Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations, 35894-35944 [05-11847]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 118 (Tuesday, June 21, 2005)]
[Proposed Rules]
[Pages 35894-35944]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11847]



[[Page 35893]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 229, 635, and 648



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

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / 
Proposed Rules

[[Page 35894]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 229, 635, and 648

[Docket No. 050127019-5019-01; I.D. 120304D]
RIN 0648-AS01


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) proposes to amend 
the regulations implementing the Atlantic Large Whale Take Reduction 
Plan (ALWTRP), to revise the management measures for reducing the 
incidental mortality and serious injury to the North Atlantic right 
whale (Eubalaena glacialis), humpback whale (Megaptera novaeangliae), 
and fin whale (Balaenoptera physalus) in commercial fisheries to meet 
the goals of the Marine Mammal Protection Act (MMPA) and the Endangered 
Species Act (ESA). NMFS proposes additional regulations for the 
fisheries currently covered by the ALWTRP, which include the Northeast 
sink gillnet, Northeast/Mid-Atlantic American lobster trap/pot, U.S. 
Mid-Atlantic coastal gillnet, Southeast Atlantic gillnet, and 
Southeastern U.S. Atlantic shark gillnet fisheries. NMFS also proposes 
to regulate the following fisheries from the MMPA's List of Fisheries 
for the first time under the ALWTRP: Northeast anchored float gillnet, 
Northeast drift gillnet, Atlantic blue crab, and Atlantic mixed species 
trap/pot fisheries targeting crab (red, Jonah, and rock), hagfish, 
finfish (black sea bass, scup, tautog, cod, haddock, pollock, redfish 
(ocean perch), and white hake), conch/whelk, and shrimp.

DATES: Comments on the proposed rule must be received by 5 p.m. EST on 
July 21, 2005.

ADDRESSES: Comments may be submitted on this proposed rule, identified 
by RIN 0648-AS01, by any one of the following methods:
    (1) NMFS/Northeast Region Web site: https://www.nero.noaa.gov/nero/
regs/com. Follow the instructions on the Web site for submitting 
comments.
    (2) Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instruction on the Web site for submitting comments.
    (3) E-mail: whalerule.comments@noaa.gov. Please include the RIN 
0648-AS01 in the subject line of the message.
    (4) Mail: Mary Colligan, Assistant Regional Administrator for 
Protected Resources, NMFS, Northeast Region, 1 Blackburn Dr., 
Gloucester, MA 01930, ATTN: ALWTRP Proposed Rule.
    (5) Facsimile (fax) to: 978-281-9394, ATTN: ALWTRP Proposed Rule.
    Copies of the Draft Environmental Impact Statement/Regulatory 
Impact Review for this action can be obtained from the ALWTRP Web site 
listed under the Electronic Access portion of this document. Atlantic 
Large Whale Take Reduction Team (ALWTRT) meeting summaries, and 
progress reports on implementation of the ALWTRP may be obtained by 
writing Diane Borggaard, NMFS, Northeast Region, 1 Blackburn Dr., 
Gloucester, MA 01930 or Juan Levesque, NMFS, Southeast Region, 9721 
Executive Center Dr., St. Petersburg, FL 33702-2432. For additional 
addresses and Web sites for document availability see SUPPLEMENTARY 
INFORMATION.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS, Northeast 
Region, 978-281-9300 Ext. 6503, diane.borggaard@noaa.gov; Kristy Long, 
NMFS, Office of Protected Resources, 301-713-2322, 
kristy.long@noaa.gov; or Barb Zoodsma, NMFS, Southeast Region, 904-321-
2806, barb.zoodsma@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several of the background documents for the ALWTRP and the take 
reduction planning process can be downloaded from the ALWTRP Web site 
at https://www.nero.noaa.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 https://www.nefsc.noaa.gov/psb/assesspdfs.htm. In 
addition, copies of the documents entitled ``Defining Triggers for 
Temporary Area Closures to Protect Right Whales from Entanglements: 
Issues and Options'' and ``Identification of Seasonal Area Management 
Zones for North Atlantic Right Whale Conservation'' are available by 
writing to Diane Borggaard, NMFS, Northeast Region, 1 Blackburn Dr., 
Gloucester, MA 01930 or can be downloaded from the ALWTRP Web site at 
https://www.nero.noaa.gov/whaletrp/. The complete text of the 
regulations implementing the ALWTRP can be found either in the Code of 
Federal Regulations (CFR) at 50 CFR 229.32 or downloaded from the Web 
site, along with a guide to the regulations.

Background

    The ALWTRP was originally developed pursuant to section 118 of the 
Marine Mammal Protection Act (MMPA) to reduce the level of serious 
injury and mortality of three strategic stocks of large whales (fin, 
humpback, and North Atlantic right) interacting with Category I and II 
fisheries (i.e., those with frequent or occasional serious injury or 
mortality of marine mammals). The MMPA defines a strategic stock of 
marine mammals as a stock: (1) For which the level of direct human-
caused mortality exceeds the Potential Biological Removal (PBR) level; 
(2) which, based on the best available scientific information, is 
declining and is likely to be listed as a threatened species under the 
ESA within the foreseeable future; or (3) which is listed as a 
threatened or endangered species under the ESA, or as depleted under 
the MMPA (16 U.S.C. 1362(19)). Specific Category I and II fisheries 
under the original ALWTRP included the New England Multispecies sink 
gillnet (now called Northeast sink gillnet), Gulf of Maine/U.S. Mid-
Atlantic lobster trap/pot (now called Northeast/Mid-Atlantic American 
lobster trap/pot), U.S. Mid-Atlantic coastal gillnet, and Southeastern 
U.S. Atlantic shark gillnet fisheries. The measures identified in the 
ALWTRP were also intended to benefit minke whales (Balaenoptera 
acutorostrata), which are not strategic, but are known to be taken 
incidentally in gillnet and American lobster trap/pot fisheries.
    In general, the ALWTRP has consisted of a combination of regulatory 
and non-regulatory measures, including broad gear modifications, time-
area closures, expanded disentanglement efforts, extensive outreach 
efforts in key areas, gear research, and an expanded right whale 
surveillance program to supplement the Mandatory Ship Reporting System. 
The background for the take reduction planning process and initial 
development of the ALWTRP is provided in the preambles to the proposed 
(62 FR 16519, April 7, 1997), interim final (62 FR 39157, July 22, 
1997), and final (64 FR 7529, February 16, 1999) rules that implemented 
the original plan.
    Since its implementation in 1997, the ALWTRP has been modified 
several

[[Page 35895]]

times to reduce the serious injury and mortality of large whales in 
gillnet and American lobster trap/pot gear. An interim final rule 
published in December 2000 (65 FR 80368, December 21, 2000) and a final 
rule in January 2002 (67 FR 1300, January 10, 2002; 67 FR 15493, April 
2, 2002), contain background information on changes to the ALWTRP that 
implemented additional gear modifications. In 2002, a final rule added 
the Southeast Atlantic gillnet fishery to those fisheries regulated by 
the ALWTRP, restricting the use of straight set gillnets at night in 
the Southeast U.S. Restricted Area (67 FR 59471, September 23, 2002; 68 
FR 19464, April 21, 2003). An interim final rule implemented a Seasonal 
Area Management (SAM) program (67 FR 1142, January 9, 2002; 67 FR 
65722, October 28, 2002), which identified two management areas based 
on the annual predictable presence of right whales and required gear 
modifications for lobster trap/pot and anchored gillnet gear in these 
areas on a seasonal basis. Additionally, in 2002, a final rule 
implemented a Dynamic Area Management (DAM) program (67 FR 1133, 
January 9, 2002; 67 FR 65722, October 28, 2002) to protect unexpected 
aggregations of right whales that met appropriate criteria by 
temporarily restricting lobster trap/pot and anchored gillnet fishing 
in a designated area. A final rule published in August 2003 (68 FR 
10195, March 4, 2003; 68 FR 51195, August 26, 2003) identified gear 
modifications determined to sufficiently reduce the risk of 
entanglement to right whales, and, therefore, deemed acceptable for 
fishing in DAM zones. Copies of the above documents and their 
supporting Environmental Assessments are available from the NMFS, 
Northeast Region (see ADDRESSES).

