link in the gear may have prevented
the animal from becoming further entangled in the buoy line below the
weak link, NMFS proposed to require the installation of this weak link
in offshore lobster traps. However, as there are concerns whether
sufficient resistence would exist for a whale to part such a weak link
given its position in the gear, NMFS has withdrawn this proposal. NMFS
will discuss this analysis with the ALWTRT and continue load cell
testing on offshore lobster gear as mentioned in the previous comment.
Comment 21: One commenter supported the weak link below the buoy on
the offshore lobster gear. The commenter supported NMFS making this
proposal based on detailed entanglement data.
Response: NMFS has decided not to implement this requirement at
this time (see previous comment).
Comment 22: Two commenters generally agreed with the provisions in
the proposed rule for the Offshore Lobster Waters Area, and one added
that the breaking strengths noted in the proposed rule were a positive
step toward further protection of right whales and other marine
mammals. Both commenters noted that the 2,000-lb (906.9-kg) weak link
was a compromise by the offshore industry, and stated that the offshore
industry supported this recommendation contingent on the lack of lost
or ghost gear produced by inclement weather.
Response: As described in the response to comment 19, NMFS will
continue to conduct load cell testing on offshore lobster gear to
investigate the operational forces experienced in this fishery under
various conditions.
Comment 23: One commenter supported the installation of weak links
so that if the lines were to break, they would produce knotless ends on
the line.
Response: Broken weak links providing knotless ends on the line is
important so that it will not become lodged in the whale's baleen or
around an appendage of a whale.
Northeast and Mid-Atlantic Gillnet Waters Area
Comment 24: One commenter generally supported the extension of
measures for gillnet gear from the northeast to mid-Atlantic waters.
One commenter supported the proposal to require fishers in the mid-
Atlantic to return all gillnet gear to port with their vessels or to
anchor their gear.
Response: The need for additional gear modifications in these
fisheries had been considered by the ALWTRT, but not implemented by the
December 2000 interim final rule. The RPA developed in response to the
Bos included additional gear modifications for the Mid-Atlantic gillnet
and lobster trap fisheries that were necessary to avoid jeopardizing
the continued existence of North Atlantic right whales.
Comment 25: One commenter opposed requiring weak links and Danforth
anchors at both ends of the spot sink gillnet fishery in southeastern
NC. As this fishery operates near or at the surf zone, the commenter
was concerned that the weak links would cause the net to break when it
is being dragged into calmer water, and a Danforth anchor would not
enable the fishermen to drift with their nets to calmer water. The
commenter thought these gear requirements should be exempted in the
area due to this unique fishery.
Response: The gear requirements state that mid-Atlantic gillnet
gear has to be anchored at each end of the net string with an anchor
that has the holding power of at least a 22-lb (10.0-kg) Danforth-style
anchor, not necessarily a Danforth anchor. However, fishers do not have
to use an anchor unless they return to port without their gear. NMFS
recommends that spot gillnet fishers explore different ways to anchor
their gear in this fishery. NMFS gear
[[Page 1310]]
specialists are available to consult with on these types of issues, but
some suggestions include using other anchors that do not become
entangled on the ocean bottom and are retrieved successfully from the
bottom, but have the same holding power of at least a 22-lb (10.0-kg)
Danforth-style anchor. In response to the comment on weak links, gear
research studies that involved pulling a string of nets in the Gulf of
Maine in up to 45 knots of wind in 100 fathoms of water and utilizing
1,100 lb (272.4 kg) weak links resulted in no failures. Thus, it is
unlikely that the weak links in the spot gillnets would break during
fishing operations. The NMFS Gear Research Team will continue to
investigate weak links and various anchoring systems.
