[Federal Register Volume 62, Number 65 (Friday, April 4, 1997)]
[Rules and Regulations]
[Pages 16108-16112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8727]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 960730211-7066-03; I.D. No. 031797D]
North Atlantic Right Whale Protection; Emergency Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency interim rule.
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SUMMARY: This emergency interim rule implements restrictions on use of
lobster pot gear in the Cape Cod Bay right whale critical habitat from
April 1, 1997, through May 15, 1997. It also prohibits lobster pot
fishing in the Great South Channel right whale critical habitat area
from April 1, 1997, through June 30, 1997, until gear modifications or
alternative fishing practices that minimize the risk of entanglement or
reduce the likelihood that entanglement will result in serious injury
or mortality are developed and approved.
EFFECTIVE DATE: This rule is effective from April 1, 1997, through June
30, 1997.
ADDRESSES: Copies of the Environmental Assessment analyzing this action
may be obtained from the Chief, Marine Mammal Division, Office of
Protected Resources (FPR), NMFS, 1315 East West Highway, Silver Spring,
MD 20910.
FOR FURTHER INFORMATION CONTACT: Michael Payne, NMFS/Marine Mammal
Division/Office of Protected Resources, 301-713-2322; or Kimberly
Thounhurst, NMFS/Northeast Regional Office/Protected Species Program,
508-281-9138.
SUPPLEMENTARY INFORMATION:
Need for Emergency Action
With a minimum population estimate of 295 animals, the northern
right whale is the most severely depleted large whale species in the
Atlantic Ocean. Approximately 37 entanglements of right whales in
fishing gear, including fixed and drift gillnets, lobster pot gear,
fish traps, weirs, and unidentified gear have been reported. Nine of
the above entanglements, eight of which resulted in serious injury or
mortality, were attributed to gear identified as lobster gear. The
working definition of serious injury used by the Northeast Region is
provided in the 1997 List of Fisheries (62 FR 33, January 2, 1997).
Pursuant to Section 118(g)(1)(B) of the Marine Mammal Protection Act
(MMPA), if the Secretary of Commerce (Secretary) finds that the
incidental mortality and serious injury of a marine mammal stock is
having, or is likely to have, an immediate and significant adverse
impact on that stock or species, and in the case where a take reduction
plan (TRP) is being developed, the Secretary shall prescribe emergency
regulations to reduce such incidental mortality and serious injury in
that fishery and approve and implement, on an expedited basis, such
plan, which shall provide methods to address such adverse impact if
still necessary.
In the case of the northern right whale, NMFS has determined,
through consultation under the Endangered Species Act (ESA), that the
continued existence of the species may be jeopardized by the use of
lobster pot gear during the annual high use periods in both the Federal
portion of the Cape Cod Bay critical habitat (January 1, 1997, through
May 15) and in the Great South Channel critical habitat area (April 1
through June 30). The consultation concluded that the risk of jeopardy
could be avoided by closing the Great South Channel critical habitat
area during the period of peak whale abundance until gear modifications
or alternative fishing practices have been developed which minimize the
threat of entanglement or the possibility of serious injury or
mortality due to entanglement. The biological opinion also recommended
that NMFS work with the Commonwealth of Massachusetts to restrict or
modify the lobster fishery in the Cape Cod Bay critical habitat. The
conclusion of the biological opinion was based on the following
factors: (1) In 20 of the past 27 years, the right whale population has
incurred human-induced serious injury or mortality at a rate that
continues to limit the species' ability to recover to its optimum
sustainable population level, (2) the population remains at a
critically low level and experienced an unusually high number of known
mortalities in 1996, and (3) right whales have incurred serious injury
and mortality incidental to the lobster pot fishery.
Areas designated under the ESA as critical habitat areas for the
northern right whale were chosen to encompass areas of concentration
for the species (See 50 CFR 226.13). Although individual right whales
may transit much of the eastern coast of North America, large numbers
of whales are likely to remain in the critical habitat areas throughout
the peak months. Peak months include January or February through May in
Cape Cod Bay and April through June in the Great South Channel.