ESA Section 7 Consultation and the ALWTRP

    As described above, the ALWTRP was developed under section 118 of 
the MMPA and subsequently modified to comply with the purposes and 
policies of the MMPA. However, the three whale species directly 
protected by the ALWTRP (fin, humpback, and North Atlantic right) are 
also listed under the Endangered Species Act (ESA)(16 U.S.C. 1531 et 
seq.). In addition, many of the fisheries affected by the ALWTRP are 
subject to interagency consultation under section 7 of the ESA since 
the fisheries occur (at least in part) in Federal waters and are 
federally managed. These include the American lobster, black sea bass, 
and deep-sea red crab trap/pot fisheries; and the Northeast 
multispecies, monkfish, spiny dogfish, bluefish, southeastern U.S. 
Atlantic shark, and southeast Atlantic coastal pelagic gillnet 
fisheries.
    Section 7 of the ESA requires Federal agencies to ensure that their 
actions (e.g., implementation of fishery management measures) do not 
jeopardize the continued existence of ESA-listed species. The process 
for determining whether a Federal agency action will jeopardize any 
ESA-listed species is referred to as ``section 7 consultation.'' In 
1996, NMFS completed section 7 consultations for the American lobster 
trap/pot fishery and the Northeast multispecies gillnet fishery and 
concluded that the operation of these fisheries would jeopardize the 
continued existence of North Atlantic right whales as a result of 
serious injuries and mortalities occurring within lobster trap/pot and 
multispecies sink gillnet gear. NMFS also concluded that the new ALWTRP 
measures would modify these fisheries in such a way that jeopardy would 
be avoided. NMFS, therefore, accepted the ALWTRP measures as a 
reasonable and prudent alternative (RPA) to avoid jeopardy to right 
whales from these two fisheries.
    Similarly, following section 7 consultation on the Monkfish Fishery 
Management Plan (FMP) and Spiny Dogfish FMP in 1998 and 1999, 
respectively, NMFS concluded that the existing ALWTRP measures would 
avoid the likelihood that the gillnet component of these fisheries 
would jeopardize the continued existence of North Atlantic right 
whales.
    In 2000, NMFS reinitiated section 7 consultation for the Federal 
lobster, Northeast multispecies, monkfish, and spiny dogfish fisheries 
after receiving new information that indicated right whale population 
status was declining (Caswell et al., 1999), whale entanglements 
resulting in serious injuries were still occurring, and a recent right 
whale death resulted from entanglement in gillnet gear. Section 7 
consultation for each of the four fisheries was completed on June 14, 
2001, and concluded that the existing ALWTRP measures were not 
sufficient to remove the likelihood of jeopardy for North Atlantic 
right whales. A new RPA was developed for the four fisheries and 
included SAM, DAM, and additional gear modifications. These measures 
were implemented through rulemaking as part of the ALWTRP. The RPA also 
included monitoring criteria (a non-regulatory measure) to help assess 
the effectiveness of the RPA.
    In 2002, eight right whales were observed entangled after 
implementation of the RPA measures. One of the eight, a female right 
whale born in 2000 (RW 3107), had line with an attached buoy 
wrapped around and cutting into her tail stock. Several disentanglement 
attempts were made and she was subsequently freed of the gear. The 
recovered gear was examined to obtain further information on the 
entanglement event. NMFS could not positively identify the fishery or 
owner of the gear. However, based on the examination, NMFS concluded 
that the gear was consistent with that used in the inshore lobster trap 
fishery (Whittingham et al., 2003). [On July 30, 2003, NOAA Fisheries 
gear specialist clarified that the term ``inshore lobster trap 
fishery'' as used in the draft 2002 Large Whale Entanglement Report 
refers to U.S. waters that include northern inshore (certain state 
waters), northern nearshore, and southern nearshore waters as they are 
defined under the ALWTRP.] This conclusion was based on the 
configuration of the recovered gear, including the presence of a weak 
link with a breaking strength of no more than 600 lb (272.4 kg). Six 
weeks after the disentanglement, her carcass washed ashore on 
Nantucket, MA.
    Although the exact cause of death could not be determined, the 
necropsy of RW 3107 did reveal substantial tissue damage to 
the tail stock in the area where the entangling gear had been present. 
A draft necropsy report describes the most likely cause of death (based 
on the available evidence) as an infection or other debilitating 
condition caused by the injuries to the tail stock.
    NMFS reviewed the necropsy report and considered whether it 
provided sufficient information to show, based on RPA monitoring 
criteria, that the RPA was not effective at avoiding the likelihood of 
jeopardy to right whales. On June 13, 2003, NMFS received confirmation 
from the Northeast Fisheries Science Center (NEFSC) that the Atlantic 
Scientific Review Group (ASRG) concurred with the NEFSC finding that 
the death of RW 3107 was an entanglement related mortality. 
[The ASRG is 1 of 3 independent regional scientific review groups 
composed of individuals, in part, with expertise in marine mammal 
biology and ecology, population dynamics and modeling, and commercial 
fishing technology and practices. The review groups were established as 
required by section 117 of the MMPA, and serve as advisors to NOAA 
Fisheries and the FWS with respect to marine mammal issues.]
    There is no way to determine exactly when and where RW 
3107 became entangled. She was last seen prior to the 
entanglement in December 2001 off of

[[Page 35896]]