Comment 26: One commenter opposed the 1,100-lb (272.4-kg) maximum
breaking strengths for the weak links and said that NMFS incorrectly
stated that the ALWTRT Mid-Atlantic recommended 1,100 lb (272.4 kg)
rather than 600 lb (272.4 kg). The full ALWTRT did not reach consensus
on this point as the New Jersey state representative and fishermen said
their fisheries were prosecuted similarly to the northeast, whereas
Virginia and North Carolina fishermen were willing to adopt a 600-lb
(272.4-kg) breaking strength. Representatives from environmental
organizations were concerned that humpback entanglements off North
Carolina and Virginia have appeared to increase, and scientists with
experience in whale disentanglement have indicated that humpback whales
do not appear to exert the same degree of force as right whales do to
break free of gear. The commenter recommended that in areas south of
New Jersey, NMFS should require gillnetters to install weak links with
a maximum breaking strength of 600 lb (272.4 kg) in buoy line and in
the center of the floatline on each net panel.
Response: NMFS has decided to require a breaking strength in Mid-
Atlantic gear similar to that required in northeast gillnet gear until
the gear research studies using load cells currently planned for the
mid-Atlantic are conducted. Such studies are scheduled to occur during
the winter of 2002 and a report will be provided at the next ALWTRT
meeting. The ALWTRT including its New Jersey representative, and its
Mid-Atlantic subgroup can discuss these results and come up with new
recommendations to NMFS, if deemed necessary. In response to concerns
about humpback whale entanglements off of North Carolina and Virginia,
NMFS will continue to work through the ALWTRT process to address
humpback whale entanglements in these areas. The BOs found jeopardy to
right whales, not humpbacks, and the recommended RPA is designed to
avoid jeopardy to right whales.
Southeast U.S. Restricted Area
Comment 27: One commenter supported the proposal to prohibit
straight sets of gillnet at night between November 15 and March 31 in
the southeast US unless the exemption under 50 CFR 229.32(f)(3)(iii),
which relates to shark gillnets, applies.
Response: NMFS will not be implementing regulations on straight
sets of gillnet in the Southeast U.S. restricted area at this time.
Although this requirement was contained in the proposed rule, NMFS
inadvertently omitted the analysis of its expected impacts from the EA/
RIR. As a result, NMFS did not provide adequate information for the
public to provide comment on the proposed provision. NMFS will provide
the public another opportunity to comment on this provision and the
necessary analytical documents as soon as possible.
Northern Inshore Lobster Waters and Lobster Take Reduction Technology
List
Comment 28: Four commenters opposed dropping the 7/16-in (1.11-cm)
diameter line option, two mentioned that most or all line removed from
whales has been larger than 7/16 in (1.11 cm). Three commenters
believed that dropping this option puts animals at greater risk because
the use of thicker rope will no longer be discouraged. One of these
commenters noted that the 7/16-in (1.11-cm) line should be replaced
with more specific breakaway features only after they are field tested
and found to be practical. The commenter added that many fishermen in
the Cape Cod area have reported that by using line that measures only
5/16 in (.79 cm) or 3/8 in (.95 cm) in diameter they are contributing
to risk reduction. These lines are comparatively lighter with lower
breaking strengths than lines used in the past. One of these commenters
also noted that with the elimination of 7/16 in (1.11 cm) or less
diameter line, fishers fishing single traps on the Outer Cape have less
options available for reducing the risk to whales because they have no
ground lines and a strong current makes 600-lb (272.4-kg) breakaway
buoys impractical (a lost buoy on a single trap means the trap is
lost). The commenter would like to encourage the members if the
Massachusetts's Lobstermen's Association to continue to use single pots
in state waters to avoid ground lines and continue to use thinner
ropes.
Response: The option of using buoy line of a diameter of 7/16 in
(1.11 cm) or less was previously adopted as part of the ALWTRP based
upon the breaking strength of 7/16 in (1.11 cm) line. This strategy
assumed that using a line with a consistent diameter would result in a
consistent breaking strength. However, experience has demonstrated that
the breaking strength of 7/16 in (1.11 cm) line can vary dramatically.
Weak links, or alternative techniques such as swivels, are expected to
provide a more reliable and consistent breaking strength rather than
using line diameter to predict breaking strength. NMFS does not believe
fishermen will go to larger line than what they are currently using due
to the costs involved in purchasing and incorporating the new line.
Also, removing this option from the Lobster Take Reduction Technology
List does not prevent a fisherman from continuing to use buoy line with
a diameter of 7/16 in (1.11 cm) or less.