Identifying high risk times and areas for right whales is somewhat
problematic because, although the location for most recorded
entanglement events is unknown, entanglements are known to have
occurred either at the very end of the peak spring period or at other
times of the year. An analysis of fishing effort data indicates that
the critical habitat areas do not have significant fishing effort in
the peak whale abundance months. Despite low fishing effort levels,
NMFS assigns high risk to critical habitat areas during peak
[[Page 16109]]
whale abundance months. Even a small amount of fishing effort
represents an entanglement risk when numbers of whales in the area are
high. Protection for right whales in critical habitat areas during non-
peak months is expected to be addressed in the proposed rule for the
Atlantic TRP, which is currently being developed.
Pursuant to the 1994 amendments to the MMPA, NMFS established an
Atlantic large whale take reduction team (TRT) to recommend measures to
reduce the number of serious injuries and mortalities of right,
humpback, finback, and minke whales in four East Coast fisheries.
Although the TRT did not reach consensus on all issues it did submit a
report to NMFS on February 4, 1997, that discusses measures to restrict
the lobster fishery in critical habitat. Many of the measures were
based on the NMFS biological opinion and on the Commonwealth of
Massachusetts right whale conservation plan submitted to the Federal
district court for the District of Massachusetts on December 16, 1996,
pursuant to a court order in the case of Strahan v. Coxe. NMFS plans to
publish the proposed rule for the TRP by April 1, 1997, and the final
plan and implementing regulations by July 15, 1997.
Although these dates represent an expedited schedule, the TRP will
not be implemented in time to provide protection for right whales in
the critical habitat area during high use periods in 1997. Due to the
conclusion in the biological opinion issued under the ESA and the
factors upon which that conclusion was based, NMFS has determined that
the American lobster pot fishery has the potential to continue to take
northern right whales and is therefore likely to have an immediate and
significant adverse impact on the northern right whale population.
Since the potential immediate and significant adverse impact cannot be
addressed by the TRP until July 1997, NMFS is implementing fishing
restrictions in critical habitat areas on an emergency basis. The
measures contained in the emergency regulations are also being
considered within the framework of the proposed rule for the entire
Atlantic large whale TRP, which is currently being developed.
Rationale for Gear Restrictions and Closures
The emergency measures are a set of initial measures addressing the
immediate need to begin the process of reducing entanglement risk to
northern right whales incidental to the lobster pot fishery. These
measures include both gear restrictions and closures in portions of
right whale critical habitat in Cape Cod Bay and the Great South
Channel. Gear restrictions are required only in areas where serious
entanglements are less likely to occur, and where it is more probable
that, if an entanglement does occur, it will be observed. Restrictions
on the use of all lobster pot gear are being required where serious
entanglements are more likely to occur and where entanglements are less
likely to be observed. For example, the Cape Cod Bay area is closer to
shore than the Great South Channel, so entanglements are more likely to
be observed and reported in Cape Cod Bay, and it is more likely that a
successful disentanglement could be conducted in the Bay than in the
Channel. Therefore, certain gear modifications are exempted in the
Federal portion of the Cape Cod Bay critical habitat, but no
modifications are approved for use in the Great South Channel at this
time. The gear modifications exempted by this action for Cape Cod Bay
are expected to substantially reduce the risk of entanglement, but NMFS
recognized that the risk is not totally eliminated and that a serious
injury or mortality in the exempted gear could occur. Therefore, this
emergency action also includes a contingency measure, as described
below, to close the Federal portion of the Cape Cod Bay critical
habitat area in the event of a documented failure of the modified
lobster pot gear.
Behavior of right whales and information from actual entanglement
records suggest that both vertical buoy lines and groundlines (line
connecting pots in a lobster pot trawl) used in lobster pot gear
represent entanglement risks and that either part of the gear might be
the part initially encountered by the whale. Modifications to the
current practices of rigging buoy lines are needed to reduce the number
of vertical lines.