South Carolina. She was next seen (entangled) in July 2002 in Canadian 
waters off of Nova Scotia. Although RW 3107 could have become 
entangled in Canadian waters, NMFS considers this unlikely since 
Canadian trap fishers (whether for lobster, crab, or fish) are not 
required to use a 600-lb (272.4-kg) weak link. The more likely scenario 
is that RW 3107 became entangled in U.S. waters. While it is 
possible that she became entangled prior to when the RPA measures went 
into effect, this is somewhat irrelevant since the weak link on the 
entangling gear was the same breaking strength as is currently required 
by the RPA for certain lobster fishing areas.
    In summary, while the gear recovered from RW 3107 cannot 
be identified as originating from the U.S. lobster fishery, NMFS has 
determined that the gear is consistent with gear approved for use in 
the lobster fishery that is conducted in portions of the U.S. Exclusive 
Economic Zone (EEZ). In addition, NMFS has been advised that RW 
3107 died as a result of injuries caused by the entanglement. 
Therefore, based on the RPA monitoring criteria from the June 14, 2001, 
biological opinion, NMFS concluded that the entanglement event for RW 
3107 provides evidence that the RPA described in the June 14, 
2001, Opinion is not effective at avoiding the likelihood of 
jeopardizing the continued existence of right whales by the lobster 
trap fishery. As required, NMFS has reinitiated consultation to 
reexamine the effects of the fishery, as modified by the existing 
ALWTRP and RPA measures, on right whales. This consultation is in 
progress.
    NMFS reinitiated section 7 consultation on the Summer Flounder, 
Scup, Black Sea Bass FMP following new information on the applicability 
of the ALWTRP measures for federally-permitted black sea bass fishermen 
using pot/trap gear. This consultation is also in progress.
    In the Southeast Region, NMFS has conducted section 7 consultations 
on the following fishery management plans: Coastal Migratory Pelagics; 
Swordfish, Tuna, Shark, and Billfish; and Snapper-Grouper. In 1992, the 
section 7 consultation for Amendment 6 to the Coastal Migratory 
Pelagics FMP concluded that the proposed actions to regulate pelagic 
hook-and-line and gillnet fishing gear were not likely to adversely 
affect ESA-listed species, but that the fishing activities conducted 
under the authority of the FMP may affect, but were not likely to 
jeopardize, the continued existence of listed sea turtles. Subsequent 
consultations conducted on additional amendments to the Coastal 
Migratory Pelagics FMP and emergency actions have been informal. These 
informal consultations concluded that the regulatory changes resulting 
from these additional amendments would not alter the findings presented 
in the 1992 biological opinion prepared for Amendment 6 to the FMP. In 
addition, NMFS does not have data indicating that the level of take for 
sea turtles, as specified in the 1992 incidental take statement, has 
been exceeded, which would require reinitiating formal consultation. 
However, due to the listing of new species (e.g., smalltooth sawfish) 
on the ESA and designation of critical habitat for right whales in the 
southeast U.S. since 1992, NMFS believes reinitiating formal 
consultation is warranted and has begun this process.
    In 2003, NMFS conducted a section 7 consultation for the Draft 
Amendment 1 to the Highly Migratory Species FMP. The section 7 
consultation concluded that, based on the lack of reported interactions 
between large whales and the Southeast U.S. Atlantic shark gillnet 
fishery since the implementation of the ALWTRP and the RPA identified 
in the May 1997 biological opinion, the proposed action may affect, but 
is not likely to jeopardize the continued existence of right, humpback, 
and fin whales.
    Since 1989, NMFS has conducted numerous section 7 consultations on 
the Snapper-Grouper FMP and its subsequent amendments. These 
consultations have all concluded that the trap/pot gear used by the 
fisheries managed under the FMP, such as black sea bass pots, were not 
likely to jeopardize the continued existence of endangered large whales 
or result in the destruction or adverse modification of critical 
habitat. In 2000, a section 7 consultation for Amendment 12 to the FMP 
came to the same conclusion as all the prior consultations, however, 
NMFS expressed that interactions between hook-and-line and pot gear 
used by this fishery and endangered marine mammals and sea turtles may 
warrant further consideration in future amendments. Therefore, NMFS is 
presently in the process of re-initiating formal consultation on the 
Snapper-Grouper FMP.

Take Reduction Team Activities During 2003 and 2004

    Under the 1994 Amendments to the MMPA, the immediate goal of a take 
reduction plan (TRP) is to reduce the incidental take of strategic 
stocks of marine mammals in commercial fishing operations to below PBR 
within 6 months of implementing a TRP. The long-term goal is to reduce 
incidental takes to insignificant levels approaching a zero mortality 
and serious injury rate (69 FR 43338, July 20, 2004) within 5 years of 
implementing a TRP. For right whales, these two goals are essentially 
the same since the PBR level is zero. Under the ESA, NMFS is obligated 
to use its authorities to conserve endangered and threatened species 
and ensure that actions authorized by the agency, such as fishing in 
Federal waters, are not likely to jeopardize the continued existence of 
any endangered or threatened species, including right whales.
    NMFS determined that additional modifications to the ALWTRP were 
warranted based on the continued entanglement of large whales in 
commercial fishing gear since the 2002 ALWTRP regulations became 
effective. Therefore, NMFS reconvened the ALWTRT from April 28-30, 
2003, to help evaluate the ALWTRP and discuss additional modifications 
necessary to meet the goals of the MMPA and ESA. NMFS asked the ALWTRT 
to consider some preliminary options provided in advance of the 
meeting, as well as develop additional options for addressing 
incidental interactions between commercial fisheries and large whales. 
Particular emphasis was placed on those options designed to reduce the 
potential for entanglements and minimize adverse impacts if 
entanglements occur.
    Following the April 2003 meeting, the ALWTRT met in separate 
subgroups over the next 2 months to further discuss and refine the 
proposals developed at the April meeting. These ALWTRT meetings 
included a ``Northeast Inshore Lobster Trap/Pot'' subgroup that met on 
May 19, 2003; an ``Offshore Trap/Pot'' subgroup that met on June 17, 
2003; a ``Southeast/Mid-Atlantic'' subgroup that met on June 23, 2003; 
and a ``Northeast Gillnet'' subgroup met on June 24, 2003. All ALWTRT 
meetings, including subgroup meetings, were open to the public.
    Subsequently, on June 30, 2003, NMFS published a Notice of Intent 
(NOI) in the Federal Register to announce the agency's intent to 
prepare an Environmental Impact Statement (EIS) that would analyze the 
impacts of alternatives for amending the ALWTRP (68 FR 38676). The 2003 
NOI expanded the scope of analysis from an NOI previously published in 
2001 (66 FR 50390, October 3, 2001), which was issued when NMFS was 
planning to prepare an EIS to analyze the impacts of alternatives under 
consideration to finalize the SAM program. In the 2003 NOI, NMFS 
announced several public

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scoping meetings along the east coast to solicit comments on the range 
of issues to be considered during the preparation of the EIS. Proposals 
from the April 2003 ALWTRT meeting and subsequent subgroup meetings 
were used to develop an issues and options document, which NMFS made 
available to the public during the scoping process. The ALWTRT had 
agreed on two overriding principles for reducing the risk of 
interactions between large whales and commercial fisheries; these 
principles were included in the scoping document. These include the 
following: (1) Reducing profiles of all groundlines to minimize risk of 
entanglement and (2) reducing the risk of entanglement associated with 
vertical lines.
    The document also described the major issues, current management 
and legal requirements, and potential management measures (including 
measures already in effect) to address fisheries that may frequently or 
occasionally interact with large whales. During the summer of 2003, 
NMFS conducted six public scoping meetings along the east coast.
    The full ALWTRT met again February 3-4, 2004. NMFS updated team 
members and interested parties on recent whale conservation activities 
and research, revisited the ALWTRP principles, and discussed the 
upcoming rulemaking process, among other issues. At this meeting, 
similar to the 2003 ALWTRT meeting, much of the discussions focused on 
ways to reduce the entanglement risk associated with groundlines. To 
date, the ALWTRT meetings and the scoping meetings associated with the 
draft EIS (DEIS) process have yielded little from which NMFS could 
propose effective and comprehensive management measures designed to 
address the vertical line issue. In fact, at the 2004 ALWTRT meeting, 
team members highlighted the need for further biological and gear 
research to develop appropriate management measures for reducing the 
risk associated with vertical lines. As a result, NMFS is outlining a 
strategy to reduce interactions with groundlines in this proposed rule, 
along with some measures to address vertical lines, and plans to 
further address the risk associated with vertical lines through future 
rulemaking.