Field testing conducted by the NMFS Gear Research Team indicates
that a 600-lb (272.4-kg) weak link will be feasible in this area. For
specifics and in regard to the comment on field tests, see response to
comment 16. The NMFS Gear Research Team will assist fishers in
determining whether alternative devices will work and provide them with
feedback on whether the breaking strength is in compliance with current
ALWTRP regulations. NMFS would like to reiterate that fishers can still
use 7/16 in (1.11 cm) or less diameter buoy line.
Comment 29: Four commenters noted that the use of 7/16 in (1.11 cm)
line should be immediately discontinued as an option on the Lobster
Take Reduction Technology List. One of these comments noted that since
February 2000 the ALWTRT has been questioning the conservation risk
reduction value of this option. Another agreed with NMFS that line
thickness is not an appropriate entanglement risk reduction tool
because line thickness has little bearing on breaking strength.
However, the commenter did not think that the unacceptable wear in weak
links should be a reason to delay the requirement as weak links could
be replaced as necessary, pending the development of longer-lived links
if that proves necessary. In addition, the commenter noted that other
options aside from weak links can be chosen from the list and NMFS did
not provide enough information on the prevalence of an unacceptable
wear in weak links.
Response: NMFS agrees that the 7/16-in (1.11-cm) or less diameter
buoy line option should be removed from the Lobster Take Reduction
Technology
[[Page 1311]]
List. NMFS will be removing the option from the list effective January
1, 2003. NMFS believes that this is justified based on concerns
expressed by some members of the ALWTRT Northeast sub-group that weak
links may not be standing up well to inshore conditions and may be
showing signs of abrasion and weakening with only a single season of
use. An ALWTRT member brought a weak link showing this type of wear to
the June 2001 ALWTRT meeting. NMFS believes that removing this option
January 1, 2003, will enable fishermen and gear specialists to address
this localized problem, and give fishermen time to incorporate an
option into their fishing gear. The NMFS Gear Research Team will be
available, if needed, to provide support in the development of
alternative methods to achieve the purpose of the weak link
requirement. NMFS will also conduct extensive outreach to fishing
communities and industry associations throughout New England to inform
inshore lobster fishermen of their ALWTRT requirements and encourage
them to begin developing improved weak links or choosing a different
option other than the 7/16 in (1.11 cm) or less diameter buoy line if
they do not already meet the Lobster Take Reduction Technology List
requirements. Those fishers who need to select another option will be
encouraged to do so as soon as possible.
Comment 30: In the proposed rule, NMFS combined two options on the
Lobster Take Reduction Technology List into one. The elimination of
floating rope on ground line and the elimination of floating rope at
the bottom of buoy lines are two options.
Response: NMFS agrees with the commenter that in the explanatory
text of the proposed rule, NMFS incorrectly stated that comprising all
buoy lines and ground lines with entirely sinking and/or neutrally
buoyant line is one option. It was NMFS' intent that these be two
options as indicated on page 49907 of the proposed rule (66 FR 49896,
October 1, 2001) under the Lobster Take Reduction Technology List
regulatory section where using entirely sinking and/or neutrally
buoyant line on all buoy lines is one option and using entirely sinking
and/or neutrally buoyant line on all ground lines is another option.
Comment 31: Three commenters supported the use of neutrally buoyant
buoy and ground lines as an option to the Lobster Take Reduction
Technology List, one noting that this should not be delayed until 2003.
Response: In response to the comment to not delay this option until
2003, NMFS notes that this option will go into effect in 2002 with this
final rule.
Gillnet Take Reduction Technology List
Comment 32: The 7/16-in (1.11-cm) line should be replaced with more
specific breakaway features only after they are field tested and found
to be practical. If NMFS removed this option fishermen may opt for
stronger lines. The commenter noted that many fishermen in the Cape Cod
area have reported that by using lines that measure only 5/16 in or 3/8
in in diameter they are contributing to risk reduction. These lines are
comparatively lighter with lower breaking strengths than lines used in
the past.
Response: Fishermen can still use 7/16 in (1.11 cm) line; however,
it can not be counted as an option from the Take Reduction Technology
List. NMFS will continue its gear research to test the breaking
strength of various lines and will continue to report these results to
the ALWTRT for consideration. Also see response to comment 28.
