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

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

[Federal Register: October 5, 2007 (Volume 72, Number 193)]
[Rules and Regulations]
[Page 57103-57194]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05oc07-21]
[[Page 57103]]
[[Page 57104]]

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 229, 635, and 648
[Docket No. 0612242977-7216-01; 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: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations
implementing the Atlantic Large Whale Take Reduction Plan (ALWTRP).
This final rule revises the management measures for reducing the
incidental mortality and serious injury to the Northern 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). The measures identified in the ALWTRP are also intended to
benefit minke whales (Balaenoptera acutorostrata), which are not
strategic, but are known to be taken incidentally in commercial
fisheries. This final rule implements additional regulations for the
fisheries currently covered by the ALWTRP (the Northeast sink gillnet,
Northeast/Mid-Atlantic American lobster trap/pot, Mid-Atlantic gillnet,
Southeast Atlantic gillnet, and Southeastern U.S. Atlantic shark
gillnet fisheries) and regulates several fisheries from the MMPA List
of Fisheries for the first time under the ALWTRP, including the
following: 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: The amendments to Sec. Sec. 229.2, 229.3, and 648.264(a)(6)(i)
are effective April 5, 2008 and the amendment to Sec. 635.69(a)(3) is
effective November 5, 2007.
As specified in the regulatory text section of this document,
amendments to Sec. 229.32 are effective as follows:
• Paragraphs (f) introductory text, (f)(2), and (f)(3) are
revised effective November 5, 2007;
• Amendments to Sec. 229.32(f)(1)(iii) and
(g)(4)(i)(B)(1)(vi) are added effective November 5, 2007 to April 5,
2008;
• Paragraphs (f)(1)(ii) and (g)(4)(i)(B)(1)(iii) are removed
and reserved effective November 5, 2007;
• Subsequent revision of Sec. 229.32 is effective April 5,
2008 except for paragraphs (c)(5)(ii)(B), (c)(6)(ii)(B), (c)(7)(ii)(C),
(c)(8)(ii)(B), (c)(9)(ii)(B), (d)(6)(ii)(D), and (d)(7)(ii)(D), which
will be effective October 5, 2008.

ADDRESSES: Copies of the Final 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, progress reports on implementation of the ALWTRP, and the
small entity compliance guide may be obtained by writing Diane
Borggaard, NMFS, Northeast Region, 1 Blackburn Drive, Gloucester, MA
01930. For additional ADDRESSES and Web sites for document availability
see SUPPLEMENTARY INFORMATION section.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to Mary Colligan, Assistant Regional
Administrator for Protected Resources, National Marine Fisheries
Service, Northeast Region, 1 Blackburn Drive, Gloucester, MA 01930 and
by e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

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 http://www.nero.noaa.gov/whaletrp/. Copies of the most recent marine
mammal stock assessment reports may be obtained by writing to Dr.
Richard Merrick, NMFS, 166 Water Street, Woods Hole, MA 02543 or can be
downloaded from the Internet at http://www.nefsc.noaa.gov/psb/assesspdfs.htm.
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

This final rule implements modifications to the ALWTRP as suggested
by the ALWTRT, as well as modifications deemed necessary by NMFS to
meet the goals of the MMPA and ESA. Details concerning the development
and justification of this final rule were provided in the preamble to
the proposed rule (70 FR 35894, June 21, 2005) and are not repeated
here. This final rule also incorporates a recent amendment to the
ALWTRP (72 FR 34632, June 25, 2007) that implemented, with revisions,
previous ALWTRP regulations by expanding the Southeast U.S. Restricted
Area to include waters within 35 nm (64.82 km) of the South Carolina
coast, dividing the Southeast U.S. Restricted Area into Southeast U.S.
Restricted Areas North and South, and modified regulations pertaining
to gillnetting within the Southeast U.S. Restricted Area.

Changes to the Boundaries and Seasons

The ALWTRP gear modifications for regulated areas of the east coast
will extend out to the eastern edge of the exclusive economic zone
(EEZ) (effective April 7, 2008) (See Figures 1 and 2). The ALWTRP will
also modify seasonal requirements along the east coast (effective April
7, 2008). Broad-based gear modifications will be required on a year-
round basis from Maine to 41[deg]18.2' N. lat. and 71[deg]51.5' W.
long. (Watch Hill, RI), south to 40[deg]00' N. lat., and east to the
eastern edge of the EEZ. NMFS will require gear modifications in the
Mid and South Atlantic (called ``Mid/South Atlantic'' from this point)
on a seasonal basis, from September 1 to May 31, when more sightings
are reported and the risk of entanglement with commercial fishing gear
is greater. Under this final rule, a line drawn from 41[deg]18.2' N.
lat. and 71[deg]51.5' W. long. (Watch Hill, RI), south to 40[deg]00' N.
lat., and east to the eastern edge of the EEZ, will serve as the
northern boundary for seasonal gear modifications in the Mid/South
Atlantic and 32[deg]00' N. lat. (near Savannah, GA) east to the eastern
edge of the EEZ will serve as the southern boundary. Portions of the
Mid/South Atlantic Gillnet Waters (i.e., waters within 35 nm (64.82 km)
of the South Carolina coast) will be included in the Southeast U.S.
Restricted Area (a gillnet management area) during the restricted
periods associated with the right whale calving season (i.e. November
15 to April 15).

[[Page 57105]]

NMFS is revising the seasons and boundaries for the southeast from
November 15 to April 15 for all ALWTRP regulated fisheries, except for
the gillnet fisheries modified through the recent amendment to the
ALWTRP (72 FR 34632, June 25, 2007), between 32[deg]00' N. lat. (near
Savannah, GA) and 29[deg]00' N. lat. (near New Smyrna Beach, FL) east
to the eastern edge of the EEZ. From December 1 to March 31,
restrictions will be required for the Atlantic blue crab and Atlantic
mixed species trap/pot fisheries and the Southeast Atlantic gillnet
fishery between 29[deg]00' N. lat. and 27[deg]51' N. lat. (near
Sebastian Inlet, FL) east to the eastern edge of the EEZ, and for the
Southeastern U.S. Atlantic shark gillnet fishery between 29[deg]00' N.
lat. and 26[deg]46.50' N. lat. (near West Palm Beach, FL) east to the
eastern edge of the EEZ. The Southeastern U.S. shark gillnet fishery as
regulated in this final rule includes shark gillnetting with 5-inch
(12.7-cm) or greater stretched mesh south of the South Carolina/Georgia
border.

Changes to the Lobster Trap/Pot Gear Requirements

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 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) will continue to
require one buoy line on trawls of 5 or fewer traps.
For Northern Inshore State Trap/Pot Waters and the state portion of
the Cape Cod Bay Restricted Area (May 16-December 31), this final rule
will 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 (except traps/pots,
anchors, and leadline woven into the buoy line) attached to the buoy
line (effective April 7, 2008).
This final rule will 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 Lobster Management Area (LMA) 2 and the Outer Cape
(July 1-March 31) from 2,000 lb (907.2 kg) to 600 lb (272.2 kg)
(effective April 7, 2008). All fishermen in the nearshore portion of
the Great South Channel Restricted Area will then be required to have a
600-lb (272.2-kg) weak link on all flotation devices and/or weighted
devices (except traps/pots, anchors, and leadline woven into the buoy
line) attached to the buoy line.

Offshore Trap/Pot Waters Area and Great South Channel Restricted Area
(Offshore Portion)

This final rule will 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. lat. (just north of Cape Hatteras, NC) to
27[deg]51' N. lat. and then extending out to the eastern edge of the
EEZ (effective April 7, 2008). In addition to the current requirements,
this final rule will lower the maximum breaking strength of weak links
and require weak links with appropriate breaking strength on all
flotation devices and/or weighted devices (except traps/pots, anchors,
and leadline woven into the buoy line) attached to the buoy line in
Offshore Trap/Pot Waters that overlaps with the LMA 3 (including the
area known as the Area 2/3 Overlap and Area 3/5 Overlap) 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 April 7, 2008).

Southern Nearshore Trap/Pot Waters Area

This final rule will 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. lat. to 27[deg]51' N. lat. and then
extending the boundary inshore to the shoreline or exempted areas. The
Southern Nearshore Trap/Pot Waters is defined by LMAs 4, 5, and 6
(except for the exempted areas) north of 35[deg]30' N. lat. and by the
100-fathom (600-ft or 182.9-m) line west to the shoreline or exempted
areas south of 35[deg]30' N. lat. In addition to the current
requirements, this final rule will implement the regulations currently
required in the Southern Nearshore Trap/Pot Waters in the portion of
LMA 6 that is neither exempted under the ALWTRP waters (i.e., mouth of
Long Island Sound) nor currently regulated by the ALWTRP (effective
April 7, 2008). This final rule will also require a 600-lb (272.2-kg)
weak link on all flotation devices and/or weighted devices (except
traps/pots, anchors, and leadline woven into the buoy line) attached to
the buoy line.

Changes to the Other Trap/Pot Gear Requirements

Effective April 7, 2008, NMFS will regulate the following trap/pot
fisheries under the ALWTRP (designated as ``Other Trap/Pot
Fisheries''): 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. Through this final
rule, these Other Trap/Pot fisheries will be required to comply with
current ALWTRP regulations, including the universal gear modifications,
and will follow the same area designations and requirements (e.g., weak
links, Seasonal Area Management (SAM) program requirements as modified
in this final rule, and Cape Cod Bay and Great South Channel Area
restrictions) currently required and revised for the lobster trap/pot
fisheries covered by the ALWTRP. Where applicable, these fisheries will
also be regulated under the ALWTRP within the portion of LMA 6 that is
not exempted by the ALWTRP (i.e., mouth of Long Island Sound). In
addition to complying with the current ALWTRP requirements, the Other
Trap/Pot Fisheries will be required to comply with the modifications
for the lobster trap/pot fishery specified in this final rule
(effective April 7, 2008) except for the groundline requirements where
applicable as noted under the ``Broad-Based Gear Modifications''
section below.

Red Crab Trap/Pot Gear

Through this final rule, the maximum weak link breaking strength
will be lowered from 3,780 lb (1,714.6 kg) to 2,000 lb (907.2 kg). A
2,000-lb (907.2-kg) weak link will be required on all flotation devices
and/or weighted devices (except traps/pots, anchors, and leadline woven
into the buoy line) attached to the buoy line in the red crab fishery
(effective April 7, 2008).

Changes to the All Trap/Pot Gear Requirements

Broad-Based Gear Modifications

The majority of the broad-based gear modifications identified in
this final rule for trap/pot gear will become effective six months
after publication of this final rule, April 7, 2008, except for the
groundline requirement that will be phased-in and effective October 6,
2008, except in SAM and Cape Cod Bay Restricted Areas. When the
majority of the broad-based gear modifications become effective on
April 7, 2008, the Dynamic Area Management (DAM) program will be
eliminated. When the sinking/neutrally buoyant groundline

[[Page 57106]]

requirement becomes fully effective, October 6, 2008, this final rule
will eliminate the Seasonal Area Management (SAM) program. However,
until October 6, 2008, the Other Trap/Pot Fisheries will be subject to
SAM program requirements (see modifications to area and gear
requirements as noted in this final rule).

ALWTRP-Regulated Trap/Pot Waters

Due to the addition of new trap/pot fisheries, ALWTRP-Regulated
Lobster Waters will be re-designated as ALWTRP-Regulated Trap/Pot
Waters to reflect the broader application of ALWTRP requirements.
Accordingly, under the final rule, the term ``lobster trap/pot'' will
be replaced with ``trap/pot'' where it appears in the regulations
implementing the ALWTRP.

Boundaries and Seasons

Under this final rule, the areas will be created by establishing a
line that is bounded on the west by a line running from 41[deg]18.2' N.
lat. and 71[deg]51.5' W. long. (Watch Hill, RI), south to 40[deg]00' N.
lat., and east to the eastern edge of the EEZ. The gear fished in the
area north of this line will be required to incorporate current and
revised broad-based gear modifications year-round; the gear fished in
the area south of this line to 32[deg]00' N. lat. and east to the
eastern edge of the EEZ will require gear modifications from September
1 to May 31 (effective April 7, 2008). Areas south of 32[deg]00' N.
lat. will require gear modifications in the following areas and during
the following seasonal time periods: between the 32[deg]00' N. lat. and
29[deg]00' N. lat. east to the eastern edge of the EEZ from November
15-April 15; between 29[deg]00' N. lat. and 27[deg]51' N. lat. east to
the eastern edge of the EEZ from December 1 through March 31 (effective
April 7, 2008).

Sinking/Neutrally Buoyant Groundlines

Under this final rule, the lobster trap/pot fishery currently
regulated by the ALWTRP, as well as the other trap/pot fisheries added
through this final rule, will be required to use groundline composed
entirely of sinking and/or neutrally buoyant line in the applicable
areas and time periods effective twelve months after publication of
this final rule (unless otherwise required in the Cape Cod Bay
Restricted Area for trap/pots [January 1-May 15]). The sinking and/or
neutrally buoyant groundline requirement will be effective in expanded
SAM areas effective 6 months after publication of this final rule.
Based on public comments received regarding the line between traps
and anchors, and a review of the groundline definition, NMFS finds that
the definition does not cover this portion of the gear. (The groundline
definition ``with reference to trap/pot gear, means a line connecting
traps in a trap trawl, and with reference to gillnet gear, means a line
connecting a gillnet or gillnet bridle to an anchor or buoy line.'')
NMFS did not specifically seek nor receive public comment on the
groundline definition related to the line between traps and anchors,
and accordingly cannot make any adjustments to the definition at this
time. NMFS will be conducting further investigations of this gear
configuration through contact with fishermen and states to determine
how common a practice it is in trap/pot fisheries, determine the type
of line used in this portion of the gear, quantify potential risk if
floating line is used, determine any new issues that may be raised by
requiring sinking and/or neutrally buoyant line in this area of the
gear, and discuss the appropriate management response with the ALWTRT
at the next meeting.

Weak Links

Through this final rule, weak links of the appropriate breaking
strength will be required on all flotation devices and/or weighted
devices (except traps/pots, anchors, and leadline woven into the buoy
line) attached to the buoy line (effective April 7, 2008) for all
ALWTRP-regulated areas and fisheries during the time periods when
ALWTRP restrictions apply. The Other Trap/Pot Fisheries added to the
ALWTRP by this final rule will also be subject to the weak link
requirements.

Changes to the Gillnet Gear Requirements

Other Northeast Gillnet Waters, Stellwagen Bank/Jeffreys Ledge
Restricted Area, Cape Cod Bay Restricted Area (May 16-December 31),
Great South Channel Restricted Area (July 1-March 31), and Great South
Channel Sliver Restricted Area

Anchored Gillnets
Under this final rule, NMFS will require an 1,100-lb (499.0-kg)
weak link on all flotation devices and/or weighted devices (except
gillnets, anchors, and leadline woven into the buoy line) attached to
the buoy line (effective April 7, 2008). For anchored gillnets in the
Northeast sink gillnet fishery, NMFS will also require an increase in
the number of weak links per gillnet net panel from one weak link with
a maximum breaking strength of 1,100 lb (499.0 kg) to five or more weak
links with a maximum breaking strength of 1,100 lb (499.0 kg),
depending on the length of the gillnet net panel (effective April 7,
2008). The weak link requirement will apply to all variations in panel
size. For example, gillnet net panels of 50 fathoms (300 ft or 91.4 m)
or less in length, will be required to have one weak link in the
floatline at the center of the gillnet net panel. For gillnet net
panels greater than 50 fathoms (300 ft or 91.4 m), weak links will 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 will apply: (1) Weak links will be
placed in the center of each of the up and down lines at each end of
each gillnet net panel, and (2) one floatline weak link will be placed
as close as possible to each end of the gillnet net panel just before
the floatline meets the up and down line. Up and down line means the
line that connects the floatline and leadline at the end of each
gillnet net panel.
In addition to the above configuration for gillnet net panel weak
links, NMFS will allow the following option for all variations in panel
size: (1) Weak links will be placed in the center of each of the up and
down lines at each end of each gillnet net panel, (2) weak links will
be placed between the floatline tie loops between gillnet net panels,
and (3) weak links will be placed between the floatline tie loop and
bridle or buoy line at each end of a net string (depending on how the
gear is configured) (see Figure 3). Tie loops mean the loops on a
gillnet net panel used to connect gillnet net panels to the buoy line,
groundline, bridle, or each other. NMFS will also be allowing the
optional configuration in the current SAM areas, as well as in
established DAM zones when a gear modification option is selected
(effective November 5, 2007). See the Changes from Proposed Rule
section (6) below for further information on the rationale for this
optional configuration, as well as for allowing it in the current SAM
areas and established DAM zones.
For the above configuration options, weak links must be chosen from
the following combinations approved by NMFS: Plastic weak links or rope
of appropriate breaking strength. If rope of appropriate breaking
strength is used throughout the floatline or as the up and down line,
or if no up and down line is present, then individual weak links are
not required on the floatline or up and down line. In addition, all
anchored gillnets, regardless of the number of gillnet net panels, will
be required to be securely anchored with the holding

[[Page 57107]]

capacity equal to or greater than a 22-lb (10.0-kg) Danforth-style
anchor at each end of the net string (effective April 7, 2008). Dead
weights and heavy leadline will not be available as an optional
anchoring system. The same configuration option would be required for
all gillnet net panels in a string.

Mid/South Atlantic Gillnet Waters

Under this final rule, the Mid-Atlantic Coastal Waters Area will be
expanded and renamed to include waters currently unregulated by the
ALWTRP that include a component of the U.S. Mid-Atlantic gillnet
fishery and Southeast Atlantic gillnet fishery. Specifically, gillnet
fisheries in the waters from 72[deg]30' W. long., south to the
Virginia/North Carolina border, east to the eastern edge of the EEZ,
and extending south to 32[deg]00' N. lat. and out to the eastern edge
of the EEZ will be referred to as Mid/South Atlantic Gillnet Waters
(effective April 7, 2008). Portions of the Mid/South Atlantic Gillnet
Waters (i.e., waters within 35 nm (64.82 km) of the South Carolina
coast) are also included in the Southeast U.S. Restricted Area during
the November 15 to April 15 right whale calving season.

Anchored Gillnets

Under this final rule, all anchored gillnets in the Mid/South
Atlantic Gillnet Waters must have an 1,100-lb (499.0-kg) weak link on
all flotation devices and/or weighted devices (except gillnets,
anchors, and leadline woven into the buoy line) attached to the buoy
line (effective April 7, 2008). Additionally, if gillnets are not
returned to port with the vessel they must contain five or more weak
links depending on the length of the gillnet net panel, with a maximum
breaking strength no greater than 1,100 lb (499.0 kg) for each gillnet
net panel; and be anchored at each end with an anchor capable of the
holding capacity equal to or greater than a 22-lb (10.0-kg) Danforth-
style anchor (effective April 7, 2008). The configuration options for
gillnet net panel weak links and anchoring are similar to that
specified for anchored gillnets in the Other Northeast Gillnet Waters
section of this rule. The same configuration option would be required
for all gillnet net panels in a string. All gillnets, even if returned
to port with the vessel, must also contain one weak link with a maximum
breaking strength no greater than 1,100 lb (499.0 kg) in the center of
the floatline of each gillnet net panel up to and including 50 fathoms
(300 ft or 91.4 m) in length, or at least every 25 fathoms (150 ft or
45.7 m) along the floatline for longer panels in previously unregulated
waters (effective April 7, 2008).
Gillnets within 300 yards (900 ft or 274.3 m) of the shoreline of
North Carolina that are not returned to port with the vessel will have
an additional option for setting their gear. Gillnets set in this area
may configure their gear as follows: five or more weak links per
gillnet net panel (depending on the length of the gillnet net panel)
with a maximum breaking strength of 600 lb (272.2 kg) must be deployed,
and be anchored with the holding capacity equal to or greater than an
8-lb (3.6-kg) Danforth-style anchor on the offshore end of the net
string and with a dead weight equal to or greater than 31-lb (14.1-kg)
on the inshore end of the net string (effective April 7, 2008). The
entire net string must be set within 300 yards (900 ft or 274.3 m) of
the beach in North Carolina for this optional anchoring system and
gillnet net panel weak link configuration. This configuration is in
addition to the final configuration of five or more weak links per
gillnet net panel (depending on the length of the gillnet net panel)
with a maximum breaking strength of 1,100-lb (499.0-kg), and anchored
with the holding capacity equal to or greater than a 22-lb (10.0-kg)
Danforth-style anchor on each end of the net string. Specifics on the
configuration options for the placement of gillnet net panel weak links
can be found in the Other Northeast Gillnet Waters section of this
rule.
At this time, NMFS is not regulating gillnets that are anchored to
the beach and subsequently hauled onto the beach to retrieve the catch.
This fishing technique is known to occur on the beaches of North
Carolina. NMFS will be discussing the appropriate management measures
for this unique fishery with the ALWTRT at a future meeting. In the
meantime, NMFS will be conducting outreach and research on this fishery
to support future discussions with the ALWTRT. NMFS will be
coordinating with the North Carolina Department of Marine Fisheries to
revise the definition for beach -based gear to help ensure landings are
reported accurately for beach-based gear versus gillnets, among other
issues.

Drift Gillnets

Under this final rule, current requirements for drift gillnet gear
in Mid/South Atlantic Gillnet Waters are expanded in time and space as
noted in the Boundaries and Seasons section above (effective April 7,
2008).

Other Southeast Gillnet Waters

Under this final rule, the management area for the Southeast
Atlantic gillnet and Southeastern U.S. Atlantic shark gillnet fisheries
off Georgia and Florida will be expanded and renamed (effective April
7, 2008). Specifically, this final rule will define the waters east of
80[deg]00' W. long. from 32[deg]00' N. lat. south to 26[deg]46.5' N.
lat. and out to the eastern edge of the EEZ as one ALWTRP management
area named ``Other Southeast Gillnet Waters''. The expansion of this
area east to the eastern edge of the EEZ will be consistent with the
ALWTRP area boundary expansion in the Mid-Atlantic.
Under this final rule, NMFS will establish the seasonal restricted
time period in Other Southeast Gillnet Waters (effective April 7,
2008). ALWTRP regulations for the Southeast Atlantic gillnet fishery
operating in the Other Southeast Gillnet Waters between 32[deg]00' N.
lat. to 29[deg]00' N. lat. (near New Smyrna Beach, FL) will be
effective from November 15 to April 15, and between 29[deg]00' N. lat.
and 27[deg]51' N. lat. will be effective from December 1 to March 31.
For the Southeastern U.S. Atlantic shark gillnet fishery, ALWTRP
regulations in the Other Southeast Gillnet Waters between 32[deg]00' N.
lat. to 29[deg]00' N. lat. will be effective from November 15 to April
15, and between 29[deg]00' N. lat. and 26[deg]46.5' N. lat. will be
effective from December 1 to March 31.

