[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Proposed Rules]
[Pages 50390-50394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24910]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001128334-1239-04; I.D. 092401E]
RIN 0648-AN88


Marine Mammals; Atlantic Large Whale Take Reduction Plan (ALWTRP) 
Regulations; Seasonal Area Management (SAM) Program

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

ACTION: Advance notice of proposed rulemaking (ANPR); notice of intent 
(NOI) to prepare an Environmental Impact Statement (EIS); request for 
comments.

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SUMMARY: NMFS is preparing regulations to implement a Seasonal Area 
Management (SAM) program to seasonally limit fishing operations in 
certain areas, which was identified as a measure under the reasonable 
and prudent alternative (RPA) contained in the Biological Opinions 
(BOs) prepared for the Federal Northeast multispecies (multispecies), 
monkfish, spiny dogfish, and American lobster (lobster) fisheries under 
the Endangered Species Act (ESA). The SAM program is intended to 
provide endangered western North Atlantic right whales (right whales) 
protection from entanglement with fishing gear used in those fisheries. 
The measures that have been identified for proposed rulemaking would 
require the reduction, elimination, and/or modification of certain 
types of fixed gear (i.e., gillnets and lobster traps) in specific 
areas off the Atlantic coast of the United States during times of the 
year when right whales are known to be present in significant 
concentrations. NMFS also announces its intention to prepare an 
Environmental Impact Statement (EIS) for the SAM regulations, in 
accordance with the National Environmental Policy Act (NEPA), to 
analyze impacts to the environment of the management alternatives under 
consideration.

DATES: Written comments must be received at the appropriate address or 
facsimile (fax) number (see ADDRESSES) no later than 5 p.m. local time 
on November 2, 2001.

ADDRESSES: Written comments should be sent to: Mary Colligan, Acting 
Assistant Administrator for Protected Resources, Northeast Region, 
NMFS, One Blackburn Drive, Gloucester, MA 01930. Comments may also be 
sent via fax to 978-281-9394. Comments submitted via e-mail or Internet 
will not be accepted. Copies of the BOs may be requested from the above 
address or can be downloaded from the internet at the following 
website: http://www.nmfs.noaa.gov/prot_res/overview/publicat.html.

FOR FURTHER INFORMATION CONTACT: Gregg LaMontagne, NMFS, Northeast 
Region, 978-281-9291, fax 978-281-9394; Katherine Wang, NMFS, Southeast 
Region, 727-570-5312; or Patricia Lawson, NMFS, Office of Protected 
Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    In compliance with the Endangered Species Act (ESA)(16 U.S.C. 1531 
et seq.) section 7 consultation procedures, NMFS prepared Biological 
Opinions (BOs) for the continued authorization of Federal fisheries 
under the Fishery Management Plans for the multispecies, spiny dogfish, 
and monkfish fisheries, and under the Federal regulations for the 
lobster fishery, to assess the impacts of those fisheries on species 
protected under the ESA. Previous ESA section 7 consultations on those 
fisheries incorporated the Atlantic Large Whale Take Reduction Plan 
(ALWTRP) as an RPA to avoid the likelihood of jeopardy to right whales 
from the multispecies, dogfish, and monkfish gillnet fisheries and the 
lobster trap fishery. NMFS published a proposed rule on April 7, 1997 
(62 FR 16519), followed by an interim final rule on July 22, 1997 (62 
FR 39157), that contained the provisions of the ALWTRP and implementing 
regulations. NMFS published an interim final rule that implemented time 
and area closures, gear requirements, and a prohibition on storing 
inactive gear at sea, and contained other, non-regulatory measures 
(e.g., gear research, public outreach, scientific research) intended to 
reduce serious injury and mortality to four large whale stocks, 
including right whales.
    On February 16, 1999, NMFS published a final rule (64 FR 7529) that 
made changes to the interim final rule implementing the ALWTRP. On 
December 21, 2000, NMFS published an interim final rule (65 FR 80368) 
to implement additional measures (buoy line weak links, net panel weak 
links with anchoring systems, restrictions on numbers of buoy lines, 
and gear marking requirements) in response to continued entanglements 
of right whales with gear used in the multispecies, monkfish, spiny 
dogfish, and lobster trap fisheries.
    NMFS reinitiated consultation on May 4, 2000, for the northeast 
multispecies, spiny dogfish and monkfish gillnet fisheries, and on June 
22, 2000, for the Federal regulations for the lobster fishery, 
following new whale entanglements resulting in serious injuries, at 
least one right whale mortality in gillnet gear, new information 
indicating a declining status for western North Atlantic right whales 
(Caswell et al. 1999), and revisions to the ALWTRP. In previous 
consultations, the ALWTRP had been accepted as a reasonable and prudent 
alternative (RPA) to avoid the likelihood of jeopardy to right whales 
from these