Comment 33: Two commenters supported the removal of the 7/16-in
(1.11-cm) or less line diameter from the technology list. However, one
of these commenters noted that NMFS should ensure that the effective
date for both gillnet and lobster fisheries is the same.
Response: Due to reported wear in the weak links in the Inshore
Lobster Waters Area, NMFS has delayed requirements for this area (see
response to comment 29).
Comment 34: Two commenters noted that the proposed rule indicated
that the ALWTRT did not recommend changes to gillnet fisheries in the
northeast. The ALWTRT did address such changes but was unable to reach
consensus on them. NMFS has put little effort into developing
innovative approaches to reducing risk from gillnet gear. If gillnet
gear is to be used, risk reduction modifications must be implemented.
These commenters also noted that there is a need to develop and
implement new gillnet gear modifications in mid-Atlantic coastal and
Northeast waters.
Response: NMFS is expanding gillnet gear modifications and
restrictions in this final rule, as well as in the forthcoming final
rules on SAM and DAM, which will reduce interactions between right
whales and gillnet gear, and reduce serious injury and mortality of
right whales due to entanglement in gillnet gear. The RPA in the June
14, 2001, BOs advised NMFS to, amongst other measures, expand
additional gillnet and lobster pot gear modifications to avoid
jeopardizing the continued existence of North Atlantic right whales.
Since the issuance of the BOs, NMFS has conducted additional analysis
of available data including that on the seasonal movement and
congregations of right whales, previous entanglements, and the nature
and position of gear in the water. Based on these analyses and our
knowledge of North Atlantic right whale behavior, NMFS has identified
gear modifications that prevent serious injury or mortality. These
additional gear modifications will be implemented with this final rule.
NMFS continued gear research and modifications and these efforts
include the RPA requirements to: (1) Host a workshop to investigate
options for gillnet (and lobster) modifications to prevent serious
injury from entangling right whales; (2) expanded research and testing
on eliminating floating line in the anchor and buoy lines of gillnet
gear (and lobster gear), and replacing it with neutrally buoyant line;
(3) continued research on weak link float lines in gillnet gear to
investigate the possibility of reducing the strength of gillnet float-
lines, a known problem area in the entanglement of large whales; and
(4) continued research on Mega-Float line in gillnets to eliminate
external plastic floats combined with properly placed weak links.
Additionally, NMFS will be conducting tests on how different types of
weak links react to different types of anchoring systems; to do this
NMFS will tow gillnets through the water to simulate a whale
entanglement. NMFS has also contracted with a company to develop rope
with uniform breaking strength to distribute to fishers for field
testing. Additional efforts NMFS has conducted include hiring an
outreach coordinator for the Southeast Region (similar to the position
already in place in the Northeast) to conduct outreach on the various
TRPs including the Atlantic Large Whale TRP, as well as to solicit gear
modification ideas from fishers. NMFS will continue to work with the
ALWTRT and seek input from the Gear Advisory Group (also see response
to comment 9) to identify additional management measures in the gillnet
fisheries.
Changes in the Final Rule From the Proposed Rule
NMFS proposed to require the installation of weak links with a
maximum breaking strength of 3,780 lb (1,714.3 kg) in offshore lobster
trap gear between the surface system (all surface buoys, the high
flyer, and associated lines) and the buoy line leading down to the
trawl. This proposed measure was the result of analysis conducted by
NMFS from a successful disentanglement of a 7-year-old male
[[Page 1312]]
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 (1,714.3 kg).
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. 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 fishery. Therefore, in Sec. 229.32, paragraph (c)(5)(ii)(B) of the
proposed rule is removed from the final rule.
NMFS also proposed that fishermen with gillnets in the Southeast
U.S. Restricted Area be prohibited from setting gillnets in straight
sets at night during the restricted period, unless they meet the
criteria for an exemption for shark gillnets that currently exists in
the regulations. Although this requirement was contained in the
proposed rule, NMFS inadvertently omitted the analysis of its expected
impacts from the EA/RIR. As a result, NMFS did not provide adequate
information for the public to provide comment on the proposed
provision. NMFS will provide the public another opportunity to comment
on this provision and the necessary analytical documents as soon as
possible. Consequently, NMFS is eliminating this measure from the final
rule by eliminating paragraph (f)(3)(iv) in Sec. 229.32 of the proposed
rule.