Reducing the Risk of Entanglement Associated With Groundlines

    Floating groundline is a source of entanglement for large whales. 
Underwater video recording of typical trap/pot gear with floating 
groundline between traps revealed that the line often forms large loops 
in the water column (an average of 8-18 feet (2.44-5.49 meters) above 
the bottom) between traps (McKiernan et al., 2002). This slack in the 
floating line presents an entanglement risk to large whales because 
they often use the entire water column when foraging. For example, 
during feeding activities in Cape Cod Bay, three right whales tagged by 
multi-sensor telemetry units spent up to 31 percent of their time in 
the bottom third of the water column. During non-feeding activities, 
whale use in this portion of the water column increased up to 40 
percent (Wiley & Goodyear, 1998).
    One method proposed at the April 2003 ALWTRT meeting for reducing 
the groundline entanglement risk centered on lowering the profile of 
the line to a pre-determined level, which would remove it from the mid- 
and upper portions of the water column. However, at the February 2004 
ALWTRT meeting, a group of large whale researchers proposed that 
lowering the profile of groundlines to within a few feet of the bottom 
may not be effective at reducing the risk of large whale entanglements 
in some areas, particularly areas known to support foraging 
aggregations of highly endangered right whales. They explained that 
many of the most serious right whales entanglements involve the head 
and mouth. These head and mouth entanglements presumably occur during 
open-mouth feeding activities that may be correlated to a dense layer 
of zooplankton near the bottom of the seafloor. Therefore, the ALWTRT 
recommended using sinking or neutrally buoyant groundline in these 
areas, which would bring groundlines down to the seafloor.
    In light of this information, NMFS is unable to support using 
``low-profile'' groundline at this time. Further research and analysis 
is needed on whether lowering the profile of groundline to depths other 
than the ocean bottom reduces the potential for large whale 
entanglement in certain areas. Additionally, NMFS must determine the 
appropriate depth to which the groundline profile could be reduced. 
Specifically, further information and analysis are needed on prey 
distribution, large whale distribution and behavior, and methods for 
reducing the profile of groundline. NMFS would need to define ``Low-
profile'' line in such a way that it is enforceable, is operationally 
feasible for fishermen, and reduces the risk of entanglement. 
Presently, NMFS and others are researching all of these issues. NMFS 
may consider ``low-profile'' groundline in the future. Through this 
proposed rule, NMFS is soliciting comments and information on any of 
the issues noted above that are related to ``low profile'' groundline.

Reducing the Risk of Entanglement Associated With Vertical Lines

    Although this proposed rule contains alternatives that would 
require fishermen to convert groundlines from floating line to sinking 
line and provides a plan for addressing vertical lines in the future, 
NMFS is proposing a staged approach to the implementation of gear 
modifications. Through this proposed rule, groundline modifications 
would be implemented and vertical line modifications would follow once 
sufficient gear research is conducted. NMFS developed this approach 
jointly with the ALWTRT. The ALWTRT agreed at the April 2003 meeting 
that NMFS should reduce the risk of entanglement associated with 
vertical lines as well as reduce the profile of groundline. This is 
supported by Johnson et al. (2005), which concluded that any line 
rising into the water column presents an entanglement risk to large 
whales; although it is difficult to compare the relative risks 
associated with different gear parts (e.g., vertical lines versus 
groundlines). As mentioned previously, most ALWTRT members proposed 
that, at this time, NMFS should only consider management options to 
address groundlines and should address vertical lines in future 
rulemaking actions. Currently, neither the ALWTRT nor NMFS is able to 
identify a viable option for further reducing the risk associated with 
vertical lines. Therefore, NMFS believes that additional research and 
discussions with the ALWTRT are needed to address this issue.
    A better scientific understanding about the nature of 
entanglements, specifically the gear part involved (e.g., vertical 
line), would help NMFS develop better management programs and reduce 
the serious injury and mortality of large whales due to incidental 
interactions with commercial fisheries. Therefore, NMFS is also 
proposing in this rule to expand the gear marking requirements for 
vertical lines, which would help provide information about the nature 
of the gear involved in large whale entanglements. This information 
would also provide valuable insight concerning where, when, and how the 
entangling gear was set.
    Research into reducing the risk associated with vertical line is 
currently focusing on the profiles of vertical line with different buoy 
line configurations (e.g., sinking/neutrally buoyant vs. 
polypropylene), as well as other

[[Page 35898]]

modifications (e.g., requiring a minimum number of traps per trawl in 
certain areas). NMFS and others are also investigating how whales 
utilize the water column, including foraging ecology and diving 
behavior, which will help determine the appropriate mitigation 
strategies for reducing entanglement risk from vertical lines.
    As noted above, the alternatives considered in this proposed rule 
focus primarily on reducing risks associated with groundlines. However, 
until new vertical line gear modifications are developed, NMFS is 
responding to the vertical line issue through such measures as 
proposing expanded gear marking, reducing the breaking strength of weak 
links, regulating additional fisheries under the ALWTRP, and 
considering two buoy lines allowed per trawl or string. In the latter 
case, NMFS found that requiring the use of one buoy line may encourage 
fishermen to split trawls or strings, thus increasing the number of 
vertical lines in the water column. In addition, requiring one buoy 
line may increase the risk of gear loss, thereby increasing the 
entanglement risks associated with ``ghost gear'' or fishing gear left 
untended or lost that continues to fish. Therefore, this would not be 
an effective broad-based measure to implement.
    In light of the ongoing research on the risk of entanglement in 
vertical lines and the lack of a viable management option for 
addressing the issue at this time, NMFS is proposing the use of sinking 
and/or neutrally buoyant groundline to reduce the serious injury and 
mortality from incidental interactions between large whales and 
commercial fishing gear. However, through this action, NMFS is 
soliciting comments and information on any of these issues discussed 
above that are also related to vertical lines.

Preferred Alternatives

    As a result of public input provided through the DEIS scoping 
process, NMFS developed six alternatives, including a ``No Action'' or 
status quo alternative, to modify the ALWTRP. All six of these 
alternatives are described and analyzed in detail in the DEIS prepared 
to accompany this proposed rule (NMFS, 2004). Of the six alternatives 
considered, NMFS has identified two Preferred Alternatives 
(Alternatives 3 and 6 in the DEIS) for amending the ALWTRP, which are 
described below. Although NMFS has identified six alternatives, two of 
which are preferred, NMFS is seeking comment on all the alternatives. 
Based on comments received, NMFS proposes to implement one alternative 
in the final rule.
    The two Preferred Alternatives include the following: Expanding the 
geographic and temporal requirements of the ALWTRP; broad-based gear 
modifications such as reducing the profile of groundline and marking 
vertical lines; applying ALWTRP regulations to similar gillnet and 
trap/pot gear not currently regulated; and clarifying existing 
regulations so the intended effect is more understandable. Although 
NMFS did not receive consensus (i.e., unanimity) from the ALWTRT on the 
specific amendments to the ALWTRP, the preferred alternatives analyzed 
in the DEIS and proposed in this document are based on proposals 
presented by the ALWTRT and the general public during both ALWTRT and 
DEIS scoping meetings.