[[Page 50391]]

four fisheries. Given the new information on the declining status of 
the right whale population and continued entanglements (suggesting 
possible failure of the RPA to avoid jeopardy to right whales), 
reinitiation of consultation was necessary to reevaluate the potential 
impact of these gillnet fisheries and the lobster trap fishery on right 
whales, and to assess the ability of the RPA to avoid the likelihood of 
jeopardy. The BOs resulting from these consultations were issued on 
June 15, 2001.

Biological Opinions

    The BOs prepared during the most recent consultation provided 
information on the status of all protected species that occur in 
western North Atlantic waters where the multispecies, spiny dogfish, 
monkfish, and American lobster trap fisheries operate, based on the 
best information available. The BOs treated the western North Atlantic 
right whale population as a recovery unit whose survival and recovery 
is critical to the survival and recovery of the species as a whole. Any 
activity that would appreciably reduce the likelihood that a recovery 
unit would survive and recover in the wild would also appreciably 
reduce the species' likelihood of survival and recovery in the wild. 
The BOs focused on the western North Atlantic recovery unit of right 
whales, which is the recovery unit that occurs in the area where these 
fisheries operate.
    Western North Atlantic right whales have been protected from 
whaling for more than 50 years, yet there is no evidence of their 
recovery. Based on recent estimates, the western North Atlantic 
population numbers about 300 individuals. Right whales may be adversely 
affected by habitat degradation, habitat exclusion, acoustic 
disturbance, harassment, or reduction in prey resources resulting from 
a variety of activities, including the operation of fisheries. The 
major known sources of human-caused mortality and injury of right 
whales include entanglement in commercial fishing gear and ship 
strikes. Caswell et al. (1999), which is cited in the BOs, concluded 
that reduction of such mortalities would significantly improve the 
species' chances for survival.
    Environmental baseline analyses for BOs includes the past and 
present impacts of all state, Federal or private actions and other 
human activities in the action area; the anticipated impacts of all 
proposed Federal projects in the action area that have already 
undergone section 7 consultation; and the impact of state or private 
actions that are contemporaneous with the consultation in process (50 
CFR 402.02). The environmental baselines for the BOs included the 
impacts of several activities that may affect the survival and recovery 
of threatened and endangered species in the action area and that fell 
into the following three general categories: Vessel operations, 
fisheries, and recovery activities associated with those impacts. Other 
environmental impacts include the effects of dredging, disposal, ocean 
dumping, and sonic activity. A number of factors in the existing 
baseline for right whales left considerable concern. For example, the 
western North Atlantic right whale population continues to decline, 
and, despite measures developed as a result of the initial ALWTRP, 
entanglements of right whales in fishing gear continue to occur.
    The BOs specifically examined whether the multispecies, monkfish, 
spiny dogfish, and/or lobster fisheries are likely to jeopardize the 
continued existence of any ESA-listed species. Factors considered 
included the degree of overlap between the operation of the fisheries 
under consultation and areas where protected species occur, past 
interactions between protected species and gear used in the fisheries, 
the known effects of gear interactions on protected species, and the 