NMFS believes this final rule, in combination with the forthcoming
rules for SAM and DAM, are collectively sufficient to remove the
likelihood of jeopardy to the continued existence of North Atlantic
right whales from the Northeast multispecies, spiny dogfish and
monkfish gillnet, and American lobster fisheries as the Northeast
Multispecies, Spiny Dogfish, and Monkfish FMPs do not incorporate
southern U.S. waters. NMFS recently elevated Southeast Atlantic gillnet
fisheries to Category II in the Final List of Fisheries for 2001 (66 FR
42780, August 15, 2001) due to their occasional interaction with
bottlenose dolphins. The Southeast Atlantic gillnet fishery is separate
from the Category II Southeastern U.S. Atlantic shark gillnet fishery
presently regulated by the ALWTRP.
NMFS intends to consider implementation of this measure, after
public review of its environmental and economic impact analysis, as
soon as possible in 2002, but no later than November 1 when the whales
are expected to return to this area. This delay is not expected to
adversely affect North Atlantic right whales. Unlike the Northeast,
there is no direct evidence of interactions between right whales and
gillnets in the southeast region. However, the ALWTRT developed the
proposed modifications in Southeast waters as a precautionary measure
to address the potential rare occurrence of interaction and to offer
additional protection to right whales.
A technical change was also made to correct and clarify the intent
of the regulations. As proposed, lobster trap gear in the Southern
Nearshore Waters Area and Offshore Lobster Waters Area, and gillnet
gear in the Mid-Atlantic Coastal Waters are required to install weak
links at the buoy. However, the proposed regulations were not clear as
to the location of the installation of the weak links at the buoy.
Therefore, in Sec. 229.32, paragraph (c)(8)(ii) is revised to clarify
the location of the buoy line weak links within the Southern Nearshore
Lobster Waters Area, Offshore Lobster Waters Area, and Mid-Atlantic
Coastal Waters.
Classification
NMFS prepared a FRFA for this final rule. A copy of this analysis
is available from NMFS (see ADDRESSES). Four alternatives were
evaluated, including a status quo or No Action alternative, the
Preferred Alternative (PA), and two other alternatives. A summary of
that 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
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 consist
of the PA as well as the use of full weak links at the surface and
bottom of the buoy line and the reduction of floating line. The
operational impacts of the bottom weak link may be large for the
fishermen and result in negative impacts on the North Atlantic right
whale. The ability to haul back gear successfully while employing a
bottom weak link has not been developed and the potential for gear loss
is considered high at this point. Gear left on the bottom without
surface representation, such as buoy or high flyer, is difficult to
recover and becomes ghost gear which continues to fish and still
presents an entanglement risk to the North Atlantic right whale.
3. NMFS considered but rejected an alternative that would consist
of the PA as well as buoy line removal and the reduction of floating
line. Complete removal of buoy line and reduction of floating line are
recognized as the most risk averse technique for utilization of fixed
gear. However, one of the major drawbacks of this alternative is that
other fishermen will not know where gear has been set, and gear
conflicts with both fixed and mobile gear are likely to result in lost
and/or damaged gear possibly resulting in an increase in ghost gear.
Ghost gear is a potential entanglement source and source of negative
impacts on North Atlantic right whales. Thus, this option may only be
feasible in areas where other gear cannot be set or can be strictly
controlled.
4. The PA plan includes the expansion of gear modifications (e.g.
weak links) to the Southern Nearshore Waters lobster trap and Mid-
Atlantic Coastal Waters gillnet fisheries, and a reduction in the
maximum breaking strength for buoy weak links used in the Offshore
Lobster Waters Area. 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.
This action implements additional gear modifications to remove the
likelihood of jeopardy of North Atlantic right whales posed by the
continued operation of the multispecies, spiny
[[Page 1313]]
dogfish, monkfish and lobster fisheries as required in the RPA that
resulted from the BOs issued by NMFS in accordance with section 7 of
the ESA. The objective of the RPA is to eliminate mortality and serious
injuries of right whales, eliminate serious and prolonged right whale
entanglements, and significantly reduce the total number of right whale
entanglements in the multispecies, spiny dogfish, monkfish and lobster
fisheries.