Southeast Atlantic Gillnet Fishery

All gillnet gear in Other Southeast Gillnet Waters will be
regulated in the same manner as the Mid/South Atlantic anchored gillnet
fishery (effective April 7, 2008). The regulated waters for the
Southeast Atlantic gillnet fishery south of 32[deg]00' N. lat. to
27[deg]51' N. lat. and east from 80[deg]00' W. long. to the eastern
edge of the EEZ will be required to comply with the ALWTRP universal
gear requirements (e.g., no buoy line floating at the surface and no
wet storage of gear), as well as the following: gillnets must have all
flotation devices and/or weighted devices (except gillnets, anchors,
and leadline woven into the buoy line) attached to the buoy line with a
weak link having a maximum breaking strength no greater than 1,100 lb
(499.0 kg); and have all gillnet net panels containing weak links with
a maximum breaking strength no greater than 1,100 lb (499.0 kg) in the
center of each floatline of each 50 fathom (300 ft or 91.4m) gillnet
net panel or every 25 fathoms (150 ft or 45.7 m) for longer panels
(effective April 7, 2008).
In addition, under this final rule, all gillnets in the Other
Southeast Gillnet

[[Page 57108]]

Waters that are not returned to port with the vessel will be required
to contain five or more weak links, depending on the length of the
gillnet net panel, with a maximum breaking strength no greater than
1,100 lb (499.0 kg) for each gillnet net panel; and be anchored at each
end with an anchor with the holding capacity equal to or greater than a
22-lb (10.0-kg) Danforth-style anchor (effective April 7, 2008). The
configuration options for gillnet net panel weak links and anchoring
are similar to that specified for anchored gillnets in the Other
Northeast Gillnet Waters section of this final rule. The same
configuration option would be required for all gillnet net panels in a
string.

Southeastern U.S. Atlantic Shark Gillnet Fishery

For the Southeastern U.S. Atlantic Shark gillnet fishery operating
in Other Southeast Gillnet Waters, the following requirements will be
in effect: (1) No net is set within 3 nautical miles (5.6 km) of a
right, humpback, or fin whale; and (2) If a right, humpback, or fin
whale moves within 3 nautical miles (5.6 km) of the set gear, the gear
is removed immediately from the water (effective April 7, 2008).

Southeast U.S. Restricted Area (N and S) and Southeast U.S. Monitoring
Area

Under this final rule, the management areas for the Southeastern
U.S. Atlantic shark gillnet and Southeast Atlantic gillnet fishery
management areas will be redefined (effective April 7, 2008).
Specifically, for the Southeastern U.S. Atlantic shark gillnet fishery,
the regulated waters landward of 80[deg]00' W. long. from 27[deg]51' N.
lat. to 26[deg]46.5' N. lat. will be designated as the Southeast U.S.
Monitoring Area (rather than the Southeast U.S. Observer Area). For
both the Southeastern U.S. Atlantic shark gillnet and Southeast
Atlantic gillnet fisheries, the regulated waters landward of 80[deg]00'
W. long. from 32[deg]00' N. lat. to 27[deg]51' N. lat. will be
designated as the Southeast U.S. Restricted Area, consisting of a
northern area ``N'' between 32[deg]00' N. lat. and 29[deg]00' N. lat.
and a southern area ``S'' between 29[deg]00' N. lat. and 27[deg]51' N.
lat.
Under this final rule, the management areas for gillnet fisheries
will be regulated with rolling restrictions (effective April 7, 2008).
The Southeastern U.S. Atlantic shark gillnet and Southeast Atlantic
gillnet fisheries will be regulated in waters from 32[deg]00' N. lat.
to 29[deg]00' N. lat. (near New Smyrna Beach, FL) from November 15
through April 15. The Southeastern U.S. Atlantic shark gillnet fishery
will be regulated in waters from 29[deg]00' N. lat. to 26[deg]46.5' N.
from December 1 through March 31, and the Southeast Atlantic gillnet
fishery will be regulated in waters from 29[deg]00' N. lat. to
27[deg]51' N. lat. from December 1 through March 31.
NMFS is also allowing the use of vessel monitoring system (VMS) in
lieu of the 100-percent observer coverage requirement for the
Southeastern U.S. Atlantic shark gillnets in the newly defined
Southeast U.S. Monitoring Area (27[deg]51' N. lat. to 26[deg]46.5' N.)
under the ALWTRP (effective November 5, 2007). Although 100-percent
observer coverage will no longer be required in this area, NMFS will
retain observer coverage sufficient to produce statistically reliable
results for evaluating the impact of the fishery on protected
resources. In light of the revised change from 100-percent observer
coverage to VMS, NMFS is changing the name of the ``Southeast U.S.
Observer Area'' to the ``Southeast U.S. Monitoring Area.''
Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks
(68 FR 74746, December 24, 2003; 69 FR 19979, April 15, 2004; and 69 FR
28106, May 18, 2004) requires gillnet vessels issued directed shark
limited access permits that have gillnet gear on board, regardless of
their location, to employ a NMFS approved VMS during the right whale
calving season specified in the ALWTRP regulations. Currently, as
stated in the August 17, 2004, final rule (69 FR 51010, August 17,
2004) specifying November 15, 2004, as the effective date of this
requirement, the applicable right whale calving season is identified as
November 15 through March 31. This final rule will change the right
whale season specified in those regulations for the Southeast U.S.
Monitoring Area to December 1 through March 31 and amend the regulatory
text in 50 CFR 635.69(a)(3) regarding the Highly Migratory Species
(HMS) VMS requirement for Southeastern U.S. Atlantic shark gillnet
vessels.

Changes to the Other Gillnet Gear Requirements

Northeast Anchored Float Gillnet Fishery

This final rule will regulate the Northeast anchored float gillnet
fishery (gillnets anchored to the ocean floor with lines running from
the anchors to the nets at the surface) according to the requirements
for the Northeast anchored gillnet fishery requirements (effective
April 7, 2008). The Northeast anchored float gillnet fishery will be
subject to the SAM program as modified in this final rule until twelve
months after publication of this final rule, and to seasonal closures
in right whale restricted areas. Specifically, fishermen using
Northeast anchored float gillnets will be prohibited from fishing
inside the Cape Cod Bay Restricted Area annually from January 1 through
May 15, and inside the Great South Channel Restricted Area annually
from April 1 through June 30.

Northeast Drift Gillnet Fishery

This final rule will regulate the Northeast drift gillnet fishery
(i.e., nets that are present at the ocean surface and are not anchored
to the ocean floor on either end) according to the requirements for the
Mid-Atlantic drift gillnet fishery (effective April 7, 2008). The
Northeast drift gillnet fishery will not be subject to the SAM program,
but drift gillnets will be prohibited from Cape Cod Bay Restricted Area
from January 1 through May 15 and from the Great South Channel
Restricted Area from April 1 through June 30 (similar to the
requirements for anchored gillnet), except for the Sliver Area, where
restricted drift gillnet fishing will be allowed.

Changes to the All Gillnet Gear Requirements

Broad-Based Gear Modifications

Most of the broad-based gear modifications for gillnet gear
identified in this final rule will become effective six months after
publication of this final rule, April 7, 2008, except for the
groundline requirement discussed below, which will be phased-in and
effective twelve months after publication of this final rule (except in
SAM areas), October 6, 2008. When the majority of the broad-based gear
modifications become effective on April 7, 2008, the DAM program will
be eliminated. When the sinking/neutrally buoyant groundline
requirement becomes fully effective, October 6, 2008, this final rule
will eliminate the SAM program. However, until this occurs, some of the
other gillnet fisheries that will be added to the ALWTRP will be
subject to the SAM program (see modifications to area and gear
requirements as noted in this final rule).

Boundaries and Seasons

Under this final rule, an area bounded on the west by a line
running from 41[deg]18.2' N. lat. and 71[deg]51.5' W. long. (Watch
Hill, RI), south to 40[deg]00' N. lat., and east to the eastern edge of
the EEZ will be created. The gillnet gear fished in the area north of
this line will be required to incorporate current and revised broad-
based gear modifications year-round. Gillnet gear fished in the

[[Page 57109]]

area south of this line to 32[deg]00' N. lat. and east to the eastern
edge of the EEZ will be required to comply with the broad-based gear
modifications detailed above in Mid/South Atlantic Gillnet Waters from
September 1 to May 31. However, portions of the Mid/South Atlantic
Gillnet Waters (i.e., waters within 35 nm (64.82 km) of the South
Carolina coast) will be included in the Southeast U.S. Restricted Area
during the November 15 to April 15 right whale calving season. Gillnet
fishing in the area south of 32[deg]00' N. lat. will be required to
comply with the broad-based gear modifications in the following areas
and seasonal time periods: All gillnet fisheries (Southeast Atlantic
and Southeastern U.S. Atlantic shark) between 32[deg]00' N. lat. and
29[deg]00' N. lat. from November 15-April 15; Southeast Atlantic
gillnet fishery between 29[deg]00' N. lat. and 27[deg]51' N. lat. east
to the eastern edge of the EEZ from December 1-March 31; and
Southeastern U.S. Atlantic shark gillnet fisheries between 29[deg]00'
N. lat. and 26[deg]46.5' N. lat. east to the eastern edge of the EEZ
from December 1-March 31.

Sinking/Neutrally Buoyant Groundlines

Under this final rule, the Northeast anchored gillnet, Mid-Atlantic
anchored gillnet, and Southeast Atlantic gillnet fisheries currently
regulated by the ALWTRP, and the Northeast anchored float gillnet
fishery, which will be added by this final rule, will be required to
use groundline composed entirely of sinking and/or neutrally buoyant
line in the areas and time periods covered under the ALWTRP effective
on October 6, 2008. The sinking and/or neutrally buoyant groundline
requirement will be effective in expanded SAM areas effective on April
7, 2008.

Weak Links

Under this final rule, to further reduce the risk of serious injury
and mortality from entanglement in gillnet gear, weak links having a
maximum breaking strength of 1,100 lb (499.0 kg) will be required on
all flotation devices and/or weighted devices (except gillnets,
anchors, and leadline woven into the buoy line) attached to the buoy
line (effective April 7, 2008). This requirement will apply to all
current and revised ALWTRP regulated areas and gillnet fisheries. The
weak link requirement is intended to reduce the risk of entanglement
and serious injury or mortality due to entanglements in buoy lines and
surface systems.

Revised SAM Program

The final rule will amend the SAM program by establishing new
boundaries for the SAM areas and revising the gear modifications
required for fishing within these areas. The changes to the SAM program
described in this final rule will become effective on April 7, 2008, to
protect right whales. The SAM program will be eliminated October 6,
2008, when all of the broad-based gear modifications are effective.
This final rule will modify the existing coordinates for the SAM
areas. Specifically, the western boundary of SAM West will be extended
westward to encompass seasonal aggregations of right whales that occur
north of the Cape Cod Bay Restricted Area. Similarly, the southern
boundary of SAM West will be extended further south, adjoining the
Great South Channel Restricted Sliver Area, to encompass seasonal
aggregations of right whales that occur south of the current SAM West
and west of the Great South Channel Restricted Area. Finally, the
southern boundary of SAM East would be revised to include the Great
South Channel Restricted Area including the Sliver Area, but will
exclude the southeast corner of the existing SAM East area where there
have been very few right whale sightings. The western boundary of SAM
East will be extended west to 69[deg] 45'W. long. to encompass right
whales that might remain in SAM West in May (after the SAM West area
restrictions have expired) (Table 1; Figure 8).

Table 1.--Seasonal Area Management
----------------------------------------------------------------------------------------------------------------
Point Latitude (North) Longitude (West)
----------------------------------------------------------------------------------------------------------------
SAM West Polygon--in Effect From March 1-April 30
----------------------------------------------------------------------------------------------------------------
1W........................................... 42[deg]30'...................... 70[deg]30' (NW Corner)
2W........................................... 42[deg]30'...................... 69[deg]24'
3W........................................... 41[deg]48.9'.................... 69[deg]24'
4W........................................... 41[deg]40'...................... 69[deg]45'
5W........................................... 41[deg]40'...................... 69[deg]57' along the eastern
shoreline of Cape Cod to
6W........................................... 42[deg]04.8'.................... 70[deg]10'
7W........................................... 42[deg]12'...................... 70[deg]15'
8W........................................... 42[deg]12'...................... 70[deg]30'
1W........................................... 42[deg]30'...................... 70[deg]30' (NW Corner)
----------------------------------------------------------------------------------------------------------------
SAM East Polygon--in Effect From May 1-July 31
----------------------------------------------------------------------------------------------------------------
1E........................................... 42[deg]30'...................... 69[deg]45' (NW Corner)
2E........................................... 42[deg]30'...................... 67[deg]27'
3E........................................... 42[deg]09'...................... 67[deg]08.4'
4E........................................... 41[deg]00'...................... 69[deg]05'
5E........................................... 41[deg]40'...................... 69[deg]45'
1E........................................... 42[deg]30'...................... 69[deg]45' (NW Corner)
----------------------------------------------------------------------------------------------------------------

Revised SAM Gear Modifications

In addition to the changes discussed above, this final rule will
revise the gear modifications required for fishing within the SAM areas
during the applicable time periods. Under this final rule, NMFS will
allow the use of two buoy lines per trap/pot trawl or per net string,
allow the use of floating line on the bottom one-third or less of the
buoy line, and allow two configuration options for gillnet net panel
weak links. The same configuration option would be required for all
gillnet net panels in a string.

Changes to the SAM Program for All Trap/Pot Gear

Under this final rule, in addition to the measures revised for
trap/pot fisheries, the following requirements specific to the SAM and
DAM programs would apply. The SAM areas will be

[[Page 57110]]

expanded and all lobster trap/pot fisheries operating within these
areas during the restricted time periods would be subject to the
current SAM restrictions, plus the following: A second buoy line will
be allowed and the bottom one-third of the buoy line may consist of
floating line. In addition, the trap/pot fisheries subject to the SAM
program will be expanded to include: hagfish, finfish (black sea bass,
scup, tautog, cod, haddock, pollock redfish, and white hake), conch/
whelk, shrimp, red, blue, rock, and Jonah crab. The expanded SAM area
will include the Great South Channel Restricted Area; therefore, trap/
pot gear will be subject to the SAM program inside right whale
restricted areas during time periods when the requirements for fishing
inside these areas are no more conservative than the surrounding waters
(i.e., when the protections of right whale restricted areas disappear).
However, the more restrictive Great South Channel Restricted Trap/Pot
Area closure (April 1 through June 30) will supercede the SAM program.
As a result, gear modifications for fishing with trap/pot gear in the
SAM area will apply in the Great South Channel Restricted Trap/Pot Area
from July 1 through July 31. The DAM program will be eliminated, and
replaced with the expanded SAM areas (effective April 7, 2008).

Changes to the SAM Program for Gillnet Gear

Under this final rule, in addition to the measures revised for
gillnet fisheries, the following requirements specific to the SAM and
DAM programs would apply. The SAM areas will be expanded, and all
gillnet fisheries operating within these areas during the restricted
time periods will be subject to the current SAM restrictions, plus the
following: A second buoy line will be allowed and the bottom one-third
of the buoy line may be composed of floating line. In addition, gillnet
fisheries would be allowed two configuration options for gillnet net
panel weak links as noted in the Other Northeast Gillnet Waters section
of this rule. The gillnet fisheries regulated under the SAM program
will be expanded to include Northeast anchored float gillnets. The
expanded SAM area will include the Great South Channel Restricted Area;
therefore, gillnet gear will be subject to the SAM program inside right
whale restricted areas during time periods when the requirements for
fishing inside these areas are no more conservative than the
surrounding waters (i.e., when the protections of right whale
restricted areas disappear). However, the more restrictive Great South
Channel Restricted Gillnet Area closure (April 1 through June 30) will
supercede the SAM program. As a result, gear modifications for fishing
with gillnet gear in the SAM area will apply in the Great South Channel
Restricted Gillnet Area from July 1 through July 31, and in the Great
South Channel Sliver Restricted Area from May 1 through July 31. The
DAM program will be eliminated, and replaced with the expanded SAM
areas (effective April 7, 2008).

Other Changes for All Trap/Pot and Gillnet Gear

DAM Program

The majority of the modifications in this final rule will become
effective on April 7, 2008, including the replacement of the DAM
program. Consequently, on April 7, 2008, when the SAM areas are
expanded, the expanded SAM program will replace the DAM program.
However, until April 7, 2008, the currently regulated trap/pot and
gillnet fisheries, will be subject to both the SAM and DAM programs.
After April 7, 2008, the currently regulated trap/pot and gillnet
fisheries, as well as those added to the ALWTRP, will be subject to the
expanded SAM program.

Groundlines

Under this final rule, for both trap/pot and gillnet fisheries, the
SAM program will be eliminated and replaced with broad-based gear
modifications, including a requirement that all groundlines must be
composed of sinking and/or neutrally buoyant line, effective on October
6, 2008 (unless otherwise required in the Cape Cod Bay Restricted Area
for trap/pot (January 1-May 15) or SAM areas).

Gear Marking

Under this final rule, NMFS will expand requirements to fisheries
and areas not previously regulated under the ALWTRP or required to mark
gear such as the following: Northeast drift gillnet; Northeast anchored
float gillnet; Northern Inshore State Trap/Pot Waters; LMA 6 portion of
Southern Nearshore Trap/Pot Waters; Mid/South Atlantic Gillnet Waters;
and Other Southeast Gillnet Waters (effective April 7, 2008). The gear
marking scheme will require one 4-inch (10.2 cm) colored mark midway
along the buoy line. Additionally, the gear marking scheme will require
all surface buoys to identify the vessel registration number, vessel
documentation number, Federal permit number, or whatever positive
identification marking is required by the vessel's home-port state
(effective April 7, 2008). Under this final rule, the color and marking
scheme for nets used in the Southeastern U.S. Atlantic shark gillnet
fishery will remain status quo and only buoy lines greater than 4 feet
(1.2 m) in length would need to be marked for this fishery.

Trap/Pot Gear Marking Colors

The ALWTRP will require fishermen to mark their trap/pot buoy lines
with one red 4-inch (10.2 cm) mark while they fish in the following
management areas: Cape Cod Bay Restricted Area, Northern Nearshore
Trap/Pot Waters, and Stellwagen Bank/Jeffreys Ledge. To remain
consistent with the gear marking color scheme in the North Atlantic,
under this final rule, NMFS will require red marking on the buoy lines
of trap/pot gear fished in Northern Inshore State Trap/Pot Waters. The
trap/pot gear marking color in the Great South Channel Restricted Area
is black. However, under this final rule, for consistency with nearby
management areas, the Great South Channel Restricted Area gear marking
color will be either black or red, depending on the area of overlap
with offshore (i.e., LMA 2/3 Overlap and LMA 3) and nearshore areas
(i.e., LMA 2 and the Outer Cape), respectively. The gear marking colors
for trap/pot gear in the Southern Nearshore Trap/Pot Waters and
Offshore Trap/Pot Waters will remain orange and black, respectively.

Gillnet Gear Marking Colors

Under this final rule, for consistency with the current gillnet
gear marking scheme in the Northeast Atlantic, NMFS will require one 4-
inch (10.2-cm) green mark midway along the buoy line for the two new
fisheries that will be added to the ALWTRP: Northeast drift gillnet and
Northeast anchored float gillnet.
Prior to this final rule, there were no gear marking requirements
for the two gillnet fisheries operating in the Mid/South Atlantic: the
Mid/South Atlantic anchored gillnet and Mid/South Atlantic drift
gillnet fisheries. Under this final rule, NMFS will require that these
fisheries mark their buoy lines with one 4-inch (10.2-cm) blue mark
midway along the buoy line.
Under this final rule, the Southeast Atlantic gillnet fishery will
be required to mark their buoy lines with one 4-inch (10.2-cm) yellow
mark midway on the buoy line in the same manner as the Mid/South
Atlantic gillnet fisheries. As mentioned above, the color and marking
scheme for nets used in the Southeastern U.S. Atlantic shark gillnet
fishery would remain status quo and only buoy lines greater than 4 feet
(1.2 m) in length will need to be marked.

[[Page 57111]]

Exempted Waters

Modifications to the exempted waters are effective on April 7,
2008.

Coastal Exempted Waters

To be consistent throughout the east coast, under this final rule,
with the exceptions detailed below, NMFS will exempt all marine and
tidal waters landward of the 72 COLREGS demarcation lines. The 72
COLREGS lines are well known and widely published lines of demarcation.
In four areas, Casco Bay (Maine), Portsmouth Harbor (New Hampshire),
the state of Massachusetts, and Long Island Sound and Gardiners Bay
(New York), NMFS will not use the 72 COLREGS lines and will instead
create different exemption lines. Any exemption lines for these areas,
as well as areas where the 72 COLREGS lines do not exist, are explained
in the Changes From the Proposed Rule sections (2) through (4) below.
Based on the public comments received and an analysis of the
available data, NMFS will use an exemption line for the coast of Maine
that is largely based on the line suggested by the Maine Department of
Marine Resources (Maine DMR). The final exemption line for Maine will
begin at the Maine-Canada border and extend south and west along the
Maine coastline to Odiornes Point, New Hampshire. The line will be
connected using a series of 25 buoys and islands along the Maine coast
(Figure 4). See the regulations in this final rule for the coordinates
of the Maine exemption line. See Changes From the Proposed Rule section
(2) below for further information on the rationale for the final Maine
exemption line.
Through this final rule, NMFS is modifying the exempted waters for
New Hampshire's three harbors, two as proposed and one slightly
modified. As proposed, NMFS will exempt Rye and Hampton Harbors
according to the lines drawn across the headlands which mark their
entrances to the sea. Portsmouth Harbor will not be exempted according
to the 72 COLREGS demarcation line (the only 72 COLREGS line found in
the state) because it will be exempted through the final exemption line
for Maine, as this line's final coordinate is located at Odiornes
Point, New Hampshire.
The exempted waters for Massachusetts will continue to include
state waters landward of the first bridge over any embayment, harbor,
or inlet. See the Changes From the Proposed Rule section (3) below for
further information on the rationale for the final Massachusetts
exemption line. This final rule will not modify the current exemption
lines for Massachusetts or Rhode Island, except for minor refinement of
the exemption line coordinates for Point Judith Pond and Quonochontaug
Pond Inlets in Rhode Island. However, under this final rule, NMFS will
clarify that the exemption line coordinates drawn for Narragansett Bay
and the Sakonnet River match the 72 COLREGS lines for these waters
(Figure 5).
In New York, with the exception of New York Harbor, all embayments,
harbors, and inlets are currently exempted under the ALWTRP. Under this
final rule, these exempted waters will remain unchanged with the
exception of the Long Island Sound and Gardiners Bay area. However,
NMFS will clarify that the exemption lines for Shinnecock Bay Inlet,
Moriches Bay Inlet, Fire Island Inlet, and Jones Inlet match the 72
COLREGS demarcation lines. In addition, NMFS will create an exemption
line for New York Harbor based on the 72 COLREGS line. This is a line
drawn from East Rockaway Inlet Breakwater Light to Sandy Hook Light.
Under this final rule, NMFS will exempt a portion of Block Island Sound
landward of the territorial sea baseline which extends from Watch Hill
Point, Rhode Island, to Montauk Point, New York (Figure 5). See the
Changes From the Proposed Rule section (4) below for further
information on the rationale for creating the Block Island Sound
exemption line.
NMFS clarifies that the entire shoreline of New Jersey would be
exempted landward of the 72 COLREGS demarcation lines. In doing this,
the exemption line for Barnegat Inlet will be relocated slightly east
of the current exemption line to make it consistent with the 72 COLREGS
demarcation line.
NMFS redefines the exemption line for Delaware Bay as the 72
COLREGS demarcation line. This is a line drawn from Cape May Light to
Harbor of Refuge Light; thence to the northernmost extremity of Cape
Henlopen (Figure 6). Along the Maryland and Virginia shorelines, two of
the four existing exemption lines match the 72 COLREGS lines. However,
the exemption line from Chincoteague to Ship Shoal Inlet crosses the 3-
nautical mile (5.6-km) state waters line, which is not consistent with
the 72 COLREGS lines. Under this final rule, NMFS clarifies that the
shoreline of Maryland and Virginia would be exempted landward of the 72
COLREGS lines. This includes using the 72 COLREGS line to exempt
Chesapeake Bay. This is a line drawn from Cape Charles Light to Cape
Henry Light (Figure 7). In addition, the existing exemption line for
Smith Island Inlet will be removed from the exempted waters section of
the regulations because the 72 COLREGS line for Chesapeake Bay includes
the entrance to this inlet.
The existing exemption lines in the Southeast (North Carolina to
Florida) will remain unchanged. However, Captain Sam's Inlet (South
Carolina) will be added to the exempted waters section of the
regulations because it does not have a 72 COLREGS line.
NMFS believes that the exemption lines contained in this final rule
are appropriate in light of the analysis of the most recent sightings
data from available sources, and will not create a substantial increase
in risk to large whales from fishing gear. NMFS will continue to work
in collaboration with state partners to monitor all exemption areas and
should new information become available regarding the exemption areas,
NMFS will share this information with the ALWTRT to determine if
changes to the exemption areas are warranted.