effects of incorporating the existing ALWRTP measures. Based on this 
analysis, NMFS concluded that:
    1. Gillnet gear used in the multispecies, spiny dogfish, and 
monkfish fisheries poses an entanglement risk to protected species;
    2. Trap gear used in the lobster fishery poses an entanglement risk 
to protected species;
    3. Baleen whales are more likely to become entangled in gillnet 
gear, as opposed to toothed whales (e.g., sperm whales), given baleen 
whales' method of feeding;
    4. Of the baleen whales, right whales and humpback whales are most 
likely to interact with multispecies, spiny dogfish, and monkfish 
gillnet fisheries and the lobster trap fishery, since those whales 
commonly occur in areas and at times where those fisheries operate;
    5. Although directed effort in the spiny dogfish and monkfish 
fisheries is expected to be reduced over the next few years in an 
effort to rebuild those stocks, even the reduced amount of effort that 
is expected could still pose an entanglement risk for protected 
species; and
    6. Modification of the multispecies, spiny dogfish, and monkfish 
gillnet fisheries and the lobster trap fishery by the existing ALWTRP 
measures is not expected to remove all risk of gear interactions with 
protected species, given that the existing modifications of the ALWTRP 
do not apply to gillnet gear fished in the Mid-Atlantic or Southeast, 
where right and humpback whales may also occur. In addition, gear 
modifications as required by the ALWTRP have only recently been 
implemented (i.e., as a result of the December 21, 2000, interim final 
rule).
    Based on those six factors, the BOs concluded that gillnet and trap 
activities under the four fisheries as currently conducted are likely 
to jeopardize the continued existence of the right whale, but are not 
likely to destroy or adversely modify designated critical habitat; and 
may adversely affect, but are not likely to jeopardize, the continued 
existence of humpback, fin, blue, sei and sperm whales. Therefore, the 
potential for gear entanglements of right whales as a result of these 
fisheries must be further reduced by additional measures to reduce 
interaction between right whales and multispecies, monkfish, and spiny 
dogfish gillnets and lobster trap gear in areas and times of high right 
whale abundance, and by implementing gear modifications based on recent 
technological advances.
    The BOs also considered cumulative effects, which include the 
effects of future state, tribal, local or private actions that are 
reasonably certain to occur in the action area. Future Federal actions 
that are unrelated to the proposed action were not considered because 
they require separate consultation under section 7 of the ESA. Past and 
present impacts of non-Federal actions were also not included in the 
cumulative effects, because they are part of the environmental 
baseline. In the BOs, NMFS considered the following: State-water 
fisheries, the maritime industry, pollution, catastrophic events such 
as oil spills, noise pollution, and similar activities or occurrences 
in Canadian waters.
    The BOs concluded that the multispecies, spiny dogfish, monkfish, 
and lobster fisheries use gear that can cause serious injury and 
mortality to whales if entanglements occur. Gear interactions are more 
likely to occur if gear is concentrated in areas and at times that 
endangered whales occur in significant numbers. Right whales are 
vulnerable to entanglement in this type of gear while they are 
foraging.
    In view of the right whale's decline and probability of extinction 
if the population decline continues, any entanglement that causes 
serious injury and/or mortality may reduce appreciably the likelihood 
of survival and recovery of this species. Measures