NMFS has taken steps to minimize the significant economic impact on
small entities through this PA. The PA meets a portion of the RPA
designed to remove jeopardy, consistent with the requirements of the
ESA, while allowing fishing to continue and, therefore, reduce economic
impacts compared to fishery closures.
The small entities affected by this final rule are gillnet and
lobster trap fishermen. The geographic range of the gear modifications
will include the northern inshore area, southern nearshore area,
offshore area, and the Mid-Atlantic waters area. The potential sizes of
the fleets impacted are: the northern inshore fleet is potentially as
large as 5,982 vessels, the southern nearshore fleet is potentially as
large as 222 vessels, the offshore fleet is potentially as large as 172
vessels, and the Mid-Atlantic fleet is potentially as large as 625
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 final rule.
NMFS received only one public comment relating to the economic
impacts of this final rule. This comment was considered by NMFS before
it approved this final rule, and is characterized and responded to by
NMFS in the ``Comments and Responses'' section of the preamble to this
final rule, as comment/response number one. No changes to this final
rule were made as a result of the comment received.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
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.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
This final rule refers to a collection-of-information requirement
subject to the Paperwork Reduction Act, namely a gear marking
requirement, which has been previously approved by OMB under control
number 0648-0364. The public reporting burden for this requirement is
estimated to average .6 minutes per line. This estimate includes the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate, or any other aspect of this data collection, including
suggestions for reducing the burden, to NMFS and to OMB (see
ADDRESSES).
This final rule implements a portion of the RPA, which resulted
from ESA 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 final rule
implements a component of the RPA contained in the BOs issued by NMFS
on June 14, 2001. Therefore, no further section 7 consultation is
required.
This final rule contains policies with federalism implications that
were sufficient to warrant consultations and preparation of a
federalism summary impact statement 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.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Fisheries, Marine mammals,
Reporting and record keeping 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. 1371 et seq.
2. In Sec. 229.2, a definition of ``Neutrally buoyant line'' is
added in alphabetical order to read as follows:
Sec. 229.2 Definitions.
* * * * *
Neutrally buoyant line means line with a specific gravity near that
of sea water, so that the line neither sinks to the ocean floor nor
floats at the surface, but remains close to the bottom.
* * * * *
3. In Sec. 229.3, paragraph (k) is revised to read as follows:
Sec. 229.3 Prohibitions.
* * * * *
(k) It is prohibited to fish with gillnet gear in the areas and for
the times specified in Sec. 229.32(b)(2), (f)(1)(i), and (f)(1)(ii)
unless the gear complies with the closures, marking requirements,
modifications, and other restrictions specified in
Sec. 229.32(b)(3)(i), (b)(3)(ii), and (f)(2) through (f)(3)(iii).
* * * * *
4. Section 229.32 is amended by adding a note to the end of the
section; revising the heading of the introductory text of paragraph
(c)(5)(ii)(A); and revising paragraphs (c)(5)(ii)(A)(2), (c)(8)(ii),
(c)(9)(i), (c)(9)(iii), (c)(9)(iv), (d)(7), and (d)(8) to read as
follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
* * * * *
(c) * * *
(5) * * *
(ii) * * *
(A) Weak links on all buoy lines. * * *
* * * * *
(2) The breaking strength of these weak links may not exceed 2,000
lb (906.9 kg).
* * * * *
(8) * * *
(ii) Area-specific gear requirements for the restricted period--
(A) Restricted period. The restricted period for Southern Nearshore
Lobster Waters is year round unless the Assistant Administrator revises
this period in accordance with paragraph (g) of this section.