Offshore Exempted Areas

Based on a review of the best available scientific information,
NMFS has determined that exempting waters at depths greater than 275
fathoms (1,650 ft or 502.9 m) will not increase the risk of large whale
entanglement in groundlines, as most large whales are not known to dive
to these depths. To account for variations in groundline profiles, NMFS
added 5 fathoms (30 ft or 9.1 m) to achieve an offshore exemption depth
of 280 fathoms (1,680 ft or 512.1 m). Therefore, this final rule
exempts trap/pot and gillnet fishermen from the requirement to use
sinking and/or neutrally buoyant groundlines in waters deeper than 280
fathoms (1,680 ft or 512.1 m). Additionally, this final rule exempts
gillnet net panel weak link and anchoring requirements if the depth of
the float-line is in waters deeper than 280 fathoms (1,680 ft or 512.1
m).

Regulatory Language Changes

Changes listed below are effective on April 7, 2008 unless
otherwise noted.

Weak Links

The ALWTRT recommended that, for consistency, NMFS should change
all headings for weak links in the ALWTRP regulations from ``Weak Links
on all Buoy Lines,'' ``Buoy Weak Links,'' and ``Buoy Line Weak Links''
to simply ``Weak Links.'' Under the ALWTRP final rule, ``Buoy Line Weak
Links,'' or ``Net Panel Weak Links'' will be used for

[[Page 57112]]

clarification. NMFS also clarifies that weak links must be placed on
all floatation and/or weighted devices, etc. that are attached to the
buoy line, and not just the main buoy. This final rule adds to the
regulatory text that weak links must be designed such that the bitter
end (the loose end of the line that detaches from the weak link) of the
line is clean and free of any knots when the link breaks, and that
splices are not considered to be knots for the purposes of this
provision. The final rule clarifies that gillnets, traps/pots, anchors,
and leadline woven into the buoy line are not considered weighted
devices attached to the buoy line. Therefore, under this final rule,
when referring to the techniques for meeting the weak link
requirements, the wording will read, ``All buoys, flotation devices
and/or weights (except traps/pots [or gillnets], anchors, and leadline
woven into the buoy line), such as surface buoys, high flyers, sub-
surface buoys, toggles, window weights, etc. must be attached to the
buoy line with a weak link placed as close to each individual buoy,
flotation device and/or weight as operationally feasible and that meets
the following specifications''.
In a final rule published on January 10, 2002, the use of line \7/
16\ inch (1.11 cm) in diameter or less for all buoy lines was removed
as an option from the ALWTRP's Take Reduction Technology Lists, as the
breaking strength of \7/16\ inch (1.11 cm) line can vary dramatically
(67 FR 1300, January 10, 2002). Therefore, because the diameter of line
is not appropriate to use for risk reduction, NMFS will also change the
text that describes the list of approved weak links. Specifically, the
regulatory text referring to ``rope of appropriate diameter'' will be
changed to ``rope of appropriate breaking strength''.
Where the gear modification requirements are referred to, this
final rule includes reference to a brochure that describes techniques
for complying with these requirements and provide information about how
to obtain a copy.
This final rule amends the current regulatory text describing the
placement of weak links in the floatline of gillnet net panels.
Specifically, the text will be modified to change the requirements for
the placement of one weak link in gillnet net panels that are shorter
than 50 fathoms (300 ft or 91.4 m). This final rule modifies the
requirements in the Mid/South Atlantic Gillnet Waters (for anchored
gillnets) and adds requirements for the Other Southeast Gillnet Waters
as follows: ``Weak links must be placed in the center of the floatline
of each gillnet net panel up to and including 50 fathoms (300 ft or
91.4 m), or at least every 25 fathoms (150 ft or 45.7 m) along the
floatline for longer panels.'' This final rule also amends the
requirements for the placement of weak links in the SAM areas and other
applicable areas where more than one weak link is required for gillnet
net panels of lengths up to and including 50 fathoms, (300 ft or 91.4
m) as well as those greater than 50 fathoms (300 ft or 91.4 m).
Additionally, this final rule specifies two configuration options for
gillnet net panel weak links for anchored gillnet fisheries in the
Northeast (effective April 7, 2008, including SAM areas April 7, 2008,
and Mid/South Atlantic (that is not returned to port with the vessel),
as well as gillnet fisheries in the Southeast that are not returned to
port with the vessel (effective April 7, 2008). See the requirements
for anchored gillnets in the Other Northeast Gillnet Waters section of
this rule for the specifics on these configurations for gillnet net
panel weak links. The same configuration option would be required for
all gillnet net panels in a string.

Groundlines

This final rule clarifies that fishermen may use sinking and/or
neutrally buoyant line for their groundlines and buoy lines. Under this
final rule, from January 1 through May 15 fishermen will be allowed to
use sinking and/or neutrally buoyant groundlines in the Cape Cod Bay
Restricted Area. Similarly, for the SAM gear modifications, this final
rule will allow the use of sinking and/or neutrally buoyant
groundlines.
Where sinking and/or neutrally buoyant line is required for
groundlines, this final rule prohibits the attachment of flotation
devices, such as buoys and toggles. This clarifies the prohibition on
floating groundlines by expanding the prohibition to the attachment of
any devices that cause groundlines to float into the water column, to
reduce the risk of entangling large whales.

Other Regulatory Language Changes

The following changes to the current ALWTRP regulations are revised
to improve consistency and clarity (effective April 7, 2008).

Gillnet Take Reduction Technology List

In 2002, NMFS published a final rule (67 FR 1300, January 10, 2002)
that replaced the Gillnet Take Reduction Technology List with specific
requirements for gillnet gear in the Mid-Atlantic; however, the list
was inadvertantly left in the regulations. This final rule will delete
the Gillnet Take Reduction Technology List.

Anchoring Clarification

This final rule amends the regulatory text to clarify how to comply
with the holding power of a 22-lb (10.0-kg) Danforth-style anchoring
requirement for anchored gillnet fishing gear in the Northeast,
including SAM areas, and Mid/South Atlantic (that is not returned to
port with the vessel), as well as gillnet gear in the Southeast that is
not returned to port with the vessel.

SAM Clarification

This final rule clarifies that for gillnet and trap/pot fisheries,
the Stellwagen Bank/Jeffreys Ledge Restricted Area overlaps with SAM
West boundaries. Thus, the Stellwagen Bank/Jeffreys Ledge Restricted
Area will be added to the list of ALWTRP management areas under the SAM
section of the regulations.

Terminology

For consistency, in the ``Other Provisions'' section of the ALWTRP
regulations, this final rule will change the term ``Cape Cod Bay
Critical Habitat'' to ``Cape Cod Bay Restricted Area.'' In addition,
this final rule will change the name of the ``Southeast U.S. Restricted
Area'' to ``Southern U.S. Restricted Area (N and S)'' (using 29[deg]00'
N. lat. as the dividing line for ``N'' and ``S''), and change the name
of the Southeast U.S. Observer Area to the ``Southeast U.S. Monitoring
Area.''

Definitions

The final rule adds definitions to Sec. 229.2 for ``bitter end''
and ``bottom portion of the line.'' The ``bottom portion of the line''
definition is revised to clarify the regulatory requirements for
allowing, where applicable, floating line in a section of the buoy line
not to exceed one-third the overall length of the buoy line.
The final rule also revises the terms ``Lobster trap'' and
``Lobster trap trawl'' to ``Trap/pot'' and ``Trap/pot trawl'' to
reflect the broader scope of the ALWTRP once the new trap/pot fisheries
are included under the management regime. These definitions will apply
to the trap/pot fisheries that will be regulated under the ALWTRP.

Prohibitions

The final rule revises the language in Sec. 229.3 and Sec. 229.32
regarding the activities prohibited under the ALWTRP. Specifically, in
paragraphs (h) through (l) of Sec. 229.3, and where applicable in
Sec. 229.32, NMFS clarifies that where it is prohibited to fish with
certain gear types, it is also prohibited to have the gear available
for immediate use. This added language is intended to

[[Page 57113]]

clarify the activities prohibited under the ALWTRP and improve
enforcement. Also, the phrase ``lobster trap'' has been changed to
``trap/pot.''

Criteria for Establishing a Density Standard for Neutrally Buoyant and
Sinking Line and Procedure for Determining the Specific Gravity of Line

In response to requests from the fishing industry and line
manufacturers for a clearer definition of neutrally buoyant and sinking
line, NMFS has developed criteria for establishing a density standard
for neutrally buoyant and sinking line and used these criteria to
develop definitions. In addition, NMFS finalizes a procedure for
assessing the specific gravity of line, which NMFS will use in the
future to determine whether a manufactured line meets the accepted
density standard. NMFS' criteria for establishing the density standard
and procedure to determine specific gravity of line are included in the
FEIS and available to the public upon request (see ADDRESSES for
contact information).
This final rule amends the definitions of ``Neutrally buoyant
line'' and ``Sinking line'' and clarifies each definition in relation
to groundlines and buoy lines. Under this final rule, neutrally buoyant
and sinking line will share the same definition; however, a distinction
will be made to clarify that sinking and/or neutrally buoyant
groundline could not float in the water column. Therefore, in this
final rule, the current definition of ``neutrally buoyant line'' is
amended to mean, ``for both groundlines and buoy lines, line that has a
specific gravity of 1.030 or greater, and, for groundlines only, does
not float at any point in the water column (See also Sinking line).''
NMFS will keep the ``neutrally buoyant'' and ``sinking line'' terms
based on industry's comment that these are familiar terms that have
been used for a number of years. Accordingly, the current definition of
``Sinking line'' is amended to mean, ``for both groundlines and buoy
lines, line that has a specific gravity of 1.030 or greater, and, for
groundlines only, does not float at any point in the water column (See
also Neutrally buoyant line).''

Comments and Responses

NMFS received 81 letters from commenters on the Draft Environmental
Impact Statement (DEIS) via letter, fax, or email. Additionally,
approximately 25,000 of one type of form letter and 73 of another type
of form letter of similar content were received on the DEIS via letter
and email. NMFS also solicited comments on the DEIS during 13 public
hearings held in Virginia, North Carolina, New Jersey, Maryland,
Florida, Massachusetts, Rhode Island, and Maine. NMFS received 37
letters from commenters on the proposed rule via mail, fax, or email.
The comments are summarized and grouped below by major subject
headings. NMFS response follows each comment. NMFS received comments on
FEIS technical changes that were not substantive, and made changes to
the FEIS as appropriate. These technical comments are not listed.

General Comments

Comment 1: Some commenters asked for a more balanced representation
of stakeholders on the ALWTRT. Specifically, commenters believed that
there should be more seats for conservationists on the ALWTRT.
Response: The ALWTRT is composed of Federal agencies, each coastal
state that has fisheries that interact with large whale species or
stocks protected under the ALWTRP, Regional Fishery Management
Councils, interstate fisheries commissions, academic and scientific
organizations, environmental groups, and all commercial fisheries
groups and gear types which incidentally take large whale species or
stocks. The Marine Mammal Protection Act (MMPA) states that take
reduction teams shall, to the maximum extent practicable, consist of an
equitable balance among representatives of resource user interests and
nonuser interests. The MMPA does not provide a fixed number or
percentage for each stakeholder group. NMFS believes that it has an
adequate representation of stakeholders including conservationists.
Comment 2: One commenter suggested that better results would be
produced by the ALWTRT if issues were addressed regionally.
Response: At its 2004 meeting, NMFS provided detailed information
on organizational issues specific to the ALWTRT. NMFS presented several
options for restructuring the ALWTRT and the pros and cons of each
option. One option included a regional component whereby the ALWTRT
would split into two regional teams (Northeast and Mid/South Atlantic).
However, the ALWTRT did not develop a consensus recommendation on
formally dividing the ALWTRT into separate teams by region or other
affiliation. Currently, the ALWTRT is continuing to meet as a full
team, but NMFS has allocated resources to conduct small scale regional
sub-group meetings when necessary. In addition, NMFS has allocated time
in its full ALWTRT meetings for smaller groups according to region,
gear type, or other affiliation.
Comment 3: Several comments were received in support of, as well as
in opposition to, the proposed elimination of the Lobster Take
Reduction Technology List in Northern Inshore waters.
Response: As proposed, NMFS has eliminated the Lobster Take
Reduction Technology List in Northern Inshore waters and other areas.
Eliminating the Lobster Take Reduction Technology List in Northern
Inshore waters will enable NMFS to utilize broad-based management
measures in the Inshore waters. However, NMFS acknowledges that the
elimination of the Technology List does not preclude NMFS from using a
similar management scheme in the future if warranted.
Comment 4: Two commenters requested that all information used in
formulating proposed alternatives and effectiveness of existing
programs be provided to the public. NMFS should develop and implement a
statistically reliable methodology for measuring and reporting serious
injury and mortality rates of all species of marine mammals, as
required by the MMPA.
Response: In support of the proposed action, NMFS prepared a DEIS.
In accordance with the National Environmental Policy Act (NEPA), the
DEIS disclosed the purpose and need for the action; a description of
the proposed alternatives, including a No Action Alternative; a
description of the affected environment; and a description of the
environmental consequences of each alternative including any adverse
environmental effects that will be unavoidable if the proposed action
is implemented. As required by NEPA, NMFS made all of the information
and analysis contained in the DEIS available to the public for an 81-
day written comment period and conducted 13 public hearings from Maine
to Florida to receive oral testimony regarding this action and its
supporting information and analysis. All comments received during the
public comment period and public hearings were considered in the FEIS
and final rule.
NMFS has developed protocols for determining large whale serious
injuries and human-caused mortalities. Such information is contained in
mortality and serious injury determinations issued by the Northeast
Fisheries Science Center (NEFSC). Human-caused mortality and serious
injury rates presented in these reports represent the minimum levels of
impact to Atlantic large whale stocks from 1999-2003 (Waring et al.,
2006). Confirmed human-caused mortalities and serious injury

[[Page 57114]]

records from 2000-2004 are also presented in Cole et al. (2006). Both
reports are available to the public through the NEFSC publications
office and can also be located online. NMFS does not attempt to expand
data beyond that which was observed, and at this time, there is no
reliable methodology that enables NMFS to extrapolate further from this
data.
Comment 5: Two commenters suggested implementing a ghost gear
removal program.
Response: NMFS does not currently have the resources to administer
and/or implement such a program. However, NMFS has supported ghost gear
removal initiatives in the past through its Right Whale State
Cooperative Program, which is administered through its partnership with
the National Fish and Wildlife Federation (NFWF), and will continue to
consider future support for ghost gear removal through this competitive
funding initiative.
Comment 6: Two commenters suggested that the observer program is
not being used to its fullest potential. Specifically, one commenter
urged NMFS to prioritize observer coverage for ALWTRP fisheries. The
commenter believes this would assist in assessing the effectiveness of
gear modifications and seasonal closures.
Response: Based on the limited observer resources available and the
competing needs for observer coverage in many other fisheries, NMFS
believes that the observer program is being used to the fullest extent
practicable given the resources available and competing observer needs
in other fisheries. Although NMFS agrees in principle with the
commenter's suggestion that increased observer coverage could assist in
assessing the effectiveness of gear modifications and seasonal
closures, the NMFS observer program is not intended to be an extension
of law enforcement resources. The National Observer Program is intended
and designed to collect fisheries dependent physical, biological, and
economic data to assist NMFS in making management decisions.
Comment 7: Many commenters questioned why the Federal Government is
making regulations and not individual states. Specifically, some
commenters stated that Federal mandates are not going to work for the
State of Maine while others stated that there are already state fishery
management plans (FMPs) (e.g., the State of Florida's Spanish Mackerel
Plan) that impose rules that are more protective of whales than the
alternatives proposed by the ALWTRP.
Response: The MMPA gives NMFS the authority to administer the
provisions of the MMPA within state waters. To protect the large whale
stocks included under the ALWTRP from serious injury or mortality
incidental to commercial fishing interactions, NMFS convenes the ALWTRT
to help develop appropriate management actions. The ALWTRT includes
each coastal state that has fisheries that interact with large whale
species or stocks protected under the ALWTRP. Each state also has
industry representatives who serve on the ALWTRT. State officials and
state industry representatives have input into the development of
regulations within state waters. NMFS considered all comments regarding
state fisheries and areas; this final rule modified certain provisions
within state waters as a result of these comments.
Comment 8: One commenter stated concern that more fishermen may
fish in the state exempted areas, which would create increased gear
concentrations in inshore areas.
Response: In determining the state exemption lines, NMFS analyzed
data from available sources, including data that are more current than
the data analyzed for the DEIS. Large whale sightings distribution data
from 1960 to mid-September 2005 were obtained from the North Atlantic
Right Whale Consortium (NARWC) Sightings Database containing dedicated
survey effort and opportunistic sightings data, which is curated by the
University of Rhode Island (URI), and supplemented by additional data
on humpback and fin whale sightings. In addition, NMFS analyzed large
whale sightings data from 2002 through 2006 that were collected through
the NEFSC's systematic aerial surveys, as well as through the Northeast
U.S. Right Whale Sighting Advisory System (SAS). NMFS also analyzed a
right, humpback, and fin whale sightings database compiled by the Maine
Department of Marine Resources (Maine DMR), which includes sightings
reported by the Maine Marine Patrol, whale watch vessels, etc. Based on
this analysis, NMFS believes that the final exemption line will provide
large whales with an adequate level of protection. For example,
sightings data along the east coast indicated that endangered large
whales rarely venture into bays, harbors, and inlets. Therefore,
although gear may increase in the state exemption areas, the risk to
large whales would be minimal.
Comment 9: One commenter stated that NMFS should not regulate Rhode
Island fishermen the same as Cape Cod Bay fishermen.
Response: Assuming the commenter is fishing entirely in Rhode
Island northern inshore waters and comparing their requirements to
fishermen who fish in Cape Cod Bay during the restricted period, there
are differences between how Rhode Island and Cape Cod Bay fishermen are
being regulated under the ALWTRP. Specifically, the trap/pot gear
restrictions and weak link requirement are different for these areas
and more restrictive in Cape Cod Bay from January 1-May 15. Also, the
provision to prohibit floating groundline does not take effect in Rhode
Island until 12 months after publication of the final rule while the
floating groundline prohibition is already in effect in Cape Cod Bay
for trap/pot fishermen. Regarding gillnet gear, Cape Cod Bay is closed
to all gillnet gear during the restricted season while Rhode Island
inshore waters may use gillnets provided they comply with the specified
gear requirements.
Comment 10: Numerous commenters believe NMFS should not regulate
fishermen in the Mid-Atlantic/Southeast the same as those in New
England and believe NMFS should justify new gear requirements in the
Mid-Atlantic and provide a rationale of why impacts of new requirements
are necessary to achieve the goals of the ALWTRP. The commenters
believe that regional management areas should be managed differently
for the following reasons: (1) Year-round closures are unnecessary in
the Mid-Atlantic area; (2) there are relatively few right whale
sightings; (3) there is less gear and fewer fishing vessels; (4) no
critical habitat has been designated in the Mid-Atlantic; and (5) there
are different regional and seasonal fishing practices in the New
England, Mid-Atlantic, and Southeast fisheries.
Response: The ALWTRP was developed to reduce the level of serious
injury and mortality of North Atlantic right, humpback, and fin whales.
Although right whales and humpback whales are more common in New
England throughout the year, they are also present in the Mid-Atlantic.
Further, fin whales are common year-round north of Cape Hatteras.
Therefore, NMFS believes all fisheries in these areas should be subject
to similar gear modification requirements. However, based on sightings
data and comments received on the proposed rule, NMFS chose an
alternative that allows seasonal gear restrictions in the Mid-Atlantic
as opposed to year round requirements in New England. Further, NMFS
allowed small changes to some of these gear modifications to account
for how local fisheries operate in the Mid-Atlantic

[[Page 57115]]