[[Page 50392]]

developed thus far under the ALWTRP are not expected to prevent all 
entanglements of right whales in gillnet or lobster trap gear, since 
these measures are not applicable to all areas where right whale 
distribution overlaps the use of these gear types. Given the known 
human-caused sources of right whale mortality, their small population 
size, and their low reproductive rate, the loss of even one right 
whale, particularly a reproductively active female, may reduce 
appreciably the likelihood of the survival and recovery of this 
species.
    Given the current critical status of the right whale population and 
the aggregate effects of human-caused mortality that has led to the 
species' current status, the risk of incidental mortality caused by the 
multispecies, spiny dogfish, monkfish or lobster fisheries as currently 
prosecuted should be reduced. These fisheries take place in areas 
frequented by right whales and use sink gillnet gear and lobster trap 
gear, which are known to cause serious injury and mortality to right 
whales.

Reasonable and Prudent Alternative

    Regulations implementing section 7 of the ESA (50 CFR 402.02) 
define the RPA as alternative actions, identified during formal 
consultation, that: (1) can be implemented in a manner consistent with 
the intended purpose of the action; (2) can be implemented consistent 
with the scope of the action agency's legal authority and jurisdiction; 
(3) are economically and technologically feasible; and (4) avoid the 
likelihood of jeopardizing the continued existence of listed species or 
resulting in the destruction or adverse modification of critical 
habitat. As a result of the consultation and the finding of jeopardy 
for right whales, NMFS developed a single RPA with multiple management 
components that collectively are designed to avoid the likelihood of 
continued jeopardy for right whales and to allow the continued 
authorization of the four fisheries for which consultation was 
conducted.
    The RPA measures are intended, in combination, to avoid the 
potential for gillnet and lobster trap interactions with right whales, 
minimize adverse effects when and if interactions with these fishing 
gear types do occur, and mitigate any unavoidable entanglements of 
right whales with these gear types. The measures under the RPA are: 
Seasonal and Dynamic Area Management programs (SAM and DAM, 
respectively), an expansion of gillnet and lobster trap gear 
modifications to Mid-Atlantic waters, and modification of fishing 
practices in Southeastern U.S. waters, continued gear research and 
modifications, and additional measures to implement and monitor the 
effectiveness of the RPA.
    Both SAM and DAM are intended to reduce the potential for 
interactions of right whales with gillnet and lobster trap gear. NMFS 
will use data on seasonal concentrations of right whales obtained from 
aerial surveys to implement annual area-specific gear restrictions and/
or closures. The SAM program would be implemented through proposed and 
final rulemaking, which will require the preparation of an EIS and is 
the subject of this ANPR and NOI. To supplement the SAM program, NMFS 
is proposing in a separate proposed rule to further develop and 
implement the DAM program, which would be responsive to concentrations 
of right whales that would not otherwise be protected by the SAM 
measures. NMFS will identify criteria for triggering DAM in the 
separate proposed rule. The DAM measures are not the subject of this 
ANPR and NOI.
    Concurrent with this ANPR/NOI and the DAM proposed rule, NMFS is 
proposing to expand the gillnet and lobster trap gear modifications 
outlined in the December 21, 2000, interim final rule to include Mid-
Atlantic and Southeast waters. NMFS will also host a workshop to 
investigate options for gillnet and lobster trap gear modifications to 
prevent serious injury to right whales that may become entangled in 
that gear and will expand research and testing on the feasibility of 
eliminating floating line in the anchor and buoy lines of gillnet gear 
and lobster trap gear by replacing it with neutrally buoyant line. NMFS 
will continue research on weak-link floatlines in gillnet gear to 
investigate the possibility of reducing the strength of gillnet 
floatlines, which are known to be a problem in the entanglement of 
large whales. NMFS will also continue research on line that could be 
used in gillnets to eliminate external plastic floats when combined 
with properly placed weak links. Gear modification requirements will be 
implemented through proposed and final rulemaking and are not the 
subject of this ANPR and NOI.
    In addition to this ANPR/NOI and the proposed rules for DAM and 
gear modifications, which are components of the RPA designed to reduce 
the potential for entanglement of right whales, NMFS will conduct the 
following activities to implement and monitor the RPA measures. NMFS 
will provide guidance to participants in the multispecies, spiny 
dogfish, monkfish and lobster fisheries on the requirement to report 
incidental takes of marine mammals and will send a letter to all permit 
holders in these fisheries detailing the protocol for reporting 
entangled or stranded whales. NMFS will also monitor and evaluate the 
effectiveness of the measures prescribed in the RPA, including SAM, 
DAM, and gear modifications and research. If a right whale is killed or 
seriously injured by (1) multispecies, spiny dogfish, or monkfish 
gillnet gear, or by lobster trap gear; (2) gear that is identifiable as 
being approved for use in the multispecies, spiny dogfish, monkfish or 
lobster fisheries; or (3) fishing gear that cannot be identified as 
being associated with a specific fishery, NMFS will consider it 
evidence that the measures outlined in the RPA are not demonstrably 
effective at reducing right whale injuries or death. Similarly, if NMFS 
does not observe a decrease in observed entanglements and scarification 
(scarring of the whale due to gear entanglements and/or interactions), 
NMFS will consider that the performance standards outlined in the RPA 
have not been met.
    NMFS has determined that the management actions outlined in the RPA 
collectively avoid jeopardy. Further information on the RPA is 
available in the BOs (see ADDRESSES).