Buoy lines are typically constructed of a section of sinking line
near the surface, spliced or knotted to a longer section of floating
line from there down to the anchor. Sinking line near the surface is
preferred to decrease the chance that the line will be severed by
propellers of vessels passing through an area. Floating line is less
expensive than sinking line and has several additional benefits. For
example, using floating line near the bottom can prevent the line from
wrapping around the first pot and causing chafing problems with the pot
and the bottom. The length of buoy line used can depend on water depth
and tidal influence. In some areas the buoy line may be longer than
twice the water depth. The tautness of the line is likely influenced by
the tidal cycle and other currents. Therefore, the line may be slack
during part of the current cycles in certain areas. It is believed that
slack floating line represents a greater risk of entanglement than taut
line, particularly if the line is laying on the surface. Right whales
may be particularly susceptible to entanglement in lines laying at the
surface because of the feeding behavior known as ``skim feeding''
during which whales move slowly forward through a patch of zooplankton,
keeping the mouth slightly ajar for hours at a time. Right whales are
also known to feed at depth; however, the behavior when feeding near
the bottom or in the water column is poorly understood. A requirement
that buoy line include only sinking line would decrease the potential
for line to be slack at the surface or in the water column and thereby
reduce the risk of entanglement represented by buoy lines.
The lobster industry uses either sinking or floating groundline,
depending on substrate and/or gear densities. Floating line is
preferred in many areas to avoid snagging on rocky bottom or on other
pots as well as to reduce chafing caused by contact with pots and with
the bottom. The degree to which line floats between pots is unknown.
Fishers maintain that the groundline is probably taut as the pot trawls
are set. The tautness of the line is likely influenced by the tidal
cycle and other currents, the length of the trawl, and the speed with
which the trawl is set. If trawls are shifted by currents, groundlines
may have a higher profile after the gear has been soaking through
several tidal/current cycles. In addition, right whales are known to
feed close enough to the bottom in certain areas that mud is still
present on the heads after surfacing. Therefore, even a modest curve to
the groundline could still represent an entanglement threat,
particularly since the length of groundline between pots may be as long
as the depth of the water column. The requirement of sinking groundline
would reduce the potential for a high profile of the groundline and,
therefore, reduce the entanglement threat represented by that part of
the pot trawl.
Cape Cod Bay: The Commonwealth of Massachusetts established an
Endangered Whale Working Group (EWWG) and developed measures to protect
right whales in the portion of Cape Cod Bay critical habitat area
located in Commonwealth waters. The EWWG recommended several gear
modifications to reduce the threat of right whale entanglement in
lobster pot gear in the Cape Cod Bay critical
[[Page 16110]]
habitat, and these measures were also discussed by the TRT.
Oceanographic conditions were also taken into account. The measures
recommended by the EWWG for critical habitat during the January 1
through May 15 period included prohibitions on floating buoy line and
floating groundline, prohibition on use of single pots (i.e., a
mandated use of multiple-pot trawls) to reduce the number of vertical
lines, and an eventual requirement of a breakaway buoy or weak buoy
line, when developed. NMFS has reviewed these measures and has
determined that, in general, they represent a reasonable approach to
reduce the risk that right whales will be seriously injured or sustain
mortality as a result of entanglements in lobster gear. Consequently,
NMFS is not duplicating those measures applicable to State waters in
this emergency rule. However, there is a small portion of the Cape Cod
Bay critical habitat area that is outside of Commonwealth waters. NMFS'
emergency measures for the federal water portion of Cape Cod Bay
critical habitat are largely based on the measures developed by
Massachusetts. This rule requires the removal of all lobster pots from
the waters of the Cape Cod Bay critical habitat area through May 15,
1997, unless the gear is exempt. Exempt gear consists of trawls of two
or more pots; trawls of less than four pots may use only one vertical
line and trawls of four or more pots may use no more than two vertical
lines. All buoy lines and groundlines must be sinking lines. NMFS
believes these measures will reduce the risk of entanglement and/or
serious injury or mortality due to entanglement in buoy lines and
groundlines in this area.