(B) Gear requirements. No person may fish with lobster trap gear in
the Southern Nearshore Lobster Waters Area during the restricted period
unless
[[Page 1314]]
that person's gear complies with the gear marking requirements
specified in paragraph (b) of this section, the universal lobster trap
gear requirements in paragraph (c)(1) of this section, and the
following gear requirements for this area, which the Assistant
Administrator may revise in accordance with paragraph (g) of this
section:
(1) Buoy Line Weak Links. All buoy lines must be attached to the
main buoy with a weak link placed as close to each individual buoy as
operationally feasible that meets the following specifications:
(i) The weak link must be chosen from the following list of
combinations approved by the NMFS gear research program: swivels,
plastic weak links, rope of appropriate diameter, hog rings, rope
stapled to a buoy stick, or other materials or devices approved in
writing by the Assistant Administrator.
(ii) The breaking strength of this weak link may not exceed 600 lb
(272.4 kg).
(iii) Weak links must be designed such that the bitter end of the
buoy line is clean and free of knots when the link breaks. Splices are
not considered to be knots for the purpose of this provision.
(2) [Reserved]
(9) * * *
(i) Through December 31, 2002, all buoy lines must be 7/16 inches
(1.11 cm) or less in diameter.
* * * * *
(iii) All buoy lines must be comprised entirely of sinking and/or
neutrally buoyant line.
(iv) All ground lines must be comprised entirely of sinking and/or
neutrally buoyant line.
* * * * *
(d) * * *
(7) Mid-Atlantic Coastal Waters Area--(i) Area. The Mid-Atlantic
Coastal Waters Area consists of all U.S. waters bounded by the line
defined by the following points: The southern shore of Long Island, NY,
at 72 deg. 30' W. long., then due south to 33 deg. 51' N. lat., thence
west to the North Carolina-South Carolina border, as defined in
Sec. 229.2.
(ii) Area-specific gear requirements. No person may fish with
anchored gillnet gear in the Mid-Atlantic Coastal Waters Area unless
that person's gear complies with the gear marking requirements
specified in paragraph (b) of this section, the universal anchored
gillnet gear requirements specified in paragraph (d)(1) of this
section, and the following area-specific requirements, which the
Assistant Administrator may revise in accordance with paragraph (g) of
this section:
(A) Buoy line weak links. All buoy lines must be attached to the
main buoy with a weak link placed as close to each individual buoy as
operationally feasible that meets the following specifications:
(1) The weak link must be chosen from the following list of
combinations approved by the NMFS gear research program: Swivels,
plastic weak links, rope of appropriate breaking strength, hog rings,
rope stapled to a buoy stick, or other materials or devices approved in
writing by the Assistant Administrator.
(2) The breaking strength of these weak links may not exceed 1,100
lb (498.8 kg).
(3) Weak links must be designed such that the bitter end of the
buoy line is clean and free of any knots when the link breaks. Splices
are not considered to be knots for the purposes of this provision.
(B) Net panel weak links. All net panels must contain weak links
that meet the following specifications:
(1) Weak links must be inserted in the center of the floatline of
each 50-fathom (300-ft or 91.4-m) net panel in a net string or every 25
fathoms for longer panels.
(2) The breaking strength of these weak links may not exceed 1,100
lb (498.8 kg).
(C) Tending/anchoring. All gillnets must return to port with the
vessel or be anchored at each end with an anchor capable of the holding
power of at least a 22-lb (10.0-kg) Danforth-style anchor.
(8) Gillnet Take Reduction Technology List. The following gear
characteristics comprise the Gillnet Take Reduction Technology List:
(i) All buoy lines are attached to the buoy line with a weak link
having a maximum breaking strength of up to 1,100 lb (498.8 kg). Weak
links may include swivels, plastic weak links, rope of appropriate
diameter, hog rings, rope stapled to a buoy stick, or other materials
or devices approved in writing by the Assistant Administrator.
(ii) Weak links with a breaking strength of up to 1,100 lb (498.8
kg) must be inserted in the center of the floatline (headrope) of each
50 fathom net panel or every 25 fathoms for longer panels.
(iii) All buoy lines must be comprised entirely of sinking and/or
neutrally buoyant line.
* * * * *
Note to Sec. 229.32: Additional regulations that affect fishing
with lobster trap gear have also been issued under authority of the
Atlantic Coastal Fisheries Cooperative Management Act in part 697 of
this title.
[FR Doc. 02-273 Filed 1-9-02; 8:45 am]
BILLING CODE 3510-22-P