Marine Mammal Protection Act

    Pursuant to section 118 of the Marine Mammal Protection Act (MMPA), 
NMFS convened the Atlantic Large Whale Take Reduction Team (ALWTRT) to 
develop a plan for reducing the incidental by-catch of large whales in 
commercial fisheries along the Atlantic coast. The ALWTRT consists of 
representatives from the fishing industry, the New England and Mid-
Atlantic Fishery Management Councils, state and Federal resource 
management agencies, the scientific community, and conservation 
organizations. The immediate goal of the ALWTRT, in accordance with the 
1994 amendments to the MMPA, was to draft an ALWTRP to reduce the 
incidental take of the four primary large whale species that interact 
with fisheries--the North Atlantic right whale (Eubalaena glacialis), 
humpback whale (Megaptera novaeangliea), fin whale (Balaenoptera 
physalus), and minke whale (Balaenoptera acutorostrata)--to a level 
less than the potential biological removal level (PBR) within 6 months 
of implementation of the ALWTRT's plan. Potential biological removal 
level means the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable

[[Page 50393]]

population. The 1994 amendments to the MMPA established the goal to 
achieve a zero mortality rate goal (ZMRG) to be achieved within 5 years 
of ALWTRP implementation. For right whales, these two goals are 
essentially the same, because PBR has been defined as zero. Since the 
current incidental take for right whales exceeds the PBR and does not 
achieve ZMRG, additional risk reduction is necessary in order to meet 
the objectives of the MMPA.

Proposed SAM Program

    As described above, NMFS proposes to implement two additional types 
of gear restrictions. One or more areas with predictable annual 
concentrations of right whales will be considered for SAM. These areas 
would have pre-established boundaries, and their closing and opening 
dates will be specified in advance of the right whales' expected 
arrival. This is an expansion of the management approach that 
established the existing Cape Cod Bay and Great South Channel 
restricted areas designed to protect right whales. Areas without 
predictable concentrations of right whales will be potential candidates 
for DAM. Under DAM, restrictions in addition to those already in place 
under SAM would not be implemented unless and until concentrations of 
right whales are found to be present by qualified individuals. If such 
concentrations are observed and the triggering criteria are met, NMFS 
will invoke a temporary restricted area around the animals through 
publication of notification in the Federal Register. The fishing 
industry and public will also be made aware of the restricted areas 
through other notification means, such as NOAA Weather broadcasts. 
Regulations implementing the DAM program will be the subject of a 
separate rulemaking.
    To implement SAM, NMFS must specify the area(s) and times that 
right whales can reasonably be predicted to occur on an annual basis. 
After NMFS has identified such area(s) and time(s), the degree of gear 
restriction within the area(s) must be determined. The intent is to 
make the area(s) large enough to adequately protect right whales, but 
not so large that they restrict gear use with little or no benefit to 
the whales. Similarly, gear use in the identified SAM area(s) must be 
restricted long enough to provide right whales protection from gear 
entanglements, but no longer than necessary. Finally, the level of gear 
restrictions necessary within the SAM area(s) must be sufficient to 
ensure that serious injury or mortality to right whales is avoided. 
These issues, and the alternatives that NMFS has identified to address 
them, are the subject of the remainder of this ANPR and NOI.