(see Changes from the Proposed Rule section of the preamble).
Comment 11: One commenter calls for a set of regional alternatives
rather than one national alternative for all East Coast fisheries.
Response: The alternatives examined in the EIS were the product of
extensive outreach conducted by NMFS. NMFS reconvened the ALWTRT on
April 28-30, 2003. 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 scoping document described the major issues, current
management and legal requirements, and potential management measures to
address fisheries that may frequently or occasionally interact with
large whales. During the summer of 2003, NMFS conducted six public
scoping meetings at locations from Maine to Florida along the east
coast. Based on this outreach effort NMFS developed a suite of
alternatives that best reflected the comments from the ALWTRT and
public while at the same time afforded protection to large whales. The
alternative ultimately selected by NMFS does include regional measures.
Comment 12: One commenter believes NMFS needs to look at gear and
effort in different areas. The commenter believed that regulations are
in place due to problems in Massachusetts, and if that is where the
problem is then that is where the regulations should be, not for the
entire coast.
Response: Large whale entanglements are not solely a Massachusetts
issue. Atlantic large whales are at risk of becoming entangled in
fishing gear because the whales feed, travel, and breed in many of the
same ocean areas utilized for commercial fishing. Fishermen typically
leave fishing gear, such as gillnets and traps/pots in the water for
specific periods of time. While the gear is in the water, whales may
become incidentally entangled in the lines and nets that comprise trap/
pot and gillnet fishing gear. The number of entanglements for which
gear type can be identified is too small to detect any trends in the
type of gear involved in lethal entanglements. However, trap/pot and
gillnet gear are the most common. NMFS believes that floating
groundlines pose the biggest risk for large whales, but acknowledges
that any type and part of fixed gear is capable of entangling a whale
throughout its entire range. NMFS, in consultation with the ALWTRT, has
developed a coast-wide strategy with regional components to address
entanglements.
Comment 13: One commenter asked how many whale entanglements
occurred in traps/pots in 2004.
Response: There were 16 known entanglements that were first
reported in 2004. However, for most of these, the actual year of
entanglement is not known. Gear was recovered from seven of these
entanglements. Of the seven entanglements from which gear was
recovered, five were identified to a specific gear type. Trap/pot gear
accounted for four entanglements and gillnet gear accounted for one.
Comment 14: One commenter believed that it is important that NMFS
listen to the Maine DMR because they do a good job communicating with
fishermen.
Response: NMFS views all state representatives serving on the
ALWTRT as valued partners in making sound management decisions.
Comment 15: Several commenters believe that fishermen are unlikely
to modify their gear for 9 months, and then switch to unmodified gear
for 3 months. The commenter believes the economic burden on the
industry would be relatively the same as year-round requirements.
Response: Many commenters asked NMFS to choose seasonal windows
based on large whale distribution. Some commenters also supported
seasonal requirements due to the occurrence of seasonal fisheries in
some areas. However, the economic analysis in Chapter 6 of the EIS
assumes that vessel operators that would be subject to seasonal ALWTRP
requirements would switch to compliant gear year-round. Therefore, the
implications of seasonal requirements are accounted for in the
discussion of costs and socioeconomic impacts. Because the difference
in costs between seasonal and year-round requirements is low, and the
differences in biological impacts is also low, NMFS chose seasonal
requirements.
Comment 16: One commenter believes that gillnets should be
prohibited from the Stellwagen Bank National Marine Sanctuary and the
number of lobster traps and lines should be limited.
Response: The regulations implementing the Northeast Multispecies
FMP contain a closure provision named the Western Gulf of Maine Closure
Area. The closure area encompasses the vast majority of the Stellwagen
Bank National Marine Sanctuary. Accordingly, no fishing vessel or
person on a fishing vessel may enter, fish in, or be in, and no fishing
gear capable of catching NE multispecies, including gillnet gear, may
be in, or on board a vessel in, the Western Gulf of Maine Closure Area.
The Interstate FMP for American Lobster has also implemented an effort
reduction strategy that limits the volume of trap/pot gear targeting
lobsters. In addition to the management efforts in specific FMPs,
through this final action the ALWTRP is implementing measures that
significantly reduce the risk of an entanglement and serious injury and
mortality of large whales should an entanglement occur, such as
implementing a prohibition on floating groundline for trap/pot and
gillnet gear and an increase in the number of break away links in the
net panels of gillnet gear. Floating rope between traps/pots, and the
gillnets and anchor systems gear serves as the greatest risk to large
whale entanglements.
Comment 17: Some commenters believe that NMFS needs a better
international strategy, otherwise Maine fishermen are shouldering the
burden of whale conservation. The commenter believes Maine fishermen
take on more compliance costs than are necessary, while their
counterparts in other industries and in Canada operate free of whale
take reduction measures.
Response: Since the implementation of Canada's Species at Risk Act
(SARA), NMFS has established a strong relationship with Canada's
Department of Fisheries and Oceans (DFO) regarding right whale
management. In recent years, NMFS staff from the Northeast Regional
Office and DFO's Maritime Regional Office have met to coordinate on
several critical right whale management and science issues. Of
particular importance is the development of a collaborative approach to
managing both gear and vessel interactions with large whales.
Because of the geographic concentration of the lobster fishery in
Maine, it is true that Maine vessels bear a large share of the overall
estimated costs of the ALWTRP modifications. However, the social impact
analysis suggests that under Alternative 6 Final (Preferred) only a
limited subset of smaller vessels are likely to experience costs that
represent a large share of fishing revenues. As reviewed in the
cumulative effects analysis in the FEIS, fishing gear entanglement and
ship strikes are the two largest contributors to human-caused whale
mortality. NMFS is currently working on implementing a ship strike
strategy that will seek to reduce injuries and mortalities associated
with this source. Chapter 9 of the EIS also reviews a variety of
measures implemented by the Canadian government. In 2000, DFO, in
cooperation with the World Wildlife

[[Page 57116]]

Fund Canada, developed Canada's first Right Whale Recovery Plan and
recovery implementation team. The recovery plan, which is intended as a
``blueprint'' for action, includes a number of recommendations related
to gear entanglement, whale research, and regulatory and enforcement
actions.
Comment 18: One commenter believes that it is too difficult to
determine what gear modifications will save right whales. The commenter
believes that there is no one specific gear modification that we can
point to and say that it is going to save right whales.
Response: NMFS agrees that currently there is no one gear
modification that can save right whales. NMFS believes that the success
of the ALWTRP and right whale conservation depends on a combination of
conservation measures designed to reduce entanglements and serious
injury and mortality should an entanglement occur. The ALWTRP includes
a combination of fishing gear modifications and time/area closures to
reduce whale entanglement in commercial fishing gear. The nature of the
gear modification requirements varies by location and time of year,
maximizing reduction in entanglement risk based on whale distribution
and movement. NMFS complements these gear modification requirements
with prohibitions on fishing at times and in places where right whale
aggregations are greatest, and therefore where entanglement risk may be
particularly high.
Comment 19: One commenter believed fishermen cannot control ship
strikes or entanglements with fishing gear that is obviously not from
the Northern Nearshore Lobster Waters Area. The commenter believes that
Maine fishermen are required to compromise to fix a problem that they
are not causing.
Response: NMFS is addressing vessel interactions with large whales
through a separate action (71 FR 36299, June 26, 2006). The number of
entanglements for which gear type can be identified is too small to
detect any trends in the type of gear involved or the area where the
entanglement occurred. However, trap/pot and gillnet gear appears to be
the most common gear involved in entanglements. Based on the limited
information available on entanglements, NMFS views the entanglement
issue as a coast-wide problem rather than solely a ``Maine problem''.
Consequently, NMFS in consultation with the ALWTRT, has developed a
coast-wide strategy with regional components to address entanglements.
Comment 20: One commenter stated that in Grand Manan Channel,
Machias, Seal Islands, and many areas in Down East Maine, fishermen
cannot operate under existing requirements (i.e., weak links cannot
hold and fishermen are constantly replacing poly balls).
Response: In developing the appropriate breaking strengths for weak
links used by commercial fishermen in this area, NMFS worked closely
with the ALWTRT, including commercial fishermen and the state of Maine
to develop what it believes is the appropriate breaking strength
tolerance for fishermen fishing in this area. Should new information
become available that may warrant a change to the weak link tolerances
in this area, NMFS will consult with the ALWTRT regarding whether to
take a subsequent action.
Comment 21: One commenter believes that environmentalists are
pushing NMFS to over-regulate and that fishermen are being put out of
business everyday.
Response: Federal regulations are not based on pressure from
environmentalists. The purpose of the revisions to the ALWTRP is to
provide additional conservation and protection to Atlantic large
whales. Such revisions would fulfill NMFS' obligations under the ESA
and the MMPA. The need for the revisions in this final rule is
demonstrated by the continuing risk of serious injury and mortality of
Atlantic large whales due to entanglement in commercial fishing gear.
Comment 22: Many commenters believed that the DEIS is not adequate
for the following reasons: (1) It failed to follow NEPA requirements;
(2) it disregarded certain comments provided during the scoping
process; and (3) it lacked an assessment of the biological benefits to
large whales that are likely to occur as a result of implementing these
modifications to the ALWTRP.
Response: The DEIS complies with all applicable requirements of
NEPA and contains, among other analyses, complete assessments of the
biological, social, economic, and cumulative impacts associated with
this action. In addition, the DEIS summarizes and integrates the
biological, economic and social impacts analyses allowing for a broad
assessment of the relative merits of the regulatory alternatives
considered by NMFS. The DEIS also contains a discussion of the
alternatives considered but rejected by NMFS. The DEIS summarizes
various approaches and briefly explains why NMFS chose not to integrate
the approach into the regulatory alternatives under consideration by
NMFS. However, based on public comment, some of the discussions
regarding why some of the approaches were not adopted by NMFS was
expanded upon in the FEIS to better articulate NMFS' rationale.
Comment 23: One commenter stated that the DEIS fails to discuss the
ethical values of whales and the marine environment, which deserve
protection from human interference and threats. The commenter believed
that DEIS Chapter 7 in particular discusses social impact on
fishermen's quality of life, but shows no contrasting view of spiritual
and intellectual enjoyment of whales.
Response: Under NEPA, a Federal agency is not required to consider
non-physical effects such as psychological effects or moral and ethical
values caused by or in anticipation of a proposed action. Nonetheless,
the analysis contained in the DEIS does discuss passive uses as raised
by the commenter. The DEIS discusses passive use in Chapter 10, the
regulatory impact review section. Chapter 7 of the DEIS also discusses
``passive uses'' and provides a table of passive use studies related to
marine mammals. Language has been added to the FEIS to clarify that
non-use values such as those measured in these studies are closely
related to the ``spiritual'' or ``ethical'' values emphasized by the
commenter.
Comment 24: One commenter supported continued disentanglement
efforts, such as floating forklifts, hydraulic slings between two
boats, and an inflatable blanket to keep a subdued whale afloat.
Response: NMFS appreciates the support for continued
disentanglement efforts. NMFS recently convened a third workshop in a
series, which included marine animal experts from numerous disciplines
including, veterinarian sciences, disentanglement experts,
anesthesiology, marine mammal behaviorists, etc. to discuss these
suggested approaches as well as many other options to ascertain which
had the most merit for investigating further versus which were too cost
prohibitive and logistically impractical. NMFS reiterates that
disentanglement is only a temporary ``band-aid'' approach and that the
solution that all involved parties are striving for is to prevent
entanglement and reduce serious injury and mortality, if an
entanglement occurs.
Comment 25: Two commenters believed NMFS did not address minke
whales in the EIS. One commenter said that the ALWTRP currently does
not consider minke whales, yet the State of Maine actively trained and
equipped fishermen to disentangle minke whales

[[Page 57117]]

in state waters. The commenter believes that for the State of Maine to
go to such lengths indicates that these protected species do become
entangled at a significant rate and that those whales should be
considered under the plan.
Response: The ALWTRP is designed to protect right whales, humpback
whales, and fin whales. Right, humpback, and fin whales are strategic
stocks because they are listed as endangered under the ESA. Therefore,
because these strategic stocks interact with Category I and II
fisheries, under the MMPA, the ALWTRP was established to assist in the
recovery of these large whale species. Minke whales are neither listed
as endangered or threatened under the ESA, nor do they have high
incidental mortalities relative to population abundance. Therefore,
minke whales are not considered a strategic stock and are not included
within the ALWTRP. However, the ALWTRP does provide ancillary benefits
to the minke whale. The minke disentanglement program is a component of
the Maine's Large Whale Conservation Program whereby only a few
commercial fishermen are trained and authorized to respond to entangled
minke whales. The program was not developed because of increased takes
of minke whales within state waters.
Comment 26: Several commenters expressed concern for minke whale
regulations under the ALWTRP. One commenter believes the potential
biological removal (PBR) for minke whales may be exceeded based on the
fact that half of the whales stranded between Maine and Virginia (2002-
2004) showed signs of fishery interactions. Another commenter requested
that the minke whale stock be considered ``strategic'' under the ALWTRP
and for NMFS to continue current take reduction measures for the
species. The commenter stated that the status of minke whales in
Atlantic waters is poorly known with more fishery interactions
occurring than that which is reported. The commenter states that minke
whales are found dead 2 and a half times more than all other species
combined. Another commenter stated that the Large Whale Entanglement
Report suggests high entanglement-related mortality. Two commenters
stated that minke whale carcasses may be less likely to float after
death, thus underestimating serious injury and mortality.
Response: Stranding data alone do not provide a reliable base to
estimate PBR and currently, there is no accurate method to extrapolate
further from stranding data. Minke whales are neither listed as
endangered or threatened under the ESA, nor do they have high
incidental mortalities relative to population abundance. Therefore,
minke whales are not considered strategic and are not included within
the ALWTRP. However, the species will still benefit from ALWTRP
regulations, see responses to Comments 4, 25, and 299. It should be
noted that minke whales are the most common species of baleen whales
found in western North Atlantic waters; estimates suggest that there
may be four times as many minke whales in these waters as there are
humpback whales. High overall minke whale abundance may account for the
high incidence of carcass recovery. Also, there is no current data to
either suggest or support that minke whales are less likely to float
after death when compared to other large whale species such as humpback
and fin whales.
Comment 27: Numerous commenters believed there was a lack of
discussion in the EIS regarding how these measures will be enforced.
One commenter further encouraged NMFS to make monitoring and
enforcement plans a formal part of a take reduction plan.
Response: At its April 2003 meeting, the ALWTRT recommended that
NMFS establish a Compliance Committee to discuss issues such as
evaluating, monitoring, and improving ALWTRP compliance. The plan
development includes working through the Atlantic States Marine
Fisheries Commission (ASMFC) and Joint Enforcement Agreement (JEA)
contacts and involves stakeholder groups on the ALWTRT. NMFS has made
some progress regarding this issue, particularly with NMFS and state
enforcement offices through the JEA process. However, NMFS acknowledges
more work is needed in this area. At its 2004 and 2005 meetings, the
ALWTRT also discussed separating monitoring issues from the Compliance
Committee and addressing these through a Status Report Subcommittee.
The discussion focused on the interpretations of the annual right whale
and humpback whale scarification analysis. Specifically, the ALWTRT
discussed whether the scarification analysis was the best method for
evaluating the ALWTRP. NMFS has and intends to continue these
discussions with the ALWTRT.
Comment 28: One commenter asked why vertical lines were not
addressed in the DEIS. One commenter believed that the key elements of
a vertical line strategy could have been articulated in the DEIS
without committing at this time to specific alternatives.
Response: The proposed changes to the ALWTRP include some gear
modifications to vertical line and the DEIS includes a discussion of
vertical lines. Specifically, the DEIS notes that further risk
reduction to address risk associated with vertical line will occur
through a future rulemaking action due to the need for additional
information and discussions to develop comprehensive and effective
management measures. NMFS and its partners (e.g., scientific, state,
and industry) are currently researching ways to reduce risk associated
with vertical line. NMFS and its partners are also investigating how
whales utilize the water column, including their foraging ecology and
diving behavior, which will help to determine appropriate mitigation
strategies to reduce entanglement risk of vertical line. NMFS has
developed a list of potential management options to reduce risk
associated with vertical line that was provided to the ALWTRT at its
2005 and 2006 meetings. NMFS discussed these options with the ALWTRT
during the 2006 meeting and intends to further discuss these at the
next meeting.
Comment 29: One commenter stated that the agency is balancing the
desires of the industry with the needs of conservation and the
commenter states this is not appropriate. The commenter says that the
ESA is quite clear that the needs of the species outweigh economic
impact. The commenter prefers NMFS to require the institution of the
more risk-averse groundline profile immediately. It should be coast-
wide and year-round, because whales do wander.
Response: NMFS believes it is implementing the appropriate measures
to reduce risk associated with groundlines, amongst other risk
reduction measures, as quickly as is feasible and consistent with the
requirements of the ESA. NMFS believes a phase-in period is warranted
to enable fishermen to rig their gear with sinking and/or neutrally
buoyant groundline, but believes fishermen will be continually
converting their gear before the effective date, which will result in
risk-reduction to large whales. Additionally, NMFS believes that the
coast-wide management approach, with year-round requirements in the
northeast, and seasonal requirements in the mid and south Atlantic, is
risk-averse. Although whales may be present outside a seasonal window,
the sightings are rare and the risk of gear to large whales at these
times of the year is minimal. However, NMFS will continue to monitor
the areas where seasonal requirements are in effect. Should new
information become available that indicates that a change in

[[Page 57118]]

seasonal window is warranted, NMFS will share the information with the
ALWTRT and take appropriate action.
Comment 30: Several commenters believe NMFS failed to hold hearings
in jurisdictions or locations where groups other than the industry
could be heard. One commenter requested that the public comment period
on the DEIS be extended even further, or a supplemental EIS be issued
with additional hearings held in metropolitan areas so interested
public, advocacy groups, and the scientific community can take part.
Response: NEPA provides opportunities for public involvement at
various stages of the environmental review process. NMFS held scoping
meetings and public hearings on the DEIS from Maine to Florida. NMFS
chose areas and locations that were most affected by the action. NMFS
also solicited public comment through three open comment periods where
comments could be submitted to NMFS in writing. NMFS provided an
opportunity for the public to comment during the publication of its
Notice of Intent (NOI) to prepare a DEIS (68 FR 38676, June 30, 2003),
the notice of availability for the DEIS (70 FR 9306, February 25,
2005), and the proposed rule (70 FR 35894, June 21, 2005). The public
comment period of the DEIS was originally 45 days, but was extended to
81 days (70 FR 15315, March 25, 2005) while the public comment period
on the proposed rule was extended from 31 to 63 days (70 FR 40301, July
13, 2005). A summary of all scoping comments and copies of all written
DEIS comments received by NMFS are found in the FEIS. NMFS believes
that it has selected appropriate areas for its public hearings and
provided adequate opportunity for public comment.
Comment 31: One commenter recommended NMFS prepare a supplemental
DEIS to consider alternate time/area fishing closures in areas where
right whales and other large whales congregate, such as critical
habitat. Another commenter recommended that NMFS develop a supplemental
DEIS to discuss available information on the frequency of vertical line
entanglements that involved weak links. The commenter believes that
results of this analysis should be used to estimate whether, and to
what extent, weak links will reduce the number of entanglements under
each alternative.
Response: NMFS believes that the DEIS represents a comprehensive
suite of alternatives to amend the ALWTRP as well as a thorough
analysis of the impacts of the proposed alternatives on the human
environment. NMFS worked with the ALWTRT to help evaluate the ALWTRP
and discuss additional modifications necessary to meet the goals of the
MMPA and ESA. NMFS also solicited input from the public after issuing a
Notice of Intent to prepare an EIS. Although there were no consensus
recommendations from the ALWTRT or consistent proposals from the
public, NMFS believes that it has developed the best options available
for amending the ALWTRP. NMFS did consider seasonal closures to
prohibit lobster trap/pot and gillnet fishing in all designated right
whale critical habitats during times when whales are known to
congregate in those areas. This discussion is included in the DEIS
summary of written scoping comments received. This comment is reflected
in the section of the DEIS that lists the alternatives considered and
rationale for rejection, as well as in the section that describes the
alternatives considered. In the FEIS, NMFS included additional language
to clarify that this comment was considered. NMFS has analyzed all
entanglements including those that involve weak links. Although weak
links are one gear modification that is included in the current ALWTRP,
as well as a component of the broad-based gear modifications in the
DEIS, NMFS is not relying solely on this modification. There is no
evidence to suggest that weak links are ineffective. NMFS believes weak
links, in combination with other mitigation measures, serve as a
valuable conservation tool.
Comment 32: One commenter stated that the Southern monkfish area is
not overfished and is not deemed overfished and this should be fixed in
the DEIS.
Response: Monkfish has been determined by NMFS to not be overfished
in both the northern and southern areas from 2003 through 2005. The
NEFSC held a monkfish stock assessment workshop in the fall of 2004
(SAW 40). The data used in the 2004 assessment included NEFSC research
survey data, data from the 2001 and 2004 Cooperative Monkfish Surveys,
commercial fishery data from vessel trip reports, dealer landings
records, and observer data. The Stock Assessment Review Committee
concluded that the resource is not overfished in either stock
management area (north or south). Chapter 4 of the EIS discusses the
status of affected fisheries and does not indicate that monkfish are
overfished. Therefore, NMFS agrees with the comment that monkfish is
not overfished in the southern area as of December 31, 2005. NMFS has
changed the FEIS to reflect this, but has noted that new information
(New England Fishery Management Council (NEFMC and NEFSC 2006 Monkfish
Monitoring Report)) finds that monkfish are now overfished in both the
northern and southern areas. In the monkfish Management History section
of Chapter 9 of the EIS, the discussion has been updated to reflect the
latest assessment of the fishery's status.
Comment 33: One commenter states ship strike mortalities are not
covered in the DEIS.
Response: Section 118 of the MMPA requires that take reduction
teams address serious injuries and mortalities of marine mammals that
interact with commercial fishing operations. The DEIS is focused on
serious injuries and mortalities of large whales that result from
entanglements in commercial fishing gear. However, NMFS did consider
ship strike mortality as part of the cumulative effects analysis in
Chapter 9 of the DEIS.
Comment 34: One commenter wants NMFS to consider the importance of
the DEIS as NMFS balances the survival of right whales against
development and commercial interests that can be modified while still
profitable. The commenter believes that development and commercial
interests can be done in an environmentally friendly and commercially
viable way. The commenter also believes that it is the North Atlantic
right whale that may not survive without NMFS' strong protection.
Response: NMFS acknowledges the commenter and believes that the
DEIS represents a comprehensive suite of alternatives that has
thoroughly analyzed the impacts of the proposed alternatives on the
human environment and large whales, including right whales, as well as
other marine mammal species.
Comment 35: One commenter states that Exhibit 6-6 identifies
potential sources of increased gear loss, but there was no specific
analysis for gear loss in rocky/tidal habitats. Further, there is no
analysis for the concept of low profile groundline in the potential
reduction of gear loss rates. The commenter states that Exhibit 6-8
states the estimated change in annual gear loss for Maine inshore
waters in Alternatives 2-4 and 6 will increase by 10-percent; the
commenter states that anecdotal information says this is a very low
estimation.
Response: As noted in Exhibit 6-6, the EIS acknowledges that gear
loss may be higher in certain waters such as rocky bottom areas.
Consequently, the analysis of changes in gear loss rates separately
examines Maine's inshore fishery and applies the higher rate of 10
percent. This value represents an