Alternative Three (Preferred)

Changes Proposed for the Atlantic Large Whale Take Reduction Plan for 
Boundaries and Seasons
    The dataset used in the analyses to determine the proposed 
boundaries and seasons for ALWTRP gear modifications was drawn from the 
December 2003 version of the North Atlantic Right Whale (NARW) Sighting 
Database curated by the University of Rhode Island (URI). This dataset 
includes all large whale sightings collected during all right whale 
surveys, totaling 21,977 right, 4,414 humpback, and 8,098 fin whale 
sighting records from the 18th century through 2003.
    These sighting records have documented the presence of all three 
species as far offshore as the eastern edge of the EEZ. In addition, 
given the limited amount of offshore survey effort, it is almost 
certain that there are more large whales in this area than are recorded 
in the database. Therefore, this preferred alternative would extend the 
ALWTRP gear modifications for regulated areas of the east coast out to 
the eastern edge of the EEZ. NMFS believes that expanding the waters 
regulated under the ALWTRP would protect large whales where they have 
been historically sighted and are expected to occur. Moreover, this 
proposed expansion would make the ALWTRP more consistent with the 
waters regulated under Fishery Management Plans (FMPs), which manage 
fisheries out to the eastern edge of the EEZ.
    As indicated by the dataset, right, humpback, and fin whale 
distributions have a strong spatial and temporal aspect; therefore, 
this preferred alternative identifies these spatial and temporal 
changes. NMFS has determined that the boundaries proposed for requiring 
gear modifications year-round in the northeast are supported by the 
sightings data obtained from the NARW Sightings Database, which 
indicates that right, humpback, and fin whales are commonly observed in 
all seasons. Therefore, this preferred alternative would require broad-
based gear modifications on a year-round basis from Maine to the Rhode 
Island/Connecticut border (41[deg]18.2' N. and 71[deg]51.5' W.; Watch 
Hill, RI), south to 40[deg]00' N., and east to the eastern edge of the 
EEZ.
    In the Mid-Atlantic, right and humpback whales can be found year-
round, but according to the NARW Sightings Database, sightings 
primarily occur between September and May. Fin whales are only present 
in the Mid-Atlantic north of Cape Hatteras in the summer. Therefore, in 
this preferred alternative, NMFS proposes to require gear modifications 
in these waters on a seasonal basis, from September to May, when more 
sightings are reported and the risk of entanglement with commercial 
fishing gear is greater. Under this preferred alternative, a line drawn 
from the Rhode Island/Connecticut border, south to 40[deg]00' N., and 
east to the eastern edge of the EEZ, would serve as the northern 
boundary for seasonal gear modifications in the Mid-Atlantic and the 
South Carolina/Georgia border east to the eastern edge of the EEZ would 
serve as the southern boundary. In addition, the southern boundary 
would separate Mid-Atlantic waters from the right whale calving grounds 
and critical habitat area in the southeast.
    During the winter months (November to April), right whales are most 
often sighted south of the South Carolina/Georgia border. Humpback 
whales are also reported in southeast coastal waters during this time 
of year. Stranding data suggest that fin whale calving may occur along 
the latitudes of the Mid-Atlantic; however, it is unknown where 
calving, mating, and wintering for most of the population takes place 
(Hain et al., 1993). In this preferred alternative, NMFS is proposing 
seasonal gear modifications from November 15 to April 15 for all ALWTRP 
regulated fisheries between the South Carolina/Georgia border and 
29[deg]00' N. based on this information in the Southeast Region. From 
December 1 to March 31, gear modifications would be required for trap/
pot and Southeast Atlantic gillnet fisheries between 29[deg]00' N. and 
27[deg]51' N., and for the Southeastern U.S. Atlantic shark gillnet 
fishery between

[[Page 35899]]