The TRT recommended the use of breakaway buoys or weak buoy lines
to reduce the potential for a whale to become wrapped in the buoy line
and sustain serious injury or mortality from either the buoy line
itself or from dragging the whole lobster pot trawl. It is believed
that these measures would be more effective at reducing the risk
associated with buoy lines than the measures imposed by this emergency
action. However, since breakaway buoys and weak buoy lines have not yet
been developed, these measures cannot be required at this time.
Therefore, despite the implementation of the measures required by this
emergency action in Federal waters and by the Commonwealth of
Massachusetts in its waters, some risk of serious injury or mortality
due to entanglement in buoy lines remains. Thus, a provision is
included in this emergency action that would allow the Assistant
Administrator of Fisheries, NOAA (AA) to close, through notification in
the Federal Register, the Cape Cod Bay critical habitat area, including
both the Federal and Commonwealth portions, from January 1 through May
15 if a right whale sustains serious injury or mortality that is
conclusively attributed to lobster pot gear that is exempted by NMFS or
allowed by the Commonwealth. The AA may reopen the area through
notification in the Federal Register once alternative gear
modifications or fishing practices are approved.
Great South Channel: The Great South Channel critical habitat area,
which is located entirely in federal waters, is further from shore than
the Cape Cod Bay area. Therefore, entanglements are less likely to be
observed, and successful disentanglement is less likely due to
logistical constraints. In addition, differences in oceanographic
conditions in the two regions may make a particular gear modification
less effective in one area relative to the other. NMFS is currently
working with the Commonwealth of Massachusetts to establish a gear
modification advisory and technical review group. This group will be
asked to consider oceanographic conditions in the Great South Channel
in recommending gear modifications that might be effective and
practicable in that area. Because the gear measures required by this
rule for Cape Cod Bay have not been reviewed in the context of
oceanographic conditions in the Great South Channel, NMFS believes that
similar measures may not provide sufficient protection for right whales
in that area. Consequently, NMFS is imposing a closure of the Great
South Channel critical habitat area from April 1, 1997 through June 30,
1997. However, this action includes a provision for exemptions to this
closure once gear modifications or alternative fishing practices are
developed and approved by the AA. Once a determination has been made
that the gear modifications or alternative fishing practices provide
adequate protection for right whales from the risk of entanglement and/
or serious injury or mortality due to entanglement, these gear
modifications or alternative fishing practices will be approved through
a notification action in the Federal Register.
In consideration of the possibility that gear modifications may be
approved by this season and gear with such modifications exempted from
the closure at some point during the April through June period, this
emergency action also contains a contingency similar to that for Cape
Cod Bay that would allow the AA to again close the area through
notification in the Federal Register if a right whale sustains serious
injury or mortality that is conclusively attributed to lobster pot gear
exempted by NMFS.
Classification
In accordance with Section 118(g) of the MMPA, NMFS has determined
that this rule is necessary to respond to the potential for immediate
and significant adverse impact to the northern right whale population
incidental to the prosecution of the American lobster pot fishery.
The AA also finds for good cause that the reasons justifying
implementation of this rule on an emergency basis make it impracticable
and contrary to the public interest to provide additional notice and
opportunity for public comment.
Similarly, the AA is waiving the 30-day delay in the effective date
otherwise required under 5 U.S.C. 553(d).
Because notice and opportunity for comment is not required by 5
U.S.C. 553 or by any other law, under 5 U.S.C. 603 and 604, preparation
of a regulatory flexibility analysis is not required.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: April 1, 1997.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 229 is amended
to read as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for 50 CFR part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Effective from April 1, 1997, through June 30, 1997, in
Sec. 229.2, the definitions for ``American lobster or lobster'',
``Groundline'', ``Lobster pot trawl'', ``Pot'', and ``Sinking line''
are added in alphabetical order to read as follows:
Sec. 229.2 Definitions.