[[Page 57119]]

estimate of the typical change in gear loss rates for Maine inshore
waters; NMFS acknowledges that some fishermen will likely experience
higher rates while others will likely experience lower rates.
NMFS and its partners are actively researching the use of low
profile line in rocky/tidal habitats to minimize gear loss; however,
additional research is required before NMFS can determine whether use
of this gear is feasible. See response to Comment 128.
Comment 36: One commenter believes that Exhibit 6C-1 does not seem
to account for the useful life of sinking line in rocky/tidal habitats.
Response: The analysis assumes that the useful life of sinking and/
or neutrally buoyant line will be lower, on average, than the useful
life of floating line. This assumption is based in large part on
recognition that the line is more susceptible to chafing, particularly
in rocky or heavy tide habitats. Adjusting estimates of the line's
useful life to take local conditions into account would introduce a
level of detail into the analysis that is infeasible as it would be
impossible to test in all locations where groundline could be used.
Comment 37: One commenter believed that the ESA is relatively blind
to costs of the reasonable and prudent alternatives of a biological
opinion if the species is in jeopardy.
Response: Regulations implementing section 7 of the ESA define the
criteria for reasonable and prudent alternatives (RPA). RPAs must be
technologically and economically feasible. The ALWTRP is promulgated
under the MMPA. Pursuant to NEPA, NMFS analyzed the social, biological,
and economic impacts of the various ALWTRP alternatives on the human
environment.
Comment 38: One commenter suggested developing a new approach to
eliminate all takes, such as real-time right whale tracking, improved
reporting of location and amount of gear in the water, mandatory gear
marking, and effective area closures for trap/pot and gillnet gear.
Response: The ALWTRT has discussed many of the commenter's concepts
in the past. Several of the commenter's ideas are currently being
pursued by NMFS and the ALWTRT. However, a couple of these concepts
need further development. In particular, real-time right whale tracking
has several limitations both from a technical and legal standpoint.
Monitoring the location and volume of gear in the water is also very
challenging. Nonetheless, these ideas have some merit and NMFS will
continue to discuss these issues with the ALWTRT.
Comment 39: A few commenters believed that there are generally no
whales beyond 4-6 miles (7.4-11.1 km) offshore, so the eastern edge of
the ALWTRP line off of Florida should not be extended to the Exclusive
Economic Zone (EEZ). Another commenter said that fisheries in the
Southeast occur greater than 3 nautical miles (5.6 km) from shore, but
most whales are inside of 3 nautical miles (5.6 km) and in temperatures
greater than 70 [deg]F (21.1 [deg]C) where most fisheries do not occur.
Response: Habitat models based upon the aerial survey data
collected off the southeast suggest a strong relationship between the
spatial distribution of calving right whales, water temperature, and
bathymetry. In particular, calving right whales were strongly
correlated with water temperatures between 55.4-59 [deg]F (13-15
[deg]C) and water depths 49.2-65.6 ft (15-20 m) (Keller et al., 2006;
NMFS unpublished, 2006). However, southeast spatial distributions and
habitat correlations for non-calving right whales (e.g., females
without calves) and other large whale species remain unclear at this
time. Sightings data from the North Atlantic Right Whale Sightings
Database suggest that right whales, and other large whale species, do
occupy waters greater than 3 nautical miles (5.6 km) from shore.
However, given the lack of offshore survey effort in this region, it is
possible that there are more large whales in this area than reflected
in the database. Thus, NMFS has extended management measures out to the
eastern edge of the EEZ to protect any large whales in this area, but
also to remain consistent with management areas extending to the EEZ in
Mid-Atlantic and Northeast waters.
Comment 40: One commenter said that there is little effort in the
shark gillnet fishery in the Southeast and this should be acknowledged.
Response: NMFS acknowledges that gillnetting effort in the
Southeast does not meet or exceed gillnetting levels in the Mid-
Atlantic or Northeast.
Comment 41: NMFS received many comments supporting year-round,
coast-wide gear modifications. Comments supporting this idea included
the following rationale: (1) Right whales and humpback whales have been
seen as far south as the Carolinas or even farther south all year long
(e.g., humpback whales documented feeding off North Carolina in June
2004); (2) fin whales have been documented in the Mid-Atlantic from
January through March; (3) seasonal exemptions seem linked to survey
effort (i.e., there is little winter/early spring survey effort in
southern areas); (4) documented sightings of large endangered whales
off New Jersey (within 20 mile (37.0 km) radius of Cape May) in summer;
(5) stranding/ship strike data show whales using waters south of Rhode
Island in summer; (6) Mate data (Mate et al., 1997) show right whale
mother/calf off New Jersey in August of 1997; (7) humpback whale
strandings in Virginia and North Carolina have been recorded in summer;
and (8) large whale movements are unpredictable (e.g., Kingfisher went
from the southeast to New England and back again in a few weeks),
therefore, NMFS should consider updated satellite tracking information
(Baumgartner and Mate, 2005). One commenter questioned the sighting
effort for right and humpback whales in the Mid-Atlantic during the
late spring/summer and suggested increased effort in this area; in the
interim, the commenter supported year-round requirements in the Mid-
Atlantic.
Response: NMFS has based its regulations on the best available data
and has considered and incorporated all sources of available data
(e.g., satellite tracking papers) into this final rule and the FEIS.
NMFS recognizes that animals occur in Mid-Atlantic waters outside
seasonal management periods, however, sightings referred to in the
above comments are not typical of the known ecology of large whales.
Expanding seasonal measures to year-round, coast-wide modifications
would only offer minimal risk reduction for large whales in comparison.
Comment 42: One commenter stated that whale watch boats operate in
the Mid-Atlantic from April 1 through November 30. The commenter
believes that if the numbers of whales were expected to be low from May
31 through September 1, whale watch boats would not operate during this
time.
Response: Many Mid-Atlantic whale watching operations conduct tours
for dolphins and other cetacean species. However, NMFS currently does
not possess data on where such vessels are traveling or what type of
marine mammals they are observing. Data that are available to NMFS at
this time show a low sightings record of large whales in the Mid-
Atlantic from June 1 through August 31. NMFS is not opposed to
receiving new information on large whales in this area and would
welcome sightings and effort data from Mid-Atlantic whale watching
vessels.
Comment 43: One commenter said that he takes sea-sampling observers
out everyday and is willing to take someone with him if it would help
determine if whales are there.

[[Page 57120]]

Response: NMFS appreciates the support and assistance being offered
by this commenter. Sea-sampling observers do collect large whale
sightings data, however, this is one of many data collection
responsibilities. If a right whale is sighted, the sighting is entered
directly into the SAS Right Whale Reporting System. However, broad-
scale surveys are the best source of information on the spatial and
temporal distribution of large whales.
Comment 44: One commenter said that humpback whales can be
consistently found in the Gulf of Maine during a longer period (April-
December) than indicated in the DEIS. The commenter also believed that
data presented were obtained by analysis of a right whale sightings
database with opportunistic data for other large whale species. The
commenter said that humpback whales have different ecological
characteristics than right whales and do not use the same feeding
habitats concurrently. The commenter believed that opportunistic
sightings data may not paint a representative picture of the spatial
and temporal distribution of humpback whales.
Response: NMFS has modified the FEIS to reflect this comment.
However, NMFS did not analyze only opportunistic sightings data when
analyzing the distribution of other large whale species. Systemic
sightings data (e.g., NMFS survey data), are incorporated into the
NARWC Database (curated by URI). These aerial and vessel surveys are
conducted throughout the Atlantic coast, and although many surveys are
focused on right whale documentation, many other surveys are conducted
to sight and record the location of other large whale species or marine
mammals.
Comment 45: One commenter believes whales that get entangled are
sick, which inhibits their ability to navigate around gear. The
commenter further believes whales get entangled in ghost gear (e.g.,
trailing lines and refuse).
Response: Currently there is no data to support this hypothesis.
Scarification analyses indicate a large percentage of whales interact
with fishing gear, with most surviving these encounters. Also, at this
time, NMFS cannot state conclusively that whales are becoming entangled
in ghost gear.
Comment 46: One commenter wanted to know if the economics and
technological feasibility of implementation had been considered.
Response: The specific meaning of the ``economics and technological
feasibility of implementation'' is unclear. The commenter may refer to
the public sector cost of administering and enforcing the proposed
rules; such an analysis is not required in an EIS. Alternatively, the
commenter may be referring to the economic impact of the proposed
alternatives on the fishing industry, a subject addressed extensively
in the EIS. Chapter 6 estimates per-vessel and industry-wide
incremental costs for affected fisheries. Chapter 7 considers the
socioeconomic impact of the alternatives, i.e., what geographic areas
are most affected and will the regulations affect the economic
viability of fishing operations. Furthermore, the regulatory
flexibility analysis (Chapter 11) focuses on the implications of the
rules for small business.

General Comments on Proposed Alternatives

Comment 47: NMFS received many comments stating that none of the
proposed alternatives would sufficiently protect large whales for
several reasons that include: (1) The proposed regulations will not
achieve PBR; (2) the proposed actions may not achieve the goals of the
MMPA; and (3) proposed regulations need to be strengthened, as it is
NMFS' mandate under the ESA.
Response: NMFS disagrees with the commenters' assessment that none
of the proposed alternatives would sufficiently protect large whales.
NMFS believes that the EIS represents a comprehensive suite of
alternatives to amend the ALWTRP as well as a thorough analysis of the
impacts of the proposed alternatives on the human environment. NMFS
worked with the ALWTRT to help evaluate the ALWTRP and discuss
additional modifications necessary to meet the goals of the MMPA and
ESA.
Comment 48: Numerous commenters stated that more time is needed to
evaluate whether the current plan is working. Many believed that other
ALWTRP measures (i.e., weak links, critical habitat closures, buoy
modifications, and limited time-area closures) should be properly
evaluated to determine their effectiveness before implementing a
prohibition on floating groundlines.
Response: Since right, humpback, and fin whales are listed as
endangered species under the ESA, they are considered strategic stocks
under the MMPA. In response to its obligations under the MMPA, NMFS
established the ALWTRT to develop a plan for reducing the incidental
take of large whales in commercial fisheries to below the PBR. PBR for
right whales is set at zero. Consequently, if any right whale is
entangled in commercial fishing gear that has been determined to be
from the sink gillnet or pot/trap gear, NMFS must take additional
action to protect right whales. Evaluation of implementation and
effectiveness of existing measures is ongoing; however, since serious
injury and mortality of large whales in commercial fisheries exceeds
PBR, NMFS needs to take additional action in response to its
requirements under the MMPA.
Comment 49: Some commenters stated that until research shows how,
when, and where whales become entangled in fishing gear, none of the
alternatives should be implemented. One commenter believes research is
needed regarding where and when whales are most at risk. Otherwise, the
commenter believes a new management plan may be ineffective to protect
whales, while also causing economic hardship to fishermen. The
commenter believes new rules must be based on the most recent data and
build in flexibility to generate new data for consideration.
Response: The FEIS notes that entanglements of large whales are
still occurring in sink gillnet and trap/pot gear and highlights the
legal mandates of the MMPA and ESA that NMFS is required to follow.
Based on the continued serious injury and mortality of large whales due
to entanglement in these gear types, NMFS must take action to provide
more protection to large whales. Although NMFS acknowledges a need for
more scientific information, NMFS is required to take action based on
the best information that is available when developing the EIS. As new
information becomes available regarding large whales, entanglements, or
commercial fishing gear modifications, NMFS will share this information
with the ALWTRT to determine if additional changes to the ALWTRP are
warranted.
Comment 50: Several commenters urged NMFS to develop whale rules
with as much flexibility as possible, allowing for innovations to be
implemented as they are developed. One commenter believes that as NMFS
constructs the final rule for this Plan, the agency should adopt a
flexible and adaptive approach, and continue refining the regulations
on a region-by-region basis. The commenter also believes that,
considering our limited understanding of large whale ecology across
diverse habitats, as well as the variability among the dozens of
different fixed gear fisheries along the Atlantic seaboard, the Plan
must be flexible and responsive to changing ecological and economic
conditions over time.
Response: NMFS acknowledges this very important comment and will
continue to work with the ALWTRT and

[[Page 57121]]

with its legal mandates and requirements to help facilitate better
flexibility within the ALWTRP regulations. NMFS has developed and
implemented flexible regulations in the past, but learned that the
mandates and requirements that NMFS must follow limited NMFS'
flexibility and ability to react quickly. In addition, in many
instances, NMFS is also limited by the lack of information available to
implement flexible regulations. NMFS will continue to explore the
concept of flexible rulemaking with the ALWTRT.
Comment 51: One commenter stated that the 2001 biological opinions
on the American Lobster, Multispecies, Spiny Dogfish, and Monkfish FMPs
make clear that unless the agency identifies an alternative that would
eliminate entanglement and ship strikes, the alternative is unlawful.
Response: The 2001 Biological Opinion included an RPA composed of
several measures that were subsequently incorporated into the ALWTRP.
The Biological Opinion also included criteria to monitor the RPA's
effectiveness. The RPA and monitoring criteria are based solely on
right whale entanglements with commercial fishing gear, not ship
strikes. Ship strikes are evaluated through a separate action in
support of the implementation of the national right whale ship strike
strategy. At that time, the 2001 Biological Opinion concluded that the
RPA was sufficient to allow the commercial lobster trap/pot fishery to
continue. However, since that time NMFS has reinitiated consultation on
the continued implementation of the American lobster fishery in federal
waters based on new information on the effects of the fishery on right
whales. This consultation is ongoing. NMFS will consider changes to the
ALWTRP during consultation on the American lobster fishery.
Comment 52: One commenter asked how many lethal takes are expected
to occur under the status quo and how many lethal takes are expected to
occur under each alternative.
Response: NMFS cannot predict how many lethal takes are expected to
occur under each alternative. The evaluation of the impact of
regulatory changes on whale entanglement risks is largely qualitative.
This approach is necessary because models that would enable NMFS to
conduct a rigorous quantitative assessment of such risks do not exist.
The known threat that commercial fishing poses to large whales is the
risk of incidental entanglement in commercial fishing gear. The
regulatory changes under consideration are designed to reduce harm to
large whales by reducing the likelihood of entanglement and/or reducing
the severity of an entanglement should one occur. NMFS seeks to achieve
these objectives through a combination of two general measures: (1)
Gear modification requirements; and (2) restrictions on fishing
activity at specified locations and times. Chapter 5 of the EIS
examines the impact of these measures on whale entanglement risks.
Comment 53: Several commenters disagreed with NMFS' conclusion that
gear modifications were necessary for tended and/or actively fished net
fisheries.
Response: NMFS specifically requested public comment on whether
gear modifications were warranted for gear that is tended and/or
actively fished. NMFS is not implementing the proposed weak link
requirement for tended driftnet gear at this time due to potential
safety issues that were raised. Thus, NMFS believes further research on
this fishery, and specifically testing weak links in drift gillnet
gear, is needed before weak links should be required.
Comment 54: One commenter suggested the alternatives should be
harmonized with other federal mammal protection plans (e.g., the
bottlenose dolphin protection plan) to prevent the possibility of
creating several plans each with their own unique requirements.
Response: Chapter 9 of the EIS includes a cumulative effects
analysis that examined the impacts of this action in conjunction with
other factors that affect the physical, biological, and socioeconomic
resource components of the affected environment. The purpose of the
cumulative effects analysis is to ensure that Federal decisions
consider the full range of an action's consequences, incorporating this
information into the planning process. The cumulative effects analysis
studies the impacts of the regulatory alternatives to other federal
marine mammal take reduction plans and fisheries management plans
within the context of other past, present, and reasonably foreseeable
future actions.
Comment 55: Several commenters believed that the proposed rule
should not apply to Florida gillnet fisheries for several reasons: (1)
Some non-shark fisheries currently use rope that has a breaking point
of 800 lb (362.9 kg), well below the 1,100-lb (499.0-g) weak link
breaking point indicated in the take reduction plan; (2) night fishing
is allowed only if strike nets are deployed (strike nets are set in a
circle and sink two to five feet (0.6 to 1.5 m) below water; the net is
then retrieved); (3) anchored gillnets are not used by Florida
fisheries; (4) sinking or neutrally buoyant line is already used on
buoys; and (5) gillnets are always tended (i.e., within eyesight of
fishermen).
Response: NMFS acknowledges that some gillnet fisheries conducted
off the coast of Florida may already use gear that is more restrictive
than that gear proposed in the EIS. However, NMFS believes that there
are several new and emerging fisheries that do not prescribe to the
gear requirements noted by the commenter. This final rule will regulate
several new fisheries under the ALWTRP through the Category I and II
annual list of fisheries process implemented under the MMPA. The final
rule provides protection to large whales from these new and emerging
fisheries and, at the same time, ensures that the current fisheries
have an established baseline for large whale protection.
Comment 56: One commenter supports the implementation of a pre-1997
status quo.
Response: A pre-1997 status quo option was not analyzed in the
DEIS. Section 118 of the MMPA requires that NMFS reduce bycatch of
strategic marine mammal stocks incidentally taken during commercial
fishing operations. The level of documented serious injury and
mortality of right, humpback, and fin whales due to entanglement in
fishing gear required NMFS to convene a take reduction team and develop
a take reduction plan to protect these whales. This final rule
implements modifications to the ALWTRP, which are necessary because
NMFS has evidence that serious injury and mortality in commercial
fishing gear is still occurring at unsustainable levels.

Comments Specific to Each Alternative

Comment 57: NMFS received numerous comments in support of
Alternative 1. Commenters believed NMFS has not provided data to show
there is a problem that warrants amending the current ALWTRP. Other
commenters thought existing regulations have not been given enough time
to work. One commenter also said that economically, in today's dollars,
it would probably cost $8,000 to replace groundline as proposed in the
other alternatives, and the way that the material is increasing in
price, costs could be greater than $10,000 by 2008.
Response: NEPA requires NMFS to analyze a no action alternative
(Alternative 1). NMFS did not choose to finalize this alternative
because it does not adequately protect large whales, and therefore,
does not satisfy the

[[Page 57122]]

requirements of the MMPA or ESA. Due to the endangered status of the
North Atlantic right whale population, and the insufficiency of
existing measures in addressing right whale mortality, there is a need
to further reduce serious injury and mortality. NMFS has determined
that the additional regulatory measures included in this action are
necessary to meet the objectives of the ESA and the MMPA. The ESA
requires that NMFS ensure that activities it authorizes, including
commercial fishing, do not jeopardize the continued existence of
endangered and threatened species. The MMPA provides that the immediate
goal of a take reduction plan is to reduce incidental mortality and
serious injury of marine mammals taken in the course of commercial
fishing to levels less than the PBR level and the long-term goal is to
reduce such incidental mortality and serious injury to insignificant
levels approaching a zero rate. These regulatory changes are necessary
to attain these goals.
The costs associated with converting to sinking and/or neutrally
buoyant groundline will vary by vessel, depending on the quantity of
gear fished. The $8,000 to $10,000 range specified by the commenter may
be valid for certain vessels. In the FEIS, gear replacement costs have
been revised to incorporate up-to-date data on key inputs such as
groundline. Chapter 7 of the EIS identifies vessel segments that may be
heavily impacted by comparing average vessel revenues with compliance
costs. The analysis suggests that under Alternative 6 Final
(Preferred), a limited number of small vessels are most at risk.
Although costs are high for some vessels, NMFS made modifications to
the final rule, based on public comment, to decrease costs where
possible while still meeting its goals under the MMPA and ESA (see
Changes from the Proposed Rule section of the preamble). While these
vessels may still realize high costs relative to revenues, fishermen
have some options to try to mitigate the costs. For example, the
impacts of converting to sinking and/or neutrally buoyant groundline
may be defrayed, in part, by current and future groundline buyback
programs operated by NMFS and other partners. In addition, although the
requirements under Alternative 6 Final (Preferred) may impose
significant costs within the first year after publication of the final
rule (to convert all groundline to sinking and/or neutrally buoyant
groundline), fishermen may be able to distribute the cost of the new
gear over its useful life by seeking a loan. After the first year,
ongoing costs would be significantly lower as fishermen would only need
to replace worn-out and lost gear.
Comment 58: NMFS received a comment opposing Alternative 1.
Response: NMFS agrees with the commenter (see response to Comment
57).
Comment 59: One commenter supports Alternative 1 until the shipping
industry and Navy have been regulated so their take is considerably
less than it is now.
Response: NMFS recognizes that other marine resource users such as
the shipping industry and the U.S. military are impacting large whale
species, and NMFS is simultaneously pursuing various regulatory and
non-regulatory means of addressing the ship strike issue (see response
to Comment 279). However, serious injury and mortality to large whales
due to entanglement continues to occur under the current regulations,
and as such, NMFS must continue to address the impact by modifying the
ALWTRP as appropriate.
Comment 60: Numerous commenters expressed support for Alternative 2
stating that it is the only option that truly affords large whales
protection from the risk of entanglement.
Response: Alternative 2 is the most conservative, risk-averse
approach to the protection of endangered whales because it would
require year-round use of low-risk gear along the entire Atlantic
coast. However, based on the available sighting information the
potential for entanglement of whales in the Mid-Atlantic or South
Atlantic waters during summer months is minor. Therefore, the year-
round requirements provided in Alternative 2 would likely offer a
minimal risk reduction benefit relative to NMFS' preferred alternative,
Alternative 6 Final, which incorporates seasonal requirements based on
sightings data documenting the movements of large whales.
Comment 61: NMFS received several comments objecting to Alternative
2. In addition, one commenter proposed specific changes to Alternative
2 regarding the number of traps per trawl in specified areas.
Response: NMFS agrees with the commenters (see response to Comment
60). NMFS has reverted back to the status quo for the number of traps
per trawl in specified areas.
Comment 62: Several commenters expressed support for Alternative 3.
One commenter supported the alternative because it incorporates
seasonal components. Another commenter would only support Alternative 3
if the Mid-Atlantic northern boundary was moved to the southern border
of Delaware, in order to better protect whale habitat. Conversely, NMFS
received many comments objecting to Alternative 3. One commenter
believed its requirements may cause effort to shift into exempted
areas. The commenter believes the line drawn from Watch Hill Point, RI
(41[deg]18.2' N. lat. and 71[deg]51.5' W) south to 40[deg]00' N. is
arbitrary and not sufficiently protective of right whales, which have
sometimes been seen west of 72[deg]00' W. The commenter states that
NMFS used sightings data to determine this line, but those data are not
included in the DEIS. Further, the commenter believes a more regional
management approach is prudent and suggested that NMFS analyze
incorporating the ``Middle Zone'' boundary.
Response: The DEIS identified Alternative 3 as one of its preferred
alternatives because of the risk reduction benefit of implementing
broad-based gear modifications on a seasonal basis. NMFS did consider
implementing Alternative 3 along with the commenters proposed change to
the northern boundary of the Mid-Atlantic area. However, the available
sighting information did not support the proposed change to the Mid-
Atlantic boundary. At this time, NMFS considers waters south of Watch
Hill Point, RI (41[deg]18.2' N. lat. and 71[deg]51.5' W) to have a
seasonality for Atlantic large whales (e.g., migratory corridor).
Although animals may be present in Mid-Atlantic waters outside the
seasonal period defined in this final rule, recorded large whale
sightings are rare at that time for waters south of Long Island Sound.
Thus, moving the northern boundary of the Mid-Atlantic management area
to the southern border of Delaware would not offer substantial risk
reduction for large whales. However, NMFS will reconsider such measures
if it receives additional data for such areas and seasons. In addition,
NMFS believed that Alternative 6 also offered more immediate protection
to right whales and identified this as the other preferred alternative
in the DEIS.
NMFS recognizes that there have been sightings of right whales west
of 72[deg]00' W.; however, such events are uncommon. The seasonal
variation in gear modification requirements is based on whale
distribution data in NMFS' analysis of the NARW Sightings Database
through early 2003, supplemented by additional data on humpback and fin
whale sightings.
Comment 63: NMFS received several comments in support of and in
opposition to Alternative 4.
Response: Alternative 4 is one of the more risk-averse approaches
to the protection of endangered whales