29[deg]00' N. and 26[deg]46.5' N. NMFS considers the proposed southern 
boundaries appropriate based on the NARW Sighting Database, which 
indicates that right whales are rarely sighted south of 29[deg]00' N. 
from November 1 to November 15 (n=1) or from April 1 to 15 (n=3). NMFS 
will continue to monitor from 27[deg]51' N. to 26[deg]46.5' N. and 
south of this area in the event that sightings data warrant the 
expansion of management areas.
Changes Proposed for the Atlantic Large Whale Take Reduction Plan for 
Lobster Trap/Pot Gear
    Northern Inshore State and Nearshore Trap/Pot Waters, Cape Cod Bay 
Restricted Area (May 16-December 31), Stellwagen Bank/Jeffreys Ledge 
Restricted Area, and Great South Channel Restricted Area (Nearshore 
Portion)--The current regulations for Northern Nearshore Trap/Pot 
Waters, Stellwagen Bank/Jeffreys Ledge Restricted Area, and the Federal 
portion of the Cape Cod Bay Restricted Area (May 16-December 31) 
require one buoy line on trawls of 5 or fewer traps. However, NMFS has 
received reports that the current requirement sometimes results in 
fishermen splitting their trawls and fishing a greater number of 
smaller trawls, which increases the number of buoy lines in the water 
if the majority of fishermen are engaging in this practice. Therefore, 
for these ALWTRP areas only, this preferred alternative would allow 
five-trap trawls to have two buoy lines. Under this preferred 
alternative, NMFS would require the use of only one buoy line for 
trawls of 4 or fewer traps, and to allow trawls with 5 or more traps to 
have two buoy lines (effective six months after publication of a final 
rule). As noted previously, NMFS intends to discuss vertical line 
issues, including the complex ones such as the number of traps per 
trawl, with the ALWTRT after ongoing research is completed in order to 
develop a comprehensive approach to reducing entanglement risk 
associated with vertical lines.
    For Northern Inshore State Trap/Pot Waters and the state portion of 
the Cape Cod Bay Restricted Area (May 16-December 31) only, this 
preferred alternative would eliminate the Lobster Take Reduction 
Technology List (i.e., a list of gear modification options) and require 
a 600-lb (272.2-kg) weak link on all flotation devices and/or weighted 
devices attached to the buoy line (effective 6 months after publication 
of a final rule). Weak links are already a requirement in other areas, 
such as the Cape Cod Bay Restricted Area from January 1 to May 15. 
Therefore, this would enable NMFS to utilize weak links as a broad-
based management measure. It is important to note that, while the 
strain recorded on buoy systems during load cell testing can indicate 
whether a particular weak link breaking strength is appropriate, the 
recorded strains alone cannot establish weak link breaking strengths 
because breaking strengths must factor in a reasonable measure of 
safety to prevent losing gear at sea during the worst conditions. Gear 
research has indicated that a 600-lb (272.4-kg) breaking strength weak 
link will provide a measure of protection for whales, as well as 
maintain gear operations and prevent the loss of gear in this area 
(i.e., ghost gear).
    This preferred alternative would also lower the weak link breaking 
strength on all flotation devices and/or weighted devices attached to 
the buoy line in the nearshore portion of the Great South Channel 
Restricted Area that overlaps with LMA 2 and the Outer Cape (July 1-
March 31) from 1,500-lb (680.4-kg) to 600-lb (272.2-kg) (effective 6 
months after publication of a final rule). All fishermen in the 
nearshore portion of the Great South Channel Restricted Area would then 
be required to have a 600-lb weak link on all flotation devices and/or 
weighted devices attached to the buoy line. This would ensure that 
fishermen in nearshore areas (i.e., LMA 2 and the Outer Cape) have the 
same weak link requirements.
    Offshore Trap/Pot Waters Area and Great South Channel Restricted 
Area (Offshore Portion)--This preferred alternative would extend the 
southern boundary of the Offshore Trap/Pot Waters Area by following the 
100-fathom (600-ft or 182.9-m) line from 35[deg]30' N. to 27[deg]51' N. 
and then extending out to the eastern edge of the EEZ (effective 6 
months after publication of a final rule). In addition to the current 
requirements, this preferred alternative would lower the maximum 
breaking strength of weak links on all flotation devices and/or 
weighted devices attached to the buoy line in Offshore Trap/Pot Waters 
and the offshore portion of the Great South Channel Restricted Area 
that overlaps with the LMA 2/3 overlap and LMA 3 Areas from 2,000 lb 
(907.2 kg) to 1,500 lb (680.4 kg) (effective 6 months after publication 
of a final rule). Lowering the weak link breaking strength is 
appropriate, as testing conducted by the NMFS Gear Research Team and 
the offshore lobster industry found that the breaking strength on the 
buoy line could be lowered while still allowing the gear to be used 
effectively.
    Southern Nearshore Trap/Pot Waters Area--This preferred alternative 
would extend the southern boundary of the Southern Nearshore Trap/Pot 
Waters Area by following the 100-fathom (600-ft or 182.9-m) line from 
35[deg]30' N. to 27[deg]51' N. and then extending the boundary inshore 
to the coast or exempted areas. The Southern Nearshore Trap/Pot Waters 
would be defined by Lobster Management Areas 4, 5, and 6 (except for 
the exempted areas) north of 35[deg]30' N. and by the 100-fathom (600-
ft or 182.9-m) line west to the coast or exempted areas south of 
35[deg]30' N. In addition to the current requirements, this preferred 
alternative would implement the regulations currently required in the 
Southern Nearshore Trap/Pot Waters in the portion of Lobster Management 
Area 6 that is neither exempted under the ALWTRP waters (i.e., mouth of 
Long Island Sound) nor currently regulated by the ALWTRP (effective 6 
months after publication of a final rule).
Changes Proposed for the Atlantic Large Whale Take Reduction Plan for 
Other Trap/Pot Gear
    The following trap/pot fisheries (designated as ``Other Trap/Pot 
Fisheries'' from this point on) are currently not regulated under the 
ALWTRP, but have the potential to entangle large whales: crab (red, 
Jonah, rock, and blue), hagfish, finfish (black sea bass, scup, tautog, 
cod, haddock, pollock, redfish (ocean perch), and white hake), conch/
whelk, and shrimp. In both preferred alternatives, NMFS proposes to 
regulate these trap/pot fisheries under the ALWTRP because they have 
the potential to entangle, seriously injure, and kill large whales. For 
some of these fisheries, entanglements have been documented. However, 
NMFS is soliciting comments to help determine if all appropriate 
directed fisheries have been included in the above list (other than 
lobster). A complete listing of the species landed using trap/pot gear 
is provided as Appendix 4A to Chapter 4 of the DEIS (see ADDRESSES).
    Through this proposed rule, these Other Trap/Pot fisheries would be 
required to comply with current ALWTRP regulations, including the 
universal gear modifications, and would follow the same area 
designations and requirements (e.g., weak links, SAM and DAM program 
requirements, and Critical Habitat restrictions) currently required and 
proposed for the lobster trap/pot fisheries already covered by the 
ALWTRP (effective 6 months after publication of a final rule). [The 
ALWTRP universal gear modifications

[[Page 35900]]