Alternatives Under Consideration for Rulemaking

    The SAM alternatives vary by: (1) geographic area, (2) gear 
restrictions, and (3) time intervals. NMFS has analyzed aerial survey 
data collected from 1999-2001 in the area from south of Nantucket 
northward to the Bay of Fundy, and from the New England coast eastward 
to the Hague Line, to determine seasonal and spatial patterns of right 
whale occurrence and concentration. The analytical process was to: (1) 
Identify right whale sightings that met the trigger criterion for 
considering concentrations in need of protection; (2) define the size 
of a core area of right whale occurrence and then draw a 15-nm radius 
buffer circle around that core area; (3) for each year of survey data, 
draw a polygon around the circular buffer zones and join the 
overlapping polygons to create a potential SAM area; (4) overlay all 
three year's potential SAM areas, identify and eliminate those areas 
with sightings in only 1 year, and draw an outline around that 
potential SAM area; and (5) adjust the area to match existing closures 
and zones, such as the existing Northeast multispecies closed areas. 
The triggering criterion was a sighting of three or more right whales 
sufficiently close to one another to achieve a density of 0.04 right 
whales/nm2, which would equal a minimum of three right whales within 75 
nm2. While this approach could not entirely exclude any area, since 
survey data are sparse from some areas of the Gulf of Maine, it did 
identify those areas that are likely to be optimal for the SAM program, 
based on the best information available. Details of NMFS' analysis will 
be included in the EIS.
    At least 1,307 right whale observations were made during the 3 
years of aerial surveys, distributed among 784 group sightings. Few 
were seen in March (1.8 percent) or July (5.6 percent); most were seen 
in May (43.8 percent), June (32.3 percent), and April (16.4 percent), 
though this was due in part to greater survey effort in May-June. 
Sightings in March-April tended to be in the areas surrounding Cape Cod 
(e.g., Provincetown Slope). However, by May right whales were regularly 
sighted along the northern edge of Georges Bank and in the Great South 
Channel. Right whales were consistently seen in all 3 years in this 
area and into Wilkinson Basin through June, with some tendency for them 
to be seen farther to the north as the season progressed. During 1999-
2000, concentrations were found episodically in the Cashes Ledge area--
specifically in April 1999 and June 2000. Similar concentrations in the 
Cashes Ledge area were not found in 2001.
    Concentrations of right whales that would have met the triggering 
criterion (events) occurred 149 times during 1999-2001. Events peaked 
in May (45.0 percent), followed by June (29.5 percent). The fewest 
events occurred in March (4.0 percent) and July (6.0 percent). The 
average number of right whales included in each event was 6.2, and 
varied little between years.
    Overlaying 3 years of SAM zones that could be drawn from the survey 
data suggests that there is similarity between years in habitat use in 
areas outside of the Great South Channel and Cape Cod Bay. Right whales 
were consistently seen in all 3 years in the area from Cape Cod 
eastward to the Hague line, but were seen only sporadically in the 
north (e.g., the Cashes Ledge Area). NMFS then derived a composite SAM 
zone, built from the three annual SAMs, which includes almost all of 
the right whale sightings during 1999-2001. One possible SAM zone 
resulting from NMFS' analysis, which would encompass all of the events 
recorded during April-July 1999-2001, had a total area of about 10,200 
nm\2\, not including other closed areas. If the zone were expanded to 
encompass the buffer area around the events, its area would increase to 
about 17,000 nm\2\.
    When the SAM boundaries were smoothed and realigned with existing 
management zones in the Gulf of Maine, analysis of the data suggested 
the possibility of two smaller SAM zones. One is a core zone of about 
7,000 nm\2\, stretching from Cape Cod eastward to the Hague Line, with 
a consistent pattern of right whale sightings over all 3 survey years. 
The second is a northern zone of about 1,700 nm\2\, which would cover 
additional right whale sightings that occurred sporadically in some 
months of 2 of the 3 survey years.
    The core zone, in combination with the Cape Cod Bay and Great South 
Channel closures, would encompass all but 15 of the 149 events during 
1999-2001. All events from 2001 would be included in this area. Of the 
784 group right whale sightings, only 94 (12 percent) would occur 
outside of this zone. Within this core zone, right whales were more 
likely to be seen in the western part of this area (near Cape Cod Bay 
and the Great South Channel) in March-April than in May-July. This 
suggests that there is a possible east-west break point in the seasonal 
distribution within the core zone at about 69.4 deg. W longitude.

[[Page 50394]]