[[Page 57123]]

because it would require year-round use of low-risk gear from the coast
of Maine through the South Carolina/Georgia border and seasonal
restrictions off the coast of Georgia and Florida. However, based on
sighting information, the potential for entanglement of whales in the
Mid-Atlantic waters during summer months is low. Therefore, the year-
round requirements provided in Alternative 4 for the waters off the
Mid-Atlantic coast would likely offer a minimal risk reduction benefit
relative to NMFS' preferred alternative, Alternative 6 Final, which
incorporates seasonal requirements based on sightings data documenting
the movements of large whales.
Comment 64: NMFS received many comments in support of Alternative
5. Most comments in support of Alternative 5 were from the commercial
fishing industry from Maine. Many of these commenters supported
Alternative 5 only if the status quo alternative (Alternative 1) could
not be maintained. Others believed Alternative 5 best suited fishermen
in Maine because Maine fishermen would only have to shoulder a small
fraction of the compliance costs under this alternative as compared to
the other alternatives. One commenter believed that Alternative 5 has
the least impact on Maine fishermen while still meeting baseline whale
protection goals of the ALWTRP. Two state representatives and several
other commenters supported Alternative 5 as it did not prohibit the use
of floating rope. Similar comments were also received from fishermen
from the Mid-Atlantic and Southeast.
Response: As noted in the response to Comment 57, the status quo
Alternative 1 does not adequately protect large whales resulting in
NMFS determination that regulatory changes are necessary to attain the
goals of the ESA and MMPA. Of the remaining alternatives considered,
NMFS believed that Alternative 5 was the least conservative, risk-
averse approach to the protection of endangered whales. Although the
SAM area was proposed to be expanded beyond what is currently required,
the use of low-risk gear (e.g., prohibition on floating groundline) was
only required in a relatively small area along the entire Atlantic
coast. Thus, NMFS believed Alternative 5 offered less protection to
large whales compared to the final preferred alternative because the
risk of serious injury and mortality is greater under Alternative 5 and
less likely to obtain the goals under the ESA and MMPA.
Most fishermen seemed to prefer Alternative 5 based primarily on
economic impacts. By adopting Alternative 5, the cost of compliance
would be shifted to fishermen who fish within the smaller SAM area.
However, based on the available sighting information, NMFS believes the
potential for entanglement of whales can occur outside of SAM areas.
Although Alternative 5 produces the lowest economic effect to industry,
it provides a lower risk reduction benefit compared to both the
seasonal and area requirements provided under NMFS' preferred
alternative, Alternative 6 Final, which is based on the movements and
sightings of large whales.
Comment 65: The States of Connecticut and New York concurred with
NMFS' determination that the proposed measures are consistent with the
state's Coastal Zone Management (CZMA) Program, provided that NMFS
exempt Lobster Management Area 6 (LMA 6) from the requirements of the
ALWTRP. They noted that the available sightings information indicates
that large whales do not frequent this area and there is a significant
increase in the risk of gear loss. They further identified Alternative
5 as its first preference, but noted that should NMFS not select
Alternative 5, that they would favor Alternative 6.
Response: NMFS reviewed the available sightings information within
LMA 6 and determined that the potential for entanglement of whales is
low in this area while the potential for gear loss is high. Therefore,
NMFS has expanded the exemption line in Rhode Island sound to extend
from Watch Hill, Rhode Island, to Montauk Point, New York. As noted in
the response to Comment 64, NMFS believes Alternative 5 provides a
lower risk reduction benefit compared to both the seasonal and area
requirements provided under NMFS' final approved Alternative 6, which
is based on the movements and sightings of large whales.
Comment 66: Several commenters objected to Alternative 5 stating
that it is the least protective alternative to protect large whales.
Response: Not including the status quo Alternative 1, NMFS agrees
that Alternative 5 was the least conservative, risk-averse approach to
the protection of endangered large whales and did not select this
alternative in the final rule.
Comment 67: One commenter stated that Alternative 5 does not
include a phase-in of gear modification requirements (i.e., there are
no broad-based gear modifications outside of expanded SAM). The
commenter believes that NMFS should justify this by showing the level
of risk reduction for Alternative 5 with respect to other alternatives,
or how risk reduction deficiencies would be compensated elsewhere.
Response: Chapter 5 of the EIS provides a detailed discussion of
the risk reduction associated with Alternative 5 relative to the other
alternatives. Consistent with the comment, Chapter 5 concludes that the
absence of broad-based gear modification requirements in Alternative 5
would result in lower risk reduction benefits for large whales.
Comment 68: One commenter believes that if NMFS were to implement
Alternative 5, SAM areas may be further expanded even more in the
future.
Response: The SAM area developed in Alternative 5 was based on the
best sightings information available. However, had NMFS selected
Alternative 5, NMFS could have modified the SAM area through a separate
rule if an expansion of the SAM area was warranted.
Comment 69: A commenter recommended that if Alternative 5 is
selected it should be effective September 1-March 31 in the Mid-
Atlantic. The commenter pointed out that year-round closures are
unnecessary in the Mid-Atlantic area (especially around New Jersey)
since sightings of large whale tend to occur between January and March.
Response: Seasonal gear modifications for the Mid-Atlantic will be
required from September 1-May 31, as defined in this final rule. At
this time of year, large whales primarily occur and are still migrating
from southern waters to northern feeding grounds (through April and
May). NMFS believes that implementing regulations through March 31
would not offer adequate protection.
Comment 70: Several commenters believed that Alternative 5 was
impracticable because it required 600-lb. (272.2-kg) weak links for
vertical lines, which would snap in heavy tides and lead to more ghost
gear (i.e., gear lost at sea).
Response: There is no 600-lb. (272.2-kg) weak link requirement for
vertical lines. The 600-lb. (272.2-kg) weak link requirement is for
flotation and/or weighted devices added to the vertical line. Due to
results from load-testing analyses, NMFS believes these breaking
strengths are appropriate.
Comment 71: NMFS received a few objections to Alternative 6; one
commenter opposed Alternative 6 because of the seasonal component of
the broad-based gear modifications. However, numerous other commenters
expressed support for Alternative 6. One

[[Page 57124]]

commenter asked that NMFS only apply Alternative 6 where whales have
been sighted.
Response: NMFS believes that Alternative 6 (Final) offers the best
risk reduction benefit to protect endangered whales because it requires
the use of low-risk gear in areas and times shown to have a high
abundance of large whales. Because of their migratory patterns, large
whales are primarily present in Mid- and South Atlantic waters during
particular months while they appear to be in New England waters on more
of a year round basis. Alternative 6 (Final) requires low-risk gear on
a seasonal basis for fisheries in the Mid- and South Atlantic while
requiring low risk gear on a year round basis in the New England area.

Comments on Exemption Lines/Areas

Comment 72: One commenter believed exemption lines should be
proposed by state governments.
Response: As part of the scoping process provided under NEPA, NMFS
conducted several scoping meetings throughout the Atlantic coast. At
each meeting, NMFS made available a scoping document that contained
issues and options for modifications to the ALWTRP. The document
contained a section concerning exemption areas and requested input from
the general public, including state representatives on the ALWTRT, to
identify exemption areas. The proposed exemption areas have been
developed in response to requests from state fishery management
agencies, as well as others, and are designed to ensure that the ALWTRP
does not unnecessarily extend commercial fishing regulations to waters
in which endangered or protected whales have been rarely, if ever,
observed. However, partially based on the comments submitted by
interested states, NMFS modified the proposed exemption areas. The
Changes from the Proposed Rule section of the preamble discusses these
exemption line changes. NMFS will continue to monitor all exempted
areas, and encourage states to develop contingency plans in the event a
large whale is sighted in such areas.
Comment 73: Many commenters supported using the International
Regulations for Preventing Collisions at Sea (COLREGS) to base
exemption lines. However, one commenter did not support using the
COLREGS in Buzzards Bay and Long Island Sound and requested NMFS to
review large whale sightings and reconsider these exemptions. Another
commenter stated there is little evidence to support exempting Buzzards
Bay and Cape Cod Canal from gear modification requirements because
sightings data corroborate that whales do occur in both areas.
Response: NMFS reviewed the large whale sightings for Long Island
Sound and has amended the proposed exemption line. The new exemption
line runs from Watch Hill, RI, to Montauk Point, NY. Based on comments,
NMFS will revert to the status quo exemption lines for Massachusetts,
which includes Buzzards Bay. Thus Buzzards Bay will not have an
exemption at this time. See response to Comment 77 for more specific
information about Massachusetts.
Comment 74: Many commenters believe that there need to be
exemptions within 3 nautical miles (5.6 km). One commenter stated that
the considered regulations seem unfair and unsafe for those fishing
near the shore, where they said whales are not seen. Several other
commenters believed that SAM areas should not exist inshore of 3
nautical miles (5.6 km) due to the fact that no whales have been seen
within 3 nautical miles (5.6 km) of shore.
Response: NMFS has received many reports throughout New England and
the Mid-Atlantic detailing numerous sightings of large whales within 3
nautical miles (5.6 km) of shore. Therefore, NMFS does not believe
exemptions within the 3 nautical mile (5.6 km) line along the coast
would provide adequate protection for large whales and is not
appropriate at this time.
Comment 75: One commenter stated that NMFS has no means to require
modifications if whale habitat use changes (e.g., if fisheries expanded
to > 280 fathoms (512.1 m or 1,680 ft) or if right whale habitat use
changes due to potential climatic shifts. Such changes could result in
whales using proposed exempted areas, such as Delaware and Chesapeake
Bays.
Response: Should new information become available that indicates
that a change in the inshore or deep water exemption areas is
warranted, NMFS will share the information with the ALWTRT and will
take appropriate action.
Comment 76: One commenter believes the 280 fathom (512.1 m or 1,680
ft) groundline exemption should be flexible and revisited when the
agency has more research information and sightings data.
Response: Currently available dive data suggest that large whales
do not dive deeper than 280 fathoms (512.1 m or 1,680 ft). Data come
from world-wide observations and are not limited to the Gulf of Maine.
As with all exempted areas, if NMFS is presented with new information
on the diving behavior of large whales along the east coast that calls
the 280 fathom (1,680 ft or 512.1 m) depth level into question, then it
will revisit regulations in waters greater than 280 fathoms (512.1 m or
1,680 ft) if necessary. See Comment 75.
Comment 77: Several commenters oppose the proposed exemption line
for Massachusetts for the following reasons: (1) It would cause a
safety issue as there are 8,000 recreational lobstermen in the state
and enforcing ALWTRP requirements so close to shore could be dangerous;
(2) the proposed area is too small to benefit fishermen; and (3) nearly
all trap/pot fishermen who fish in the exempted area have received a
75-percent subsidy to convert to sinking groundline, therefore,
exempting these areas would be difficult to explain and enforce.
Response: NMFS agrees with the concerns raised by the commenters
and therefore did not adopt the proposed expansion of the exemption
line within Massachusetts state waters. Should new information become
available to alleviate these concerns, NMFS in consultation with the
ALWTRT, may take future action to modify the exemption line.
Comment 78: Numerous commenters expressed concern for exemptions in
the area known as ``the Race'' in Connecticut and New York. The
commenters suggested that waters west of a straight line drawn from
Montauk Point, Long Island, to Watch Hill, Rhode Island (current
Lobster Management Area 6 line), should be excluded from the proposed
amended ALWTRP.
Response: Discussed in response to Comment 65, NMFS reviewed the
available sightings information within LMA 6 and determined that the
potential for entanglement of whales is low in this area while the
potential for gear loss is high. The data revealed that large whales
are rarely sighted near the mouth of Long Island Sound and there are no
documented interactions between whales and fishing gear in this area.
Upon further inspection NMFS found that this area falls on either side
of the current exemption line and has exceptionally strong currents
with varying depths and very rocky topography. This area also has high
vessel traffic where gear loss is already common. NMFS believes that
the use of sinking groundline and 600-lb (272.2-kg) weak links in this
area coupled with the issues noted above would increase this gear loss
and create a safety risk to fishermen. Consequently, NMFS has modified
the exemption line in Long

[[Page 57125]]

Island Sound to run from Watch Hill, RI, to Montauk Point, NY.
Comment 79: One commenter recommended that NMFS check the accuracy
of Exhibit 6H-1. The commenter stated that Connecticut fishermen
operate in waters other than Connecticut waters; they report commercial
fishing activities outside of Connecticut waters to the CTDEP and they
fish in the ``Race'' under New York non-resident commercial lobster
licenses. The commenter believes the assumption in Exhibit 6H-1, that
vessel activity for state-permitted vessels is equally distributed only
within state waters, is not accurate. Also, the commenter believes
Exhibit 6G-2 is not accurate because, although there are fishermen who
operate in Connecticut waters inside Long Island Sound, which is
exempted, there are also vessels that fish in the ``Race'' and are
affected by ALWTRP requirements.
Response: NMFS recognizes that Connecticut lobstermen fish in New
York State waters. The analysis of other trap/pot and gillnet vessels
applies a broad assessment of licenses issued by New York that likely
includes licenses to out-of-state vessels. NMFS acknowledges that
Connecticut-based vessels that purchase trap tags from Connecticut may
not be accounted for under Alternatives 2 through 6 Draft (in the
DEIS). However, under the preferred alternative, Alternative 6 Final,
the portion of waters referred to in this comment (the ``Race'') would
be exempted from the proposed regulatory requirements. As a result,
under the preferred alternative, Connecticut-based vessels operating in
these waters would not be affected by the regulations. The EIS
acknowledges that fishing activity is not likely to be equally
distributed throughout state waters. Data on the location of state-
permitted vessel activity are unavailable; in lieu of better data, the
analysis employs assumptions that provide a reasonable basis for
estimating the number of affected vessels. To the extent that fishing
activity is disproportionately concentrated in waters exempted from the
requirements, fewer vessels than estimated in the EIS would be
affected. Conversely, to the extent that activity is disproportionately
concentrated outside of the exempted waters, more vessels than
estimated in the EIS would be affected.
Comment 80: One commenter wants LMA 2 to be exempt from any new
regulations as no whales are seen in that area. Another commenter said
that there is no Dynamic Area Management (DAM) density in Area 2, thus,
the area should be exempt.
Response: LMA 2 is located in Southern New England nearshore
waters, south of Cape Cod and off the southern coast of Rhode Island.
Despite the fact that a DAM may not have been triggered in this area,
NMFS sightings data indicate that right whales are occurring within LMA
2. Although sightings may not be numerous, right whales have been seen
in these waters, including areas outside of Long Island Sound and Block
Island. It should also be noted that DAM zones are a regulatory measure
only intended for Northern right whales. Thus, a lack in DAM density is
not a reliable indicator of whale distribution of other species, in
general. Other large whale species covered under the ALWTRP that would
not trigger a DAM are known to occur in this area.
Comment 81: One commenter believed that NMFS does not have a plan
to deal with gear in exempted areas if and when right whales are
reported in those exempted waters. The commenter stated that since 2002
it does seem that there have been a lot more of what is considered to
be out of season/out of habitat sightings and there is no way for NMFS
to deal with them.
Response: The changes to the exemption lines have been developed in
response to requests from state fishery management agencies, as well as
others, and are designed to ensure that the ALWTRP does not
unnecessarily extend commercial fishing regulations to waters in which
endangered or protected large whales have been rarely, if ever,
observed and there is low risk. In developing the revised exempted
areas, NMFS reviewed the available sightings information (including
information since 2002) and right whale tracking information where
available, and determined that the potential for entanglement of whales
is low in these areas so that no changes to the exemption lines are
needed, other than those modifications noted in this final rule. NMFS
will continue to monitor all exempted areas, and encourage states to
develop contingency plans in the event a large whale is sighted in such
areas. Should new information become available that indicates that a
change in the exemption areas is warranted, NMFS will share the
information with the ALWTRT and will take appropriate action.
Comment 82: One commenter believes that the proposal to exempt
inshore of the 50-fathom (91.4-m or 300-ft) curve to explore low
profile groundline is inappropriate. The commenter states that this
proposal would put whales at risk.
Response: The alternatives provided in the DEIS and proposed rule
did not include a proposal to exempt inshore of the 50-fathom (91.4-m
or 300-ft) curve to explore low profile groundline.
Comment 83: Several commenters believe that NMFS should analyze the
50-fathom (91.4 m or 300 ft) curve in Maine as a line for delineating
gear modification requirements (i.e., exempt inshore of 50 fathoms
(91.4 m or 300 ft)). They believe this may protect right whales going
to and from the Bay of Fundy while allowing operationally realistic
risk reduction gear modifications.
Response: NMFS sightings data confirms the frequent occurrence of
right whales in waters landward of the 50-fathom (91.4-m or 300-ft)
curve (e.g., southern Maine), thus it would not be an appropriate
exemption line.

Comments on Proposed Exemption Lines in Maine

Comment 84: One commenter said that if there is going to be an
exemption line set, it should be based off LMA 1, which already has a
line 40 miles (64.4 km) out. The commenter suggested using this line
until research shows a problem inside the line. The commenter said the
problem is not in the nearshore fishery where 95-percent of fishermen
in the State of Maine are fishing.
Response: In developing potential changes to state exempted waters,
NMFS reviewed the NARW Sightings Database from 1960 through mid-
September 2005 containing dedicated survey effort and opportunistic
sightings data, which is supplemented by additional data on humpback
and fin whale sightings, sightings data collected from 2002 through
2006 through the NEFSC systematic aerial surveys and the Northeast U.S.
Right Whale SAS, as well as a large whale sightings database compiled
by Maine DMR, for data on right, fin, and humpback whale sightings from
1960 to 2002. The areas that would be newly exempted from ALWTRP
requirements contained in this final rule include only those in which
whales are only occasionally found and are at low risk, as suggested
both by NMFS' review of the data and its current understanding of whale
behavior. NMFS does not believe that regulating the waters that will be
exempted from the ALWTRP would have a significant benefit to large
whales. The sightings data do not support exempting state waters out to
40 nautical miles (64.4 km). Exempting this large of an area from
ALWTRP regulations would likely have a significant, direct effect on
large whales.

[[Page 57126]]

Comment 85: NMFS received numerous comments in support of using the
Maine DMR's suggested exemption line.
Response: After re-examining the sightings information from the
available data sources noted in the response to Comment 84 with respect
to both NMFS' proposed and Maine DMR's suggested exemption lines, NMFS
concluded that exempting areas inside the State of Maine's suggested
exemption line will provide an adequate level of protection to
endangered large whales. Thus, the final exemption line for the state
of Maine will use the coordinates of the exemption line suggested by
Maine DMR.
Comment 86: If NMFS retains the proposed exempted line, commenters
asked NMFS to consider the exempted lines in Maine from headland to
headland (e.g., Cape Small to Cape Elizabeth and Two Lights) rather
than using the COLREGS because this area would encompass the same
bottom type and fishing patterns. In addition, one commenter also
stated that there is no exemption proposed for Penobscot Bay.
Response: NMFS agrees with the commenters' concerns and will not
use the COLREGS line in Casco Bay; instead the exemption line will run
just outside Casco Bay by a line connecting a series of buoys. The
location of the exemption line in Casco Bay is the same as that
suggested by Maine DMR. Moving this exemption line from the COLREGS
line to the line suggested by Maine DMR will not have great economic or
biological impacts because there are few affected vessels and
infrequent whale sightings. For exempting Penobscot Bay, NMFS' proposed
exemption line incorporated three coordinates from Maine DMR's
suggested exemption line to exempt the Penobscot and Blue Hill Bay
areas. These coordinates will remain largely the same.
Comment 87: Several commenters suggested that NMFS consider
extending the Maine state exemption line to the 3-nautical mile (5.6-
km) line. Their reasons include high boating traffic during the summer
resulting in increased gear loss and the lack of whale sightings within
the 3 nautical mile (5.6 km) limit.
Response: NMFS believes that the area exempted under the Maine
state exemption line contained in this final rule includes a
significant portion of the area identified by the commenters as high
vessel traffic areas. Consequently, the potential gear loss related to
boat traffic in areas outside of the Maine exemption line will not have
a significant economic impact to fishermen or create a significant
ghost gear problem. As noted in the response to Comment 85, NMFS
reviewed the available sightings information in conjunction with both
NMFS' proposed and Maine DMR's suggested exemption lines, and is
adopting the latter exempted line in the final rule. The available
sightings information did not support extending the Maine state
exemption line to the 3-nautical mile (5.6-km) line throughout the
coast of Maine.
Comment 88: One commenter thinks NMFS did not use new satellite
tracking data from Maine and instead relied on limited sightings data
to develop exempted areas.
Response: The information used by NMFS to develop and finalize the
state exemption areas was the best scientific information available.
For the final exemption line, NMFS reviewed the available sightings
database (from 1960 through mid-September 2005), large whale sightings
data from 2002 to 2006 collected through the NEFSC's systematic aerial
surveys and the SAS, as well as a large whale sightings database
compiled by Maine DMR, for data on right, fin, and humpback whale
sightings from 1960 to 2002. NMFS considered satellite tracking
information that was contained within published papers to develop and
finalize exempted areas. During the development of the exempted areas,
NMFS considered the paper entitled, ``Satellite-Monitored Movements of
the Northern Right Whale'' (Mate et al., 1997). While finalizing the
exempted areas, NMFS considered the previous paper in addition to the
paper entitled, ``Summer and fall habitat of North Atlantic right
whales (Eubalaena glacialis) inferred from satellite telemetry''
(Baumgartner and Mate, 2005). NMFS will continue to monitor all
exempted areas and should new information become available regarding
the exemption areas, NMFS will share this information with the ALWTRT
to determine if changes to the exemption areas are warranted.
Comment 89: Two commenters questioned the justification of the
Maine exemption line. The commenters requested NMFS to consider
additional tracking data (one commenter provided a graphic with the
tracking data) based on two right whale sightings in Maine waters. One
commenter asked NMFS to see if these whales are landward of the
proposed exemption line. The commenter stated that documented movements
of two whales in a small population suggest that Maine waters are used
more frequently than we know; the other commenter also stated that
entanglement risk still exists when there is a high concentration of
gear and a low concentration of whales. Both commenters stated gear
recovered from the right whales ``Kingfisher'' and ``Yellowfin'', with
one commenter noting that ``Kingfisher's'' gear came from Maine.
Response: NMFS will consider tracking data, and any other new
information that becomes available, and revisit exemption areas in
Maine if necessary. NMFS considered the graphic provided by the
commenter and notes that the two whales discussed in the comments were
included in the Baumgartner and Mate (2005) paper that NMFS also
reviewed. Additionally, as noted in the Final and Draft EIS, NMFS did
consider published reports of tracking data (see response to Comment
88). As indicated in Mate et al. (1997), the accuracy of the whales'
locations depends on the number and distribution of the transmissions
received from the tags during a satellite pass. Based on the number of
transmissions received from the tags during a pass, the locations of
the whales as recorded by the satellite receivers may vary 150 to 1,000
meters from the whales' true locations (Argos, 1990, as found in Mate
et al., 1997). Since the satellite data have levels of error, precise
latitudes and longitudes are not generated by the tags; thus, it is
difficult to determine exactly where these whales were sighted with
respect to the final exemption line for Maine. Although the coordinates
for the sightings were not provided, NMFS did review the available
information and believes the final exemption line for Maine is
appropriate.
Comment 90: One commenter cited Exhibit 6-10, which states that 50-
percent of Maine's waters would be exempted under the proposed
exemption line. However, lobster grounds are only a fraction of state
waters and actual impact upon fishing effort would be greater and
should be analyzed as such.
Response: The EIS acknowledges that fishing activity is not likely
to be equally distributed throughout state waters. Data on the location
of state-permitted vessel activity are unavailable; in lieu of these
data, the analysis employs assumptions that provide a basis for
estimating the number of affected vessels. To the extent that actively
fished lobster grounds are disproportionately concentrated in waters
exempted from the requirements, fewer vessels than estimated in the EIS
would be affected. Conversely, to the extent that actively fished
lobster grounds are disproportionately concentrated outside of the
exempted waters, more vessels

[[Page 57127]]

than estimated in the EIS would be affected.