include: no buoy line floating at the surface, no wet storage of gear 
(all gear must be hauled out of the water at least once every 30 days), 
and fishermen are encouraged, but not required, to maintain knot-free 
buoy lines.] Where applicable, these fisheries would also be regulated 
under the ALWTRP within the portion of Lobster Management Area 6 that 
is not exempted by the ALWTRP (i.e., mouth of Long Island Sound) 
(effective 6 months after publication of a final rule). In addition to 
complying with the current ALWTRP requirements, the Other Trap/Pot 
Fisheries would be required to comply with the proposed modifications 
for the lobster trap/pot fishery specified in this proposed rule 
(effective 6 months after publication of a final rule unless otherwise 
noted). NMFS proposes that these Other Trap/Pot fisheries are similar 
enough in configuration and operation that they should be regulated 
similarly, with the exception of the red crab fishery discussed below.
    Red crab Trap/Pot Gear: Through this proposed rule, the maximum 
weak link breaking strength would be lowered from 3,780-lb (1,714.6-
kg), as currently required in the Final Rule implementing the Red Crab 
Fishery Management Plan (67 FR 63221, October 19, 2002), to 2,000-lb 
(907.2-kg). Initially, the 3,780-lb (1,714.6-kg) weak link breaking 
strength was implemented to be consistent with the original ALWTRP weak 
link requirements for the offshore lobster fishery. However, at the 
February 2004 ALWTRT meeting, members discussed lowering the weak link 
breaking strength for the red crab fishery. Following the meeting, NMFS 
worked with red crab fishermen to understand the gear configurations 
and operations of this fishery. Based on this research, NMFS proposes 
that a 2,000-lb (907.2-kg) weak link be attached to all flotation and/
or weighted devices attached to the buoy line in the red crab fishery 
(effective 6 months after publication of a final rule). Accordingly, 
the regulatory text found at 50 CFR 648.264(a)(6)(i) regarding weak 
link breaking strength for red crab fishing gear would be modified 
under this proposed rule to include a cross reference to the ALWTRP 
regulations found at Sec.  229.32.
    NMFS believes the proposed weak link configurations for the red 
crab fishery are appropriate due to the unique operational 
characteristics of and human safety concerns associated with the red 
crab fishery. The red crab fishery typically operates in offshore 
waters at depths in excess of 2,000-ft (609.6-m), thus the gear 
deployed to fish in these conditions must be adapted accordingly to 
endure the elements. The individual trawls consist of up to 200 traps. 
Buoy lines required to set and haul this gear must be able to withstand 
significant loads. As a result, the buoy lines use rope that is larger 
in both diameter and length, which requires the support of a more 
buoyant surface system. Therefore, to prevent buoys from being pulled 
underwater by the size and weight of the buoy lines, up to 2,400 lbs 
(1,088 kg) of positive buoyancy must be attached to the surface end of 
the buoy lines, often with individual buoys having 800-lbs (362.9-kg) 
of buoyancy. Moreover, the hydrodynamic force of currents and wave 
activity may affect the buoy and, coupled with the buoyancy component, 
could increase the load on each buoy significantly above 800-lb (362.9-
kg).
Changes Proposed for the Atlantic Large Whale Take Reduction Plan for 
All Trap/Pot Gear
    Broad-based Gear Modifications--As previously noted, most of the 
broad-based gear modifications identified in this proposed rule would 
become effective 6 months after publication of the final rule except 
for the groundline requirement discussed below, which would be phased-
in. In 2008, when the sinking/neutrally buoyant groundline requirement 
becomes fully effective, this preferred alternative would eliminate the 
SAM and DAM programs. However, until 2008, the Other Trap/Pot Fisheries 
that would be added to the ALWTRP would be subject to SAM and DAM 
program requirements. NMFS would like public comment on the proposed 
gear modifications as well as any variations that would provide 
conservation benefits to large whales comparable to the measures 
described above. Specifically, NMFS is interested in comments on 
whether installing gear modifications are warranted for gear that is 
tended and/or actively fished (i.e., gear that is in close proximity to 
the vessel and has a maximum soak time).
    ALWTRP Regulated Trap/Pot Waters: Due to the proposed addition of 
new trap/pot fisheries, ALWTRP-regulated Lobster Waters would be re-
designated as ALWTRP-regulated Trap/Pot Waters to reflect the broader 
application of ALWTRP requirements. Accordingly, under the proposed 
rule, the term ``lobster trap/pot'' would be replaced with ``trap/pot'' 
where it appears in the regulations implementing the ALWTRP.
    Seasons and Boundaries: Under this proposed rule, an area would be 
created bounded on the west by a line running from the Rhode Island/
Connecticut border (41[deg]18.2' N. and 71[deg]51.5' W.; Watch Hill, 
RI), south to 40[deg]00' N., and east to the eastern edge of the EEZ. 
The gear fished in the area north of this line would be required to 
incorporate current and proposed broad-based gear modifications year-
round; the gear fished in the area south of this line to the South 
Carolina/Georgia border would require gear modifications from September 
to May (effective 6 months after publication of a final rule). Areas 
south of the South Carolina/Georgia border would require gear 
modifications in the following areas and during the following seasonal 
time periods: between the South Carolina/Georgia border and 29[deg]00' 
N. from November 15-April 15; between 29[deg]00' N. and 27[deg]51' N. 
from December 1-March 31 (effective 6 months after publication).
    Sinking/Neutrally Buoyant Groundlines: Under this preferred 
alternative, the lobster trap/pot fishery currently regulated by the 
ALWTRP, as well as the other trap/pot fisheries to be added through 
this proposed rule, would be required to use groundline composed 
entirely of sinking and/or neutrally buoyant line in the applicable 
areas and time periods beginning in 2008.
    Although the broad-based sinking/neutrally buoyant groundline 
requirement would not become effective until 2008, NMFS believes that, 
in the northeast, the changeover to sinking/neutrally buoyant 
groundline will begin prior to 2008 as fishermen replace their 
groundline as it naturally wears out. For example, according to a 
Massachusetts Division of Marine Fisheries (MADMF) gear buyback program 
survey of fishermen who are representative of the Massachusetts inshore 
lobster trawl fleet, this fishery has undergone an estimated 10-percent 
reduction in the amount of floating groundline used between 2002 and 
2003. The data indicated that 46.7 percent of the fishermen who 
responded to the survey (515 out of 1196 surveys sent) do not currently 
use floating groundline in their trawls. Fifty-six percent of these 
fishermen indicated they have replaced floating groundline within the 
last three years.
    Based on these results and communication with the inshore lobster 
trap/pot industry, MADMF reports the majority of the inshore lobstermen 
are switching to sinking/neutrally buoyant groundline (MADMF uses the 
term ``negatively buoyant''). Additionally, MADMF is partnering with 
other groups on a gear exchange program to provide Massachusetts 
commercial lobstermen with financial assistance (through federal grant 
monies) to purchase ``negatively buoyant'' groundline to

[[Page 35901]]