* * * * *
American lobster or lobster means the species Homarus americanus.
* * * * *
[[Page 16111]]
Groundline means the line connecting pots on a pot trawl.
* * * * *
Lobster pot trawl means two or more lobster pots, all attached to a
groundline.
* * * * *
Pot means any trap, structure, or other device that is placed on
the ocean bottom and is designed to catch or is capable of catching
lobsters.
* * * * *
Sinking line means line that will sink and will not float at any
point in the water column.
* * * * *
3. Effective from April 1, 1997, through June 30, 1997, in
Sec. 229.3, paragraphs (g) and (h) are added to read as follows:
Sec. 229.3 Prohibitions.
* * * * *
(g) It is prohibited to fail to remove all lobster pot gear from
the water, or to use, set, haul back, or fish with, lobster pot gear in
the Cape Cod Bay Critical Habitat Restricted Lobster Gear Area as
specified in Sec. 229.30(a), unless such gear meets the requirements
and conditions specified in Sec. 229.30(a)(3).
(h) It is prohibited to fail to remove all lobster pot gear from
the water, or to use, set, haul back, or fish with, lobster pot gear in
the Great South Channel Critical Habitat Restricted Lobster Pot Gear
Area as specified in Sec. 229.30(b), unless otherwise allowed under
Sec. 229.30(b)(3).
4. Effective from April 1, 1997, through June 30, 1997, a new
Sec. 229.30 is added to Subpart C to read as follows:
Subpart C--Take Reduction Plan Regulations and Emergency
Regulations
Sec. 229.30 Lobster pot restrictions to prevent right whale takes.
(a) Cape Cod Bay Critical Habitat Area Lobster Pot Gear
Restrictions--(1) General. From April 1, 1997, through May 15, 1997,
all persons must remove all of their lobster pot gear from the water,
and may not use, set, haul back, or fish with, lobster pot gear, with
the exception of gear that is exempt under paragraph (a)(3) of this
section, in the area specified in paragraph (a)(2) of this section.
(2) Cape Cod Bay Critical Habitat Restricted Lobster Pot Gear Area.
(i) The restrictions and requirements specified in paragraph (a)(1) of
this section apply to the Cape Cod Bay Critical Habitat Restricted
Lobster Gear Area (Copies of a chart depicting this area are available
from the Regional Administrator upon request), which is the area
bounded by straight lines connecting the following points in the order
stated:
Cape Cod Bay Critical Habitat Restricted Lobster Gear Area
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Point N. Latitude W. Longitude
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CCB1............................. 42 deg.12'N 70 deg.30'W,
CCB2............................. 42 deg.12'N 70 deg.15'W,
CCB3............................. 42 deg.08'N 70 deg.12.4'W,
then westerly along the 3 nm
state boundary to
CCB4............................. 42 deg.08'N 70 deg.30'W,
then due north to CCB1.
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(3) Cape Cod Bay Critical Habitat Area Lobster Pot Gear Exemption
Requirements. (i) Lobster pot gear that meets the following
requirements and conditions is exempted from the restrictions specified
in paragraph (a) of this section:
(A) The gear is a lobster pot trawl.
(B) No more than one vertical line is used if the lobster pot trawl
consists of fewer than four lobster pots.
(C) No more than two vertical lines are used if the lobster pot
trawl consists of four or more lobster pots.
(D) All groundlines and buoy lines consist of sinking line.
Polypropylene line is not sinking line unless it contains a lead core.
(ii) The Assistant Administrator may revise the requirements and
conditions specified in paragraph (a)(3)(i) of this section or impose
additional requirements and conditions and/or exempt specified
alternative fishing practices by publishing the requirements,
conditions, or alternatives in the Federal Register.