Comments on Right Whale Critical Habitat

Comment 91: Due to limitations of available technology,
particularly for vertical lines, two commenters recommended that NMFS
adopt seasonal closures to prohibit all gillnet and lobster gear in all
designated right whale critical habitats during times when whales are
known to congregate in those areas until gear modifications that give
reasonable assurance to prevent entanglement are developed. Two
commenters urged NMFS to consider revising right whale critical
habitat. One commenter suggested NMFS revise right whale critical
habitat to include both SAM areas as well as the DAM areas that had
been implemented through 2004. The other commenter suggested NMFS
analyze all available right whale sightings data to reassess
appropriate critical habitat boundaries that encompass high-use feeding
and calving habitat.
Response: NMFS did consider adopting new seasonal closures in
critical habitat areas in response to comments provided during the
scoping process for the DEIS. This issue was included in the DEIS
summary of written scoping comments received. The issue is addressed in
the section of the DEIS that lists the alternatives considered and
rationale for rejection (e.g., implement a gillnet closure in the Great
South Channel Sliver Area from April 1 through June 30), as well as in
the section that describes the alternatives considered (e.g., gillnet
fisheries not currently regulated would be required to abide by current
restrictions which include closures). In the FEIS, NMFS included
additional language to clarify that this comment was considered but
rejected.
There are currently closures in place to protect critical habitat.
Contrary to the sentiments expressed by the commenters, NMFS is not
relieving current restrictions in critical habitat areas. This is
consistent with the Conservationist members' proposal provided at the
2003 ALWTRT meeting that, amongst other measures, critical habitat
restrictions remain in place until vertical and groundline risks are
reduced. In fact, Alternatives 2 through 6 in the DEIS considered that
any gillnet and trap/pot fishery not regulated in these areas be
required to abide by the current Critical Habitat restrictions (e.g.,
gillnet closure in Cape Cod Bay Critical Habitat Area from January 1
through May 15; trap/pot closure in Great South Channel Critical
Habitat Area from April 1 through June 30). Additional closures to
fisheries operating in Critical Habitat areas were not within the scope
of the DEIS.
The preferred alternative in the FEIS takes a broad-based
management approach by expanding the more protective gear modifications
for lobster in Cape Cod Bay Critical Habitat, and lobster and gillnet
gear for the DAM gear modifications coast-wide. Additionally, as
discussed in the FEIS, NMFS believes that there is a need to re-
evaluate whether critical habitat boundaries should be modified, and
revisit the relationship between critical habitat and the ALWTRP before
further changing current requirements in these areas. NMFS is currently
taking a number of steps prior to deciding whether to propose any
revisions to critical habitat, including an analysis of the following:
(1) Southeast U.S. right whale distribution data in relation to
bathymetry and sea surface temperature derived from Advanced Very High
Resolution Radiometer imagery; and (2) characterizing the spatial and
temporal distribution of zooplankton in the Northeast U.S. NMFS hopes
to begin discussions with the ALWTRT regarding these critical habitat
issues and their relationship to the ALWTRP in 2008.

Comments on Closed Areas

Comment 92: Several commenters urged NMFS to continue implementing
closures given the uncertainty of gear modification effectiveness and
until proven gear modifications are implemented. One commenter believes
closures are needed for high-risk areas during peak right whale
occurrence (this is in addition to critical habitat areas) and suggests
removing gear from feeding/calving areas. In New England, the commenter
suggested closing Cape Cod Bay to trap/pot fishing during peak months
based on the best available data at the time (e.g., right whale
surveys, prey abundance). Additionally, the commenter suggested
closures in the Mid-Atlantic during migration (e.g., from the third
week of February to the third week of March and mid-December to mid-
January).
Response: NMFS considered the concept of a total closure to trap/
pot and gillnet gear in unique ``high risk'' areas and determined that
gear modifications developed through the ALWTRT process would result in
more conservation benefits to the animals. The basis for this
determination is two-fold. First, comments received from some ALWTRT
members and the general public during the scoping and public hearing
meetings stated that closures are not an economically feasible option
for commercial fishermen given the uncertainty of right whale
distribution patterns. Despite increased aerial survey effort, there is
still a high degree of variability regarding right whale distribution.
Generally, NMFS has a good understanding of when and where right whales
will be in an area, but the size of the area and timing of when right
whales enter these areas vary year to year. Fishermen could be closed
out of a given area to protect right whales, but the whales might not
yet be in that area. Similarly, the shift in effort to other areas may
also be to areas where right whales are present.
Second, total closures refocus fishing efforts to other areas and
may result in an edge effect where gear is concentrated around the
periphery of a closed area, posing a greater risk of entanglement. NMFS
believes that the gear modifications required in this final rule
prevent entanglements where possible and will alleviate the threat of
serious injury or mortality.
Comment 93: Several commenters stated that closures may not be very
effective in light of right whale movements as indicated by satellite
tracking data. Commenters state that closures may shift gear and effort
to the edges of these areas (i.e., creating a ``wall'' of gear), thus
increasing the entanglement risk for whales and placing gear where the
whales feed and travel.
Response: NMFS believes that the gear modifications required in
this final rule prevent entanglements where possible and will alleviate
the threat of serious injury or mortality. However, if future serious
injury and mortalities due to entanglements are proven to have occurred
in high risk areas where gear modifications are in effect, or in
critical habitat or restricted areas during the relative restricted
periods from allowable gear, NMFS will consider closures for reducing
the serious injury and mortality of large whales due to entanglements
by requiring the complete removal of all trap/pot and/or gillnet gear.
Absent such circumstances, NMFS will continue to work with the ALWTRT
to monitor and modify fishing gear to adequately reduce the risk of
serious injury and mortality of large whales.
Comment 94: One commenter requested that NMFS analyze the existing
Western Gulf of Maine Closure that encompasses most of Jeffreys Ledge
for potential inclusion as a year round modified gear area.
Response: The Western Gulf of Maine Closure and Jeffreys Ledge area
are

[[Page 57128]]

included in ALWTRP management areas. Modifications to these management
areas were considered in Alternatives 2, 3, 4, 5, and 6 in the DEIS.
The final rule requires year-round gear modifications in and around
Jeffreys Ledge. See Chapter 3 section 3.1.7 of the FEIS or the
``Changes to the ALWTRP for Gillnet Gear Requirements'' section of this
preamble for a complete description of the gear modifications required
for this area.
Comment 95: Several commenters said that they supported changing
the restricted period for the Southeast U.S. Restricted Area south of
29[deg]00' N. lat. from November 15-March 31 to December 1-March 31.
Response: Recent data indicate that right whales are rarely sighted
south of 29[deg]00' N. lat. in November or April. Consequently, NMFS
has determined that a restricted period beginning on December 1 and
ending on March 31 is appropriate for the Southeast Restricted Area N.
Comment 96: One commenter said that south of 29[deg]00' N. the area
should be opened due to a lack of whales in the area. One commenter
said that NMFS should consider an area only 6 miles (11.1 km) from
shore.
Response: Aerial survey and other sightings data indicate that
right whales routinely move south of 29[deg]00' N., particularly during
January and February. Reviewing sightings data may suggest most/more
whales occur within a few miles of shore; however, it is important to
note that survey effort is biased toward shore (see Comment 39) and
thus, whales farther from shore are likely undercounted.
Comment 97: One commenter suggested that 26[deg]46.5' N. should be
the southern boundary for Other Southeast gillnet waters.
Response: NMFS believes that 27[deg]51' N. is the appropriate
southern boundary for Southeast Atlantic gillnet fisheries under the
ALWTRP. The line for operational restrictions is north of 27[deg]51' N.
for both Southeast Atlantic gillnet and trap/pot fisheries. Right
whales are occasionally found in waters south of 27[deg]51' N.; thus,
observational requirements (e.g., VMS, gear marking) will be in effect
under this final rule for the Southeastern U.S. Atlantic shark gillnet
fishery from 27[deg]51' N. south to 26[deg]46.5' N. NMFS will continue
to monitor this area from 27[deg]51' N. south to 26[deg]46.5' N. in the
event that sightings data warrant the expansion of management areas or
restricted time periods.
Comment 98: One commenter said that fishing practices south of
29[deg]00' N. lat. off Florida are different from those north of this
line for non-shark gear and this should be recognized in the
regulations.
Response: NMFS agrees with the commenter and is aware that the
Southeast U.S. Atlantic shark gillnet fishery is active primarily south
of 29[deg]00' N. lat. during the restricted period. Furthermore, NMFS
is aware that the Southeast Atlantic gillnet fishery has been active
north and south of 29[deg]00' N. lat. during the restricted period and
that, in general, fishermen are targeting Spanish mackerel with
runaround nets south of 29[deg]00' N. lat. and have used sink gillnets
to target whiting north of 29[deg]00' N. lat. For this reason, and due
to the seasonal north-south movements of right whales, NMFS has divided
the Southeast U.S. Restricted Area into two separate management areas
(N and S) that are divided at 29[deg]00' N. lat.
Comment 99: One commenter said that the restricted period in the
Southeast should be changed from March 31 to March 25 or earlier south
of the Cape Canaveral and north of Sebastian Inlet. The commenter also
said that if whales are not present in the area, it should be opened.
Response: NMFS has considered this comment. However, sightings data
from aerial surveys indicate that March 31 is an appropriate temporal
boundary for this area.
Comment 100: One commenter believed that extending the current
eastern boundary to the EEZ line for Florida fisheries should only
occur if NMFS has precise data about whale migratory patterns and
routes.
Response: This final rule implements a broad-based approach to the
ALWTRP regulations, and focuses on the times and areas where large
whales are likely to occur. NMFS believes that the boundaries of
management areas, as presented in this final rule, are appropriate for
large whale protection. Surveys are continually conducted by the NMFS
Southeast Fisheries Science Center and other NMFS partners. At this
time, NMFS cannot conclude with certainty that large whales are not
occurring in offshore waters out to the eastern edge of the EEZ; thus,
NMFS deems it appropriate to extend the boundary.
Comment 101: Several commenters suggested that the original names
for the Southeast management areas should be kept the same for clarity
because the new names are confusing.
Response: Based on public comment, NMFS is not including the
proposed name change in this final rule. However, based on the
commenters' view that the proposed name changes are confusing, NMFS is
implementing a modified name change more similar to the status quo. For
regulated waters west of 80[deg]00' W. long., NMFS is keeping the
``Southeast U.S. Restricted Area'' terminology and adding a ``N'' or
``S'' to denote North or South of 29[deg]00' N. NMFS is changing
``Southeast U.S. Observer Area'' to ``Southeast U.S. Monitoring Area''
due to the Vessel Monitoring System (VMS) being substituted for 100-
percent observer coverage in the Southeastern U.S. Atlantic shark
gillnet fishery.

Comments on SAM and DAM

Comment 102: Several commenters support the elimination of the SAM
program stating that the effectiveness and enforceability of SAM is
controversial.
Response: NMFS disagrees with the commenters' statements that the
SAM program is being eliminated because of controversiality regarding
its effectiveness and enforceability. This final rule implements an
expansion of the SAM program to bridge the gap between the publication
of the final rule and the effectiveness of the floating groundline
prohibition 12 months after publication of this final rule. NMFS has no
evidence that the gear modifications required under the SAM program
have resulted in an entanglement, serious injury, or mortality to large
whales. NMFS believes that the entanglements that occurred since the
2002 implementation of the SAM and DAM programs are the result of gear
interactions with large whales in areas outside of the SAM and DAM
programs. In fact, this final rule will implement many of the SAM gear
modifications on a year-round or seasonal basis throughout the Atlantic
coast. The elimination of the SAM program 12 months after publication
of the final rule is a result of the expansion of the final SAM gear
requirements rather than an elimination of the SAM program because it
is not effective or enforceable.
NMFS agrees that at-sea enforcement is important to the success of
the ALWTRP and has conducted enforcement activities. NMFS also relies
on its partnership with the U.S. Coast Guard (USCG) and state agencies
to monitor compliance with the ALWTRP. NMFS has existing penalty
schedules for violations of the MMPA and the ESA, and regulations
pursuant to those statutes. In addition, NMFS has entered into
agreements with many states to encourage and facilitate joint
enforcement of regulations. In recent years, NMFS, in collaboration
with the USCG and its state partners, has targeted small areas within
SAM areas to check

[[Page 57129]]

compliance with SAM gear modifications. Smaller inshore areas were
chosen based on the volume of gear fished in the area and the proximity
to right whales. NMFS will continue to work with its state partners and
the USCG to enforce the requirements of the ALWTRP.
Comment 103: Many commenters support maintaining and/or expanding
SAM. The commenters offered the following suggestions on SAM expansion:
(1) Expanding SAM with respect to other fishery closures, review of
recent large whale entanglements and other mortality and foraging data;
(2) expanding SAM requirements year-round; (3) combining an expanded
year-round SAM with Alternative 2 to provide the most conservation
benefit to large whales; and (4) adjusting expanded SAM boundaries
until the SAM program is eliminated and replaced with broad-based gear
modifications.
Response: This final rule expands SAM East and SAM West zones by
increasing the size of the SAM areas until 12 months after publication
of the final rule when the groundline requirements are expanded to
include all waters on a year-round or seasonal basis. Additionally, the
boundaries for the southeast area of SAM East would be modified. The
expanded SAM area would include the Great South Channel Critical
Habitat area; therefore, trap/pot and gillnet gear would be subject to
the SAM program inside critical habitat areas during time periods when
the requirements for fishing inside these areas are no more
conservative than the surrounding waters (i.e., when the protections of
critical habitat areas disappear).
Extending SAM to the west and south will provide greater protection
for endangered whales. Additional analyses of right whale sightings
prompted the spatial adjustment of SAM West to better reflect recent
data on right whale seasonal distributions (Merrick, 2005). Additional
broad-scale survey observations have also been evaluated by NMFS and
support the decision to expand the SAM area. See Comment 116.
Comment 104: Some commenters stated that an expanded SAM program is
inadequate. The commenters stated that it does nothing to protect large
whales in areas outside of SAM areas and its geographic scale is
smaller than that of whale movements. Furthermore, one commenter also
stated that an expanded SAM still does nothing to protect whales going
into Cape Cod Bay. The commenter mentioned it only takes effect for
animals that are leaving Cape Cod Bay and the new SAM area will only
include 2 out of the 17 DAM areas.
Response: Extending SAM to the west and south will provide greater
protection for endangered whales. Additional analyses of right whale
sightings prompted the spatial adjustment of SAM West to better reflect
recent data on right whale seasonal distributions (Merrick, 2005).
Additional broad-scale survey observations have also been evaluated by
NMFS and support the decision to expand the SAM area. See Comment 116.
NMFS agrees that relying solely on the expansion of the SAM
program, as proposed in Alternative 5, is inadequate to protect large
whales for the same reason stated by the commenter. Except for the
status quo Alternative 1, NMFS believes that Alternative 5 was the
least conservative, risk-averse approach to the protection of large
whales because it only required seasonal use of low-risk gear in the
SAM area off the New England Coast. Although the SAM area was proposed
to be expanded beyond what is currently required, the use of low-risk
gear would only be required in a relatively small area along the entire
Atlantic coast at a time when right whales are known to aggregate. NMFS
believes that Alternative 5 does not consider seasonal migration
patterns of large whales from Maine to Florida, resulting in lower risk
reduction compared to both the time and area requirements provided in
NMFS' approved alternative. Alternative 6 Final uses an expansion of
the SAM program to serve as a bridge to allow fishermen until 12 months
after publication of the final rule to convert their groundlines to
sinking line. Once fully converted, the gear modifications provided
under the revised SAM program will be expanded to include all New
England waters on a year-round basis and seasonally for the remainder
of the Atlantic coast.
Comment 105: One commenter disagrees with the 6-month delay in
effective date for SAM. The commenter states that fishermen using this
area should already have sinking groundline.
Response: NMFS disagrees with the commenter. This final rule will
expand the current SAM area, which will affect fishermen who had not
been required to comply with the SAM gear requirements in the past. The
6-month delay in the effective date for SAM gear requirements is to
allow fishermen in the new expanded areas to convert their gear.
Comment 106: One commenter opposes regulations in the area
surrounding Mount Desert Rock, which could be included in a future SAM
plan.
Response: This final rule will expand the SAM area, which will
require gear modifications during certain times of the year within
these areas. The expanded SAM requirement will be in effect until 12
months after publication of the final rule. The SAM area will not
affect the immediate Mount Desert Rock area. However, beginning 12
months after publication of the final rule, fishermen in the Mount
Desert Island area may be affected by the groundline requirements,
consistent with the SAM program, depending on whether the fishermen
fish seaward of the Maine state exemption line.
Comment 107: One commenter believes that the success of the revised
SAM program, exemption lines, or any other boundary-based management
approach rests on the assumption that NMFS sets the boundaries in the
most appropriate locations, considering the risks to whales and the
compliance costs to fishermen. The commenter suggested that NMFS work
with Maine DMR to periodically review and adjust the boundaries and
gear requirements of SAM as necessary.
Response: NMFS agrees with the commenter. Regarding the SAM
program, NMFS reviewed the NARW Sightings Database through early 2003,
supplemented by additional data on humpback and fin whale sightings. In
addition, NMFS used information, including that which was provided by
the State of Maine, to modify the Maine state exemption line (see
response to Comment 84). NMFS will continue to work with Maine, other
state partners, and ALWTRT members to develop appropriate measures for
the ALWTRP.
Comment 108: One commenter believes the boundaries for expanded SAM
areas do not reduce risk, stating that the SAM West area does not
protect late winter arrivals (December-February) and that the overlap
is too small. The commenter states that the reduced eastern portion of
SAM East combined with DAM elimination equals a net loss of right whale
protection. The commenter stated that two analyses of data to determine
boundaries for SAM were March to May and March to July, but that
January and February were not considered in the analyses. The commenter
stated that sightings data from 2004-2005 were ignored and NMFS should
have used them (see http://whale.wheelock.edu/whalenet-stuff/reportsRW_NE
).

Response: NMFS believes that the expanded SAM area implemented in
this final rule provides increased protection for right whales, as well
as

[[Page 57130]]

other large whales, in the Gulf of Maine. NMFS delineated the expanded
SAM area based upon the best data available at the time, which included
data from approximately 1960 through 2003 from the NARW database
distributed in December 2004 (Merrick 2005). This dataset included
sightings through fall 2003; the 2004 data had not been added and the
2005 data had not yet been collected. NMFS analyzed data from March
through July only, and did not analyze data from January and February
as there were very little winter sighting data available at that time.
Comment 109: NMFS received numerous comments supporting the
elimination of the DAM program.
Response: This final rule eliminates the DAM program six months
after publication of this final rule.
Comment 110: Two commenters supported elimination of the DAM
program but were concerned that it will reduce the incentive for
fishermen to change over their gear. Another commenter stated that the
unpredictability of the DAM program can lead to fishermen converting
their gear.
Response: NMFS believes that eliminating the DAM program will not
reduce the incentive for commercial fishermen to convert to the SAM or
DAM gear modifications. When the initial SAM and DAM programs were
implemented in 2002 and the DAM program was amended in 2003, NMFS
acknowledged that one of the benefits of these programs was that they
provided an incentive for commercial fishermen to convert their gear to
the more restrictive gear requirements on a year-round basis. NMFS
believes that many fishermen chose to convert on a year-round basis to
avoid interruptions in their fishing seasons because of gear
modifications imposed by the SAM and DAM programs. Furthermore, two
gear buyback programs have been completed, and a third buyback program
is currently underway. These buyback programs provide more incentive to
fishermen to convert their gear because they are compensated for
converting their gear prior to the implementation of the more
restrictive gear requirements.
Comment 111: Many commenters believe that the DAM program should
not be eliminated 6 months after publication of this final rule and
NMFS should keep the DAM program as part of the ALWTRP. The commenters
believe that if NMFS eliminates DAM, there is no contingency measure
for when whales are sighted in exempted areas. Specifically, some
commenters said there will be no method to protect right whale
aggregations in the Gulf of Maine (outside SAM) between now and 2008,
especially during the fall and winter.
Response: The DAM program is not designed for exempted areas. This
final rule expands the SAM area and allows the DAM program to be
eliminated six months after publication of this final rule. NMFS
conducted two different analyses to examine whether and where SAM would
provide additional protection to right whales. The results of these
analyses indicated that the area to be incorporated into the expanded
SAM would encompass many of the areas that previously have been
designated as DAM areas. Thus, NMFS believes that replacement of the
DAM program with an expanded SAM program will increase the protection
afforded to whales. In addition, NMFS believes that expanding the SAM
area will provide greater protection to right whales in the Northeast
during times of predictable spring aggregations. In particular, the new
overlap of SAM East and SAM West will provide a direct benefit to right
whales in this area during April, when the number of right whales in
the vicinity is expected to be high. In addition, six months after
publication of this final rule, additional gear modifications will take
effect in the areas outside of the expanded SAM area.
Comment 112: Some commenters supported eliminating the DAM program
as soon as sinking/neutrally buoyant groundline requirements take
effect (e.g., 2009 in some areas and 2010 in others). Several
commenters favored elimination of the DAM program, but support its
continuation until 2008 or 2009 with the implementation of gear
modifications (e.g., low profile groundline). Other commenters believed
the DAM program should be eliminated as soon as possible with the SAM
expansion.
Response: See response to Comment 111. As described in the DEIS,
NMFS considered but rejected the low profile groundline concept (see
also Response to Comment 158).
Comment 113: Two commenters encouraged NMFS to retain and expand
the DAM program into the Mid-Atlantic area even though they believe it
takes NMFS too long to implement; the commenters suggested speeding up
the process of filing the DAM rules in the Federal Register. Another
commenter said that DAMs should be implemented and rescinded more
quickly.
Response: NMFS explored options to expedite the implementation of
DAM areas. Once a DAM area is identified, NMFS must determine the
appropriate action by considering a variety of factors, including but
not limited to: the location of the DAM zone with respect to other
fishery closure areas, weather conditions as they relate to the safety
of human life at sea, the type and amount of gear already present in
the area, and a review of recent right whale entanglement and mortality
data. Despite NMFS best efforts to expedite the analysis of these
factors, it still takes some time to complete and review the analysis
prior to approval and implementation. Given the decision factors for
implementing restrictions within a DAM area and the time needed to
complete and review the analysis, NMFS could not find any ways to
expedite the process. NMFS believes that replacing the DAM program with
broad-based gear modifications designed to reduce entanglements and
serious injury should an entanglement occur will increase the
protection of right whales.
Comment 114: One commenter recommended expanding closed areas to
buffer DAM zones and to allow for unpredictable movements of individual
whales.
Response: The ALWTRP regulations favor broad-based gear
modifications over area closures. Movement and location of whales is
often difficult to predict with certainty, making gear modifications
more protective than closures of limited areas. Furthermore, closures
may produce undesirable consequences such as concentrations of gear
just outside of closed areas, which could increase entanglement risks
to large whales.
Comment 115: Several commenters encouraged NMFS to increase
enforcement of DAMs and one commenter supported removing all gear from
DAM zones to ease enforcement. If this does not occur, the commenter
encouraged NMFS to develop a more effective enforcement strategy.
Response: The decision to eliminate the DAM program is not based on
enforcement issues. NMFS has developed and implements a successful
enforcement strategy for the DAM program through its agreements with
its state partners and the vessel and aerial support provided by the
USCG.
Comment 116: Some commenters suggested the agency should include
all previous DAM zones into an expanded SAM, up to and including
trigger areas defined by NMFS in 2005. Further, these commenters
presume that NMFS believes expanded SAM would cover high use areas most
likely to pose risk outside of critical habitat areas, such as Jeffreys
Ledge, Stellwagen Bank, and the waters east of Chatham, MA. One
commenter requested that NMFS revisit

[[Page 57131]]

the expanded SAM analysis for Alternative 2, given that several DAM
zones occurred outside the expanded SAM area from 2003-2005.
Response: NMFS considered many DAM areas when expanding SAM
boundaries for this final rule. If whales were observed in the same
area during the same season in three or more years, then this area was
considered to have predictable concentrations of whales, and was
incorporated into the final SAM area. However, many DAMs only occurred
once in an area and were thus considered too unpredictable to be
considered as Seasonal Management zones (Merrick 2005). Beginning 12
months after publication of this final rule, the expanded SAM zones
will be eliminated as the final gear modifications required in the SAM
zones will be expanded to include all areas, both spatially and
temporarily, throughout the range of right whales and other large whale
species.