reduce the risks of right whales becoming entangled in state coastal 
waters. Eligible Massachusetts lobstermen would turn in their old 
polypropylene line, which would then be recycled. Lobstermen would then 
be issued a voucher that they may use to purchase new ``negatively 
buoyant'' line at a participating distributor (fishermen would be 
required to pay for a portion of the line).
    MADMF expects the switch-over to ``negatively buoyant'' groundline 
through this program to occur by spring 2005. The early changeover is 
also likely to continue particularly in the northeast as fishermen 
respond to gear modifications required by the implementation of SAM and 
DAM programs, which require seasonal or temporary use of non-floating 
groundline. For example, some fishermen may choose to fish with SAM 
and/or DAM compliant gear year round, or at least during the months 
when SAM areas are in effect and DAM zones are most likely to be 
triggered, rather than having to change their gear over when a SAM area 
is effective or remove it when a DAM zone is established. NMFS believes 
this situation would occur in other areas too, especially as fishermen 
replace their old line with new line, which would begin to provide 
increased protection of large whales from entanglement earlier than 
2008.
    Weak Links: Through this proposed rule, weak links of the 
appropriate breaking strength would be required on all flotation 
devices and/or weighted devices attached to the buoy line such as 
buoys, toggles, and/or leaded lines (effective 6 months after 
publication of a final rule) for all current and proposed ALWTRP 
regulated areas and fisheries during the time periods when ALWTRP 
restrictions apply. The Other Trap/Pot Fisheries to be added to the 
ALWTRP under this proposed rule would also be subject to the weak link 
requirements. The weak link requirement is specifically designed to 
reduce entanglement and serious injury due to entanglements in and 
around the mouth and in buoy lines and surface systems. Thus, if a 
buoy, toggle, or weighted device is not attached to the buoy line with 
a weak link, a buoy line that becomes entangled through the mouth of a 
whale may be prevented from passing through the whale's baleen, and may 
result in a more complicated entanglement. Adding a weak link to all 
devices attached to the buoy line increases the likelihood that a line 
sliding through a whale's mouth will break away quickly at the buoy 
before the whale begins to thrash and become more entangled.
Changes Proposed for the Atlantic Large Whale Take Reduction Plan for 
Gillnet Gear
    Northeast Gillnet Waters--Anchored gillnets: Under both preferred 
alternatives, NMFS would require an increase in the number of weak 
links per net panel from one 1,100 lb (498.9 kg) to five or more 1,100 
lb (498.9 kg) weak links, depending on the length of the net panel, for 
anchored gillnets in Northeast Gillnet Waters (effective 6 months after 
publication of a final rule). Net panels are typically 50 fathoms (300 
ft or 91.4 m) in length, but the weak link requirement would apply to 
all variations in panel size. For example, net panels of 50 fathoms 
(300 ft or 91.4 m) or less in length, would be required to have one 
weak link in the floatline at the center of the net panel. For net 
panels greater than 50 fathoms (300 ft or 91.4 m), weak links would be 
placed continuously along the floatline separated by a maximum distance 
of 25 fathoms (150 ft or 45.7 m). For all variations in panel size, the 
following weak link requirements would apply: (1) Weak links would be 
placed in the center of each of the up and down lines at each end of 
each net panel; and (2) one floatline weak link would be placed as 
close as possible to each end of the net panel just before the 
floatline meets the up and down line. According to Smolowitz & Wiley 
(Land Testing of Gillnet Modifications,1998), it is better to place the 
weak links within each gillnet section rather than outside the panel at 
the bridle. Links that part at the bridle would leave a long section of 
net and line, which could still entangle a whale; however, the gillnet 
panel webbing without the floatline and leadline is not a very strong 
component of the gear and is less likely to cause serious injury or 
mortality. NMFS would like public comment on the proposed weak link 
configuration as well as any variations that would provide conservation 
benefits to large whales comparable to the weak link configuration 
described above. Specifically, NMFS is interested in comments on 
variations to the location of weak links within each gillnet section.
    In addition, all anchored gillnets, regardless of the number of net 
panels, would be required to be securely anchored with the holding 
power of at least a 22-lb (10.0-kg) Danforth-style anchor at each end 
of the net string (effective 6 months after publication of a final 
rule). Dead weights and heavy leadline would no longer be available as 
an optional anchoring system. Anchors with the holding power of a 22-lb 
(10.0-kg) Danforth-style anchor at each end of the net string would 
provide more resistance to allow a whale that becomes entangled to 
break the line at the weak links when enough force is exerted. NMFS 
believes that this weak link configuration would result in the whale 
either breaking entirely free of the gear or swimming away with only a 
portion of line or gear attached. When a portion of the gear remains 
attached to the whale in this manner, rather than being wrapped around 
the whale's body and exacerbating the initial entanglement, it could be 
shed more easily by the whale or may be removed through subsequent 
disentanglement efforts. NMFS would like public comment on the proposed 
configuration as well as any variations that would provide conservation 
benefits to large whales comparable to the weak link and anchoring 
configuration described above. Specifically, NMFS is interested in 
comments on variations to weak link and anchoring configurations for 
gillnets set within 300 yards (900 ft or 274.3 m) of the shore.
    In the Northeast, since the summer of 2001, the NMFS Gear Research 
Team has collected information on gillnet gear fished with five weak 
links per net panel, anchored at both ends of the net string with the 
holding power of a 22-lb (10.0-kg) Danforth-style anchor, and no 
floating groundline. This gillnet gear configuration was fished in 15-
net strings in the same manner as unmodified nets in both 12-25 nm 
(22.2-46.3 km) and 80-100 nm (148.2-185.2 km) offshore locations. Areas 
fished with this gear include the Great South Channel Sliver Area, 
Jeffreys Ledge, Cashes Ledge and Platts Bank, the Outer Falls, and the 
edge of the Davis Swell. Conditions included extremes in current, 
tides, and weather. The above configured nets displayed no problems 
other than those consistent with traditionally rigged gillnets in the 
Gulf of Maine.
    Mid/South Atlantic Gillnet Waters--Currently, the ALWTRP regulates 
gillnets in the Mid-Atlantic in an area designated as the Mid-Atlantic 
Coastal Gillnet Waters Area, but does not regulate the waters between 
the Virginia/North Carolina border east of 72[deg]30' W., and off the 
coast of South Carolina to the eastern edge of the EEZ to protect large 
whales. Under both preferred alternatives, the Mid-Atlantic Coastal 
Gillnet Waters Area would be expanded and renamed to include these 
currently unregulated waters (which include a component of the U.S. 
Mid-Atlantic coastal gillnet fishery and Southeast Atlantic gillnet 
fishery). Specifically, gillnet fisheries in the

[[Page 35902]]

waters from 72[deg]30' W., south to the Virginia/North Carolina border, 
east to the eastern edge of the EEZ, and south to the South Carolina/
Georgia border would be referred to as Mid/South Atlantic Gillnet 
Waters (effective 6 months after publication of a final rule).
    Anchored gillnet: An anchored gillnet is defined at 50 CFR 229.2 as 
``any gillnet gear, including a sink gillnet or stab net, that is set 
anywhere in the water column and which is anchored, secured, or 
weighted to the bottom of the sea. Also called a set gillnet.'' Thus, 
ALWTRP anchored gillnet regulations include those gillnets that are 
weighted to the ocean floor, but do not have an anchor attached on 
either end.
    The current ALWTRP regulations require anchored gillnet gear to 
have all buoys attached to the main buoy line with a weak link having a 
maximum breaking strength no greater than 1,100 lb (498.9 kg), and all 
net panels must contain weak links with a maximum breaking strength no 
greater than 1,100 lb (498.9 kg) in the middle of each floatline of 
each 50 fathom (300 ft or 91.4 m) net panel or every 25 fathoms (150 ft 
or 45.7 m) for longer panels.
    Under both preferred alternatives, all gillnets in the Mid/South 
Atlantic Gillnet Waters must return to port with the vessel or, if 
leaving the gear set overnight, contain five or more weak links 
depending on the length of the net panel, with a maximum breaking 
strength no greater than 1,100 lb (498.9 kg) for each net panel; have 
an 1,100-lb (498.9-kg) weak link on all flotation and/or weighted 
devices, including buoys, toggles, and leaded lines attached to the 
buoy line; and 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 
(effective 6 months after publication of a final rule). NMFS is 
proposing this requirement to reduce entanglements of large whales at 
night when gillnet gear is not returned to port with the vessel. NMFS 
seeks public comment on the proposed weak link configuration as well as 
any variations that would provide conservation benefits to large whales 
comparable to the weak link configuration described above. 
Specifically, NMFS is interested in comments on variations to the 
location of weak links within each gillnet section. In addition, NMFS 
is interested in comments on variations to weak link and anchoring 
configurations for gillnets set within 300 yards (900 ft or 274.3 m) of 
the shore.
    Since the spring of 2003, the NMFS Gear Research Team has been 
collecting information on gillnet gear being fished with the above 
configuration of net panel weak links in the Mid-Atlantic. Load cell 
data collected on vessels while hauling gear in the Mid-Atlantic 
indicate loads similar to those recorded in New England (approximately 
250 to 500 lb (113.4 to 226.8 kg)). In the waters off Maryland and 
Virginia, these nets have been fished close to shore as well as between 
12 to 15 nautical miles (22.2 to 27.8 km) offshore. The above 
configured nets displayed no problems other than those consistent with 
traditionally rigged gillnets in the Mid-Atlantic. It is important to 
note, while the strain recorded on buoy systems during load cell 
testing can indicate whether a particular weak link breaking strength 
is appropriate, the recorded strains alone cannot establish weak link 
breaking strengths because breaking strengths must factor in a 
reasonable measure of safety to prevent losing gear at sea during the 
worst conditions.
    Drift gillnet: Under this preferred alternative, in Mid/South 
Atlantic Gillnet Waters, when drift gillnet gear is fished at night 
(i.e., tended), all net panels would be required to contain weak links 
with a maximum breaking strength no greater than 1,100 lb (498.9 kg) in 
the middle of the floatline of each 50-fathom (300 ft or 91.4 m) net 
panel, or every 25 fathoms (150 ft or 45.7 m) for longer panels 
(effective 6 months after publication of a final rule). ``Tended'' is 
defined at 50 CFR 229.2 to