    In summary, NMFS' initial analysis suggests that there are areas 
within the Gulf of Maine other than Cape Cod Bay and the Great South 
Channel where right whales can be expected to occur each spring. Thus, 
gear restrictions within at least the core SAM zone, or some similarly 
configured zone, could significantly buffer right whales from 
interactions with fishing gear. The potential benefits of a northern 
SAM zone are less clear at this time. While the northern zone 
identified in NMFS' preliminary analysis would encompass additional 
events not included in the core zone, NMFS does not know at this time 
whether these events represent a predictable distribution pattern.
    The SAM zones described above are among the alternatives that NMFS 
will consider in the EIS. Other alternatives would be variations of 
these zones. For example, the core zone could be subdivided such that 
different subzones would be closed at different time intervals, to 
match more precisely the historically determined areas of right whale 
concentration at given times of the year. Four possible variations on 
gear restrictions and times are:
    1. A SAM zone with gear restrictions throughout the designated time 
frame.
    2. A SAM zone with gear restrictions lifted sequentially over time, 
as right whale concentrations move through the zone.
    3. A SAM zone with no gear restrictions initially, but with gear 
restrictions that would be put in place as right whale concentrations 
appear in the zone and would then be lifted as right whale 
concentrations leave the zone.
    4. A SAM zone divided into predetermined sections (subzones), with 
all dates for gear restrictions in each subzone predetermined.
    Other alternatives or variations of the above alternatives 
identified through the NEPA scoping process for the EIS may also be 
considered. Gear restrictions within the SAM zone(s) could range from 
total prohibition of gillnet and lobster trap gear within the zone(s); 
to allowing only gear that has been modified to present a relatively 
low risk of causing serious injury or mortality to right whales to be 
fished within the zone(s); to allowing unmodified gear to be fished, 
but at reduced concentrations and/or using modified practices (e.g., 
tending gillnets).
    At the June 2001, ALWTRT meeting, team members discussed at length 
gear modifications that could be used as gear restrictions within SAM 
zones to reduce the risk of causing serious injury or mortality to 
right whales. The items listed below were discussed but are not 
necessarily consensus recommendations of the ALWTRT. The following 
gillnet gear modifications to reduce risk of entanglement were 
discussed: (1) net tending or generally remaining close enough to the 
gear to respond should the nets entangle an animal, (2) additional 
floatline weak links, exact number to be determined, above the number 
required by the current regulations, (3) use of neutrally buoyant or 
sinking line for buoy lines and groundlines connecting nets and 
anchors, (4) limit effort or the amount of net based on vessel size, 
and (5) limit the type or quantity of net allowed.
    The following lobster trap gear modifications to reduce risk of 
entanglement were discussed: (1) reduced strength buoy line weak link 
for the offshore lobster fisheries, (2) neutrally buoyant or sinking 
groundline for nearshore and offshore lobster fisheries, and (3) 
additional weak link options. Through this ANPR and NOI, NMFS is also 
requesting comments on any additional gear modification concepts for 
further consideration and development.
    The EIS will also analyze the impacts of the SAM alternatives on 
other aspects of the human environment, including their impacts to 
participants of the multispecies, monkfish, spiny dogfish, and lobster 
fisheries. NMFS is requesting comments from the public on these and 
other possible alternatives for SAM that would comply with the RPA 
requirements to protect right whales.

References:

    Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival 
probability threatens the North Atlantic right whale. Proc. Nat. Acad. 
Sci. 96: 3308-3313.

Anticipated Regulatory Changes to Implement SAM

    Although NMFS is still developing the alternatives to be thoroughly 
analyzed in the EIS, NMFS expects that the final SAM measures will 
require that regulations at 50 CFR part 229 be amended as follows:

Sec.  229.32 Atlantic large whale take reduction plan regulations.

    1. Paragraph (c) would be amended to include any additional 
restrictions to lobster gear or its use, specific to SAM, if such 
restrictions are necessary in order for that gear to be used within a 
SAM zone.
    2. Paragraph (d) would be amended to include any additional 
restrictions to anchored gillnet gear or its use, specific to SAM, if 
such restrictions are necessary in order for that gear to be used 
within a SAM zone.
    3. Paragraph (g) would be redesignated paragraph (h) and a new 
paragraph (g) would be added to define the boundaries of the SAM 
zone(s) and any subzones; define the times of the year that the SAM 
zone(s) and any subzones would require restrictions in the use of 
gillnet and lobster trap gear; and provide procedures that NMFS will 
use to implement and lift gear restrictions within the SAM zone(s) or 
subzones.
    Specifics of the regulatory changes will be described in a proposed 
rule, and if adopted would be implemented through a final rule. No 
scoping meetings will be held. NMFS invites comments, through this 
document, on its identified proposed rulemaking and the scope of the 
draft EIS to be prepared.

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

    Dated: September 28, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-24910 Filed 10-1-01; 2:59 pm]
BILLING CODE 3510-22-S