(4) Additional measures for the protection of right whales. (i) If
a serious injury or mortality of a northern right whale occurs in the
Cape Cod Bay critical habitat area specified under 50 CFR 229.13(b)
during the time specified in paragraph (a)(1) of this section, and is
conclusively attributed to lobster pot gear exempt under paragraph
(a)(3)(i) of this section or allowed by the Commonwealth of
Massachusetts in Commonwealth waters, the area shall be closed for the
period specified in paragraph (a)(1) of this section through
notification in the Federal Register until such time as the Assistant
Administrator revises the requirements and conditions specified in
paragraph (a)(3)(i) of this section or imposes additional requirements
and conditions, or exempts specified alternative fishing practices in
accordance with paragraph (a)(3)(ii) of this section.
(ii) If a serious injury or mortality of any endangered whale
occurs in any area and at any time and is conclusively attributed to
gear exempt under paragraph (a)(3)(i) or allowed by the Commonwealth of
Massachusetts in Commonwealth waters, NMFS will reassess its exemption
of the gear and may close the Cape Cod Bay critical habitat area to all
lobster pot fishing through notification in the Federal Register until
such time as the Assistant Administrator revises the requirements and
conditions specified in paragraph (a)(3)(i) of this section or imposes
additional requirements and conditions, or exempts specified
alternative fishing practices in accordance with paragraph (a)(3)(ii)
of this section.
(b) Great South Channel Critical Habitat Area Lobster Pot Gear
Restrictions--(1) General. From April 1, 1997 through June 30, 1997,
all persons must remove all of their lobster pot gear from the water,
and may not use, set, haul back, or fish with, lobster pot gear in the
area specified in paragraph (b)(2) of this section, unless the
Assistant Administrator exempts such gear under paragraph (b)(3) of
this section.
(2) Great South Channel Critical Habitat Area Restricted Lobster
Pot Gear Area. The restrictions on use of lobster pot gear specified in
paragraph (b)(1) of this section apply to the Great South Channel
Critical Habitat (copies of a chart depicting this area are available
from the Assistant Administrator upon request), which is the area
bounded by straight lines connecting the following points in the order
stated:
Great South Channel Critical Habitat Closure Area
------------------------------------------------------------------------
Point N. Latitude W. Longitude
------------------------------------------------------------------------
GSC1............................ 41 deg.00' N 69 deg.05' W,
GSC2............................ 41 deg.40' N 69 deg.45' W,
GSC3............................ 42 deg.10' N 68 deg.31' W, and
GSC4............................ 41 deg.38' N 68 deg.13' W.
------------------------------------------------------------------------
(3) Exemptions for Lobster pot gear or alternative fishing
practices authorized by the Assistant Administrator. The Assistant
Administrator may exempt lobster pot gear or specified fishing
practices from the restrictions and requirements specified in paragraph
(b)(1) of this section by publishing the requirements and conditions
such gear must meet or the alternative fishing practices in the Federal
Register.
(4) Additional measures for the protection of right whales. (i) If
a serious injury or mortality of a northern right whale occurs in the
area and during the time specified in paragraphs (b)(1) and
[[Page 16112]]
(b)(2) of this section, and is conclusively attributed to lobster pot
gear that has been exempted under paragraph (b)(3) of this section, the
area in paragraph (b)(2) of this section shall be closed for the period
specified in paragraph (b)(1) of this section through notification in
the Federal Register until such time as the Assistant Administrator
revises the requirements and conditions, or imposes additional
requirements and conditions, or exempts specified alternative fishing
practices in accordance with paragraph (b)(3) of this section.
(ii) If a serious injury or mortality of any endangered whale
occurs in any area and at any time and is conclusively attributed to
gear which is exempt under paragraph (b)(3) of this section, NMFS will
reassess its exemption of the gear and may close the area to all
lobster pot fishing through notification in the Federal Register until
such time as the Assistant Administrator revises the requirements and
conditions, or imposes additional requirements and conditions, or
exempts specified alternative fishing practices in accordance with
paragraph (b)(3) of this section.
[FR Doc. 97-8727 Filed 4-1-97; 4:31 pm]
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