Comments on Effective Date

Comment 117: Many commenters urged NMFS to implement gear
modifications sooner than 2008. The commenters believed NMFS should
implement ALWTRP modifications sooner because: (1) The proposed
effective date does not comply with the MMPA; (2) the proposed
effective date does not comply with the intent of ESA; and (3) PBR is
being exceeded. Several commenters believed the gear modifications
should occur sooner than 2008 in certain large whale habitats, such as
Great South Channel, Stellwagen Bank, and Jeffreys Ledge, especially in
light of the Massachusetts buyback program that assisted fishermen in
converting to sinking and/or neutrally buoyant groundline.
Response: The ESA requires agency actions to avoid jeopardy, and
NMFS believes the effective dates for this action are sufficient to
avoid jeopardy. The action and effective dates are also in compliance
with the goals of the MMPA, including reducing serious injury and
mortality of large whales to below PBR.
In 2004, the International Fund for Animal Welfare, Massachusetts
Division of Marine Fisheries (MADMF), and the Massachusetts
Lobstermen's Association partnered to implement a lobster gear buyback
program. More than $650,000 was disbursed to Massachusetts lobster
fishermen who turned in floating groundline; these fishermen replaced
the floating line with non-buoyant line consistent with the measures
contained in this final rule. Therefore, NMFS believes a portion of the
industry is voluntarily implementing the measures in this final rule
before they are required to do so through the ALWTRP. In addition,
NMFS, in collaboration with National Fish and Wildlife Foundation
(NFWF), administered a similar buyback program in the Mid-Atlantic; see
response to Comment 110. Finally, the Gulf of Maine Lobster Foundation
received a grant from NMFS for the development and implementation of a
floating groundline buyback and recycling program, in which floating
groundline is exchanged for sinking or neutrally buoyant groundline.
The first phase of this program took place in May 2007 in southern
Maine and participants included Maine state lobster fishermen in Zone G
as well as federal lobster permit holders in Maine.
Comment 118: Many commenters stated that the time period for
implementing the final rule is too short. The commenters believe NMFS
should extend the time to implement the ALWTRP because: (1) There is a
limited availability of line; (2) price gouging may occur; (3) gear
manufacturers are hesitant to produce line based on their awareness of
current line testing; (4) there is a lack of awareness of the actual
[line] breaking strength and schedule of degradation; (5) there is no
immediate process for changing line; (6) two line testing experiments
are currently underway to determine the usable life of sinking
groundline and the practical commercial application of new materials;
(7) it will give offshore lobstermen more time and allow NMFS to
consider the possibility of low profile groundline; (8) it will allow
for more research and financial planning by industry; (9) as is, it
would cause a large capital expenditure over a 2-year period; (10) it
will give the Federal Government and environmental groups more time
needed to secure funding to minimize the financial burden; and (11) it
will cost approximately $100,000 for an offshore lobsterman to switch
over his gear. Many commenters suggested an implementation time of 4
years from the publication date of the final rule.
Response: Typically, NMFS provides 30 or 60 days for fishermen to
comply with gear modifications such as mesh size restrictions and other
requirements. However, as evident by overwhelming public comment, given
the magnitude of the time and resources needed by fishermen to change
their gear to sinking and/or neutrally buoyant groundline requirement,
NMFS believes giving fishermen 12 months from the publication of the
final rule to comply is warranted. See the ``Comments on Low Profile''
portion of the this section with respect to low profile issues. The
costs and impacts analyzed in Chapters 6 and 7 of the EIS explicitly
consider the incremental effects of groundline replacement beyond
routine levels. The cost analysis presented in the EIS is based on
prevailing market prices for all factor inputs, including neutrally
buoyant and/or sinking groundline. One commenter points out that
groundline suppliers may take advantage of a mandate to use neutrally
buoyant and/or sinking groundline by resorting to price gouging, i.e.,
charging artificially high prices in order to realize large profits.
The government is aware of the potential for such behavior and, if it
occurs, may take action to stop it. NMFS also believes, however, that
the schedule for implementing the modifications in the final rule will
reduce the potential for price gouging. The requirement to use
neutrally buoyant and/or sinking groundline does not take effect until
12 months after publication of the final rule. NMFS believes spreading
initial demand for neutrally buoyant and/or sinking line over this
period of time will likely relieve market pressures that might
otherwise lead to price gouging. NMFS further believes the 12 month
phase-in period would give suppliers of neutrally buoyant and/or
sinking line the opportunity to increase production to meet the
increased demand; this increase in production would likely mitigate
against price gouging. Thus, NMFS believes rope will continue to be
available for fishermen to comply with the effective date for the
ALWTRP sinking and/or neutrally buoyant groundline requirements.
Although the model vessels analyzed in Chapter 6 of the EIS are
generalized and may not reflect costs for all individual vessels, NMFS
does not believe incremental costs (i.e., costs beyond routine gear
replacement costs) will typically be as high as $100,000. The analysis
suggests that initial investment costs are more on the order of $39,000
for large offshore vessels. Furthermore, while costs may be high for
some large offshore lobster vessels, the compliance costs are generally
commensurate with revenues for these large operations, i.e., costs as a
percent of revenue are not prohibitive. Chapter 7 of the EIS identifies
vessel segments that may be heavily impacted by the requirements and
suggests that under Alternative 6 Final (Preferred), a limited number
of small vessels are most at risk. Although costs are high for some
vessels, NMFS made modifications to the final rule, based on public
comment, to decrease costs where possible while still meeting its goals
under the MMPA and ESA (see Changes from the

[[Page 57132]]

Proposed Rule section of the preamble). While these vessels may still
realize high costs relative to revenues, fishermen have some options to
try to mitigate the costs. For example, the impacts of converting to
sinking and/or neutrally buoyant groundline may be defrayed, in part,
by current and future groundline buyback programs operated by NMFS and
other partners. In addition, although the requirements under
Alternative 6 Final (Preferred) may impose significant costs within the
first year after publication of the final rule (to convert all
groundline to sinking and/or neutrally buoyant groundline), fishermen
may be able to distribute the cost of the new gear over its useful life
by seeking a loan. After the first year, ongoing costs would be
significantly lower as fishermen would only need to replace worn-out
and lost gear.
Comment 119: One commenter suggested NMFS require switching to
sinking/neutrally buoyant groundline for trap/pot gear in 2009.
Response: The sinking and/or neutrally buoyant groundline
requirement will be effective in expanded SAM areas six months after
publication of this final rule, and in all other areas effective 12
months after publication.
Comment 120: Some commenters stated that complying with the
proposed weak link regulations by 2008 would be problematic. One
commenter stated that splicing weak links into existing gear will be
time-consuming, costly, change how gillnets work, and lower the catch.
The commenters suggested requiring weak links by 2009 or 2010, as this
would help reduce compliance costs and allow more time for gear
modification.
Response: NMFS agrees that meeting the increase in the number of
weak links per net panel from one to five or more, depending on the
length of the net panel, will take time for fishermen. However, based
on public comments received, this final rule gives gillnet fishermen 2
options to install the additional net panel weak links. These two net
panel weak link options will be effective six months after publication
of the final rule. However, thirty days after publication of the final
rule, these net panel weak link options will be allowed in current SAM
areas and implemented DAM zones when a gear modification option is
selected.
Comment 121: One commenter states that NMFS seems to be balancing
interests of different groups that advocate for accelerated phase-in of
gear modifications with those that favor a longer phase-in period. The
commenter stated that NMFS sees species survival equal to the interests
of the fishing industry, and that this approach directly counters NMFS'
obligation to protect whales and take measures to recover species under
the MMPA and ESA.
Response: NMFS disagrees and believes it is implementing the
appropriate measures to reduce risk associated with groundlines,
amongst other risk reduction measures, as quickly as is feasible and
consistent with the requirements of the MMPA and ESA.

Comments on Groundline

Comment 122: One commenter questioned whether there is overwhelming
evidence that groundline has caused entanglements.
Response: There is evidence that groundline has been involved in
whale entanglements. Both buoy lines and groundlines have been
identified as sources of entanglements.
Comment 123: Many commenters supported the use of sinking
groundline. One commenter stated that it will substantially reduce
entanglement risks because it will reduce the amount of line in the
water column. One commenter stated there are few areas in Massachusetts
where large whales have not been sighted, and also stated that sinking
groundline may cause fewer gear conflicts. However, another commenter
supported the use of sinking groundline only if it would help the
whales, and is not in favor of it in areas where there are going to be
gear losses and it would not save any whales.
Response: NMFS appreciates the support with respect to sinking and/
or neutrally buoyant groundline and agrees that the end result is less
line in the water column, and therefore a reduced risk of entanglement.
NMFS agrees that fewer gear conflicts may be a byproduct of sinking
and/or neutrally buoyant groundline. As discussed in the FEIS, NMFS
believes the use of sinking groundline will reduce the risk of
entanglement and recognizes it may increase gear losses.
Comment 124: One commenter cautions that juvenile humpback whales
and right whales have emerged with mud on their heads, which indicates
feeding on the bottom. Therefore, risks to these whales may be
increased when using sinking groundline. The commenter states that it
will be critical to monitor gear modifications, specifically regarding
how and when effectiveness will be measured.
Response: Although there are anecdotal reports of whales going to
the bottom or having scratches on their snouts and stomachs, presumably
from traveling to the bottom, there is little published data that
supports these reports; whale behavior (i.e., foraging) at various
depths and bottom types is also largely unknown at this time. NMFS
recognizes that whales may spend time at or near the bottom in some
habitats, as described by the commenter. The sinking groundline concept
is a measure to remove the maximum amount of line from the water column
in an effort to reduce the overall risk of entanglement. See also
Comment 267.
Comment 125: Many commenters believed that rocky ledges are
unlikely habitat for large whales and questioned whether NMFS knew if
large whales are bottom feeders around rocky bottoms. These commenters
also believed low profile line should not be prohibited in such areas
(i.e., inshore rocky habitat).
Response: Currently, available data and scientific literature do
not suggest that whales treat rocky bottom areas any differently than
locations with other bottom types (e.g., mud). NMFS data show whales
aggregate over the northern edges of George's Bank, which is dominated
by rocky ledges. NMFS acknowledges that a better understanding is
needed on prey distribution, and how whales utilize the water column,
including the foraging and diving behavior of whales.
Comment 126: One commenter does not believe that sinking/neutrally
buoyant groundline would pose a risk to bottom-feeding whales.
Response: NMFS recognizes that any line in the ocean poses some
risk of entanglement and believes that sinking and/or neutrally buoyant
line reduces that risk substantially.
Comment 127: One commenter supports sinking groundline for gillnet
gear.
Response: NMFS appreciates the support for sinking groundline in
gillnet gear.
Comment 128: Many commenters opposed sinking/neutrally buoyant
groundline. The commenters objected to this requirement because they
believed the use of sinking/neutrally buoyant groundline would cause
the following: (1) The potential for an increase in hangdowns, chafe,
snag and/or burring that would then increase gear loss/ghost gear; (2)
safety issues and potential injury to fishermen; (3) a significant
increase of vertical lines in the water as fishermen who normally fish
pairs, triples, or trawls would probably move to fishing singles (i.e.,
if they had to use sinking and/or neutrally buoyant line); (4) the line
to twist around the traps; and (5) the line to sand up during storms
and making it hard to grapple to get it back. Furthermore, commenters
cited other reasoning for not using

[[Page 57133]]

sinking/neutrally buoyant groundline, including: (1) The threat to
large whales is not reduced by changing line type (Johnson et al.,
2005); (2) replacement costs for traps (traps cost $55 to $70) and line
would be expensive; (3) the rope manufacturers could not produce enough
line to outfit the offshore fleet by 2008; and (4) switching away from
floating line will force everyone to fish in the gravel and mud
gullies, instead of the hard bottom, and will increase congestion.
Response: The fishing industry from Maine to Florida utilized
sinking line successfully in a variety of applications prior to the
advent of floating line, and some percentage of fishermen today do not
use floating groundline for a variety of reasons. In implementing a
prohibition on floating groundline, NMFS acknowledges fishermen may
experience operational difficulties in adjusting to sinking and/or
neutrally buoyant groundline in different habitats. However, NMFS
believes that industry can develop fishing practices to address any
difficulties in transitioning from floating groundline to sinking and/
or neutrally buoyant groundline, as evident at the 2005 NMFS Low
Profile Groundline Workshops by one fishermen transitioning in rocky
habitat areas. NMFS further acknowledges that the potential for
hangdowns and gear loss/ghost gear may increase. The economic cost
analysis in the FEIS explicitly takes into account potential changes in
gear loss rates under the various regulatory alternatives. The economic
analysis also explicitly takes into account the need to replace sinking
and/or neutrally buoyant line more frequently than floating line.
NMFS believes that the gear modifications required under the ALWTRP
do not present any significant increased dangers above those of normal
fishing practices. However, NMFS will continue to monitor this
situation through discussions with industry and the ALWTRT.
NMFS recognizes there may be an increase of vertical lines due to
the number of traps per trawl being reduced; however, the total amount
of line in the water column will be reduced as a result of the
neutrally buoyant line measures. There are currently provisions in the
regulations that prohibit single traps in certain times and areas to
reduce the overall number of vertical lines. NMFS believes the
reduction of line in the water column based on the use of sinking and/
or neutrally buoyant groundline will provide a substantial reduction in
entanglement risk. NMFS also recognizes the issue of vertical lines as
an entanglement risk and will be addressing that subject with the
ALWTRT. NMFS recognizes the potential for groundline to twist around
traps and that this may contribute to hangdowns; however, the risk
reduction associated with the use of sinking and/or neutrally buoyant
groundline warrants this gear configuration. NMFS recognizes that the
longevity of sinking and/or neutrally buoyant groundline has the
potential for being less than floating groundline. NMFS believes that
the rope manufacturing industry is aware of the issue and will continue
to work on enhanced lines that address this concern.
NMFS believes that using sinking and/or neutrally buoyant
groundline, as opposed to floating groundline, will reduce risk of
entanglement. The is also supported by a study by Johnson et al.
(2005).
NMFS recognizes there are costs to the fishing industry to comply
with these gear provisions. Groundline replacement costs represent a
large share of the overall compliance costs for most affected vessels.
The social impact analysis included in the FEIS examines the economic
burden posed by the alternatives and the likely effect on the economic
viability of fishing operations. The analysis identifies vessel
segments that may be heavily impacted by the requirements and suggests
that under Alternative 6 Final (Preferred) a limited number of small
vessels are most at risk when comparing annual compliance costs to
average per-vessel revenues. While some of these small vessels face
costs that could potentially drive them out of business, current and
future groundline buyback programs may help defray the compliance costs
for many vessels. See response to Comment 57 for additional information
related to defraying costs.
NMFS and its state partners have worked with rope manufacturers to
keep that industry informed of the potential for a large increase in
demand for sinking and/or neutrally buoyant line. In addition, the
requirements are spread over a one year period.
NMFS recognizes that the change from floating groundline to sinking
or neutrally buoyant groundline may result in changes in fishing
practices and areas. The risk reduction warrants these changes in
fishing practices and gear configuration.
Comment 129: One commenter stated that the $120,000 cost that
fishermen are expecting/predicting does not take into account
petroleum, the rising cost of everything, or the fact that sinking rope
is heavier than the floating rope that is being used. The Commenter
states that fishermen will have to replace their rope more and more,
which is double or triple the cost of what they are currently spending.
This will result in price gouging.
Response: While the model vessels employed in the economic impact
analysis presented in the EIS are generalized and may not reflect costs
for all individual vessels, NMFS does not believe incremental costs
(i.e., costs beyond routine gear replacement costs) will typically be
as high as $120,000. The analysis suggests that initial investment
costs are likely to be more on the order of $39,000 for large offshore
vessels. While it is true that input costs--particularly fuel costs--
are rising, the cost analysis presented in the FEIS has been updated to
reflect recent changes in costs. The price of sinking and/or neutrally
buoyant line employed in the analysis is greater than the price it
specifies for floating line, but the difference is less than a factor
of two (not the two to three factor noted by the commenter). In
addition, the cost analysis incorporates assumptions that recognize the
shorter useful life of sinking and/or neutrally buoyant groundline.
Regarding price gouging, the government is aware of the potential for
such behavior and, if it occurs, may take action to stop it. NMFS also
believes that the schedule for implementing the modifications in this
final rule will reduce the potential for price gouging. The requirement
to use sinking and/or neutrally buoyant groundline does not take effect
until 12 months after publication of the final rule. NMFS believes
spreading initial demand for sinking and/or neutrally buoyant
groundline over this period of time will likely relieve market
pressures that might otherwise lead to price gouging. NMFS further
believes the 12 month phase-in period would give suppliers of sinking
and/or neutrally buoyant groundline time to increase production to meet
the increase in demand; this increase in production would likely
mitigate against price gouging. See also Comment 118.
Comment 130: Several commenters questioned the quality and
durability of sinking groundline, stating that fishermen cannot find
anything that lasts more than 2 years, whereas 15-year old float rope
is as good as new. Other commenters believed that more research should
be conducted to make sinking rope more durable before any regulations
require the use of sinking line. They stated that sinking line frays
more easily in the normal course of fishing and consequently wears out
faster than polyester and polyurethane floating rope and it is more
expensive.

[[Page 57134]]

Response: Sinking groundline has been utilized in the fishing
industry for many years and new line blends have been and continue to
be developed to address the issues raised in this comment. NMFS has
funded research with the states, manufacturers, and industry to address
this issue. Based on public comment received, industry and state
fishery management representatives noted that in some unique areas,
particularly off the coast of Maine, there may be a need to allow
groundline the ability to float over rocky bottom types. See response
to Comment 158 on issues related to ``low profile'' groundline.
Comment 131: Commenters stated that, in New Jersey, groundlines are
usually full of recreational fishing hooks. The commenters believe
sinking rope is not durable enough to handle pulling hooks out often,
so they will have to replace sinking groundline more often than
floating groundline.
Response: This issue appears to be unique to New Jersey and may
require that the affected fisherman work with line manufacturers to
develop an enhanced sinking groundline to address this issue. NMFS
believes that sinking and/or neutrally buoyant groundline may actually
reduce the incidence of recreational hook entanglement in groundlines
as the groundline will be out of the water column, therefore less
likely to encounter the recreational gear, as recreational hooks travel
up and down through the water column.
Comment 132: Several commenters believe that fishing with sinking
and/or neutrally buoyant line will cause ``hangdowns'' to occur every
few minutes, which will increase abrasion and cause the line to fill
with sand. Furthermore, hangdowns are considered a safety hazard. For
example, a USCG Safety Alert issued on May 28, 1998, for small vessel
stability warned that ``gear hung down on the seabed'' is a dangerous
condition to fishermen; even larger vessels up to 50 ft (15.2 m) will
be at severe safety risk due to rope getting stuck under rocks/ledges.
Response: See Response to Comment 128.
Comment 133: Several commenters stated that there are many areas
where sinking and/or neutrally buoyant groundline cannot be used;
instead they should be allowed to use float rope in those areas. Many
commenters referred to hard/rocky/tidal/ragged bottoms and/or habitats.
Commenters suggested that sinking and or neutrally buoyant line is not
feasible in these areas because: (1) There would be a large amount of
gear loss if required to use sinking line; (2) there would be chafing;
(3) there would be an increase in hangdowns; and (4) it is impossible
to fish the hard bottom in Maine using pairs, triples, or trawls
without the use of floating groundline. Other areas where commenters
stated sinking and/or neutrally buoyant line could not be used
included: (1) Downeast Maine (one commenter made a specific reference
to bottom topography changes east of Casco Bay); (2) the North Carolina
black sea bass fishery; (3) live rock or coral areas; (4) wrecks; (5)
reefs; and (6) bottoms that include sand and shell (clam and oyster),
as it would could cause chafing.
Response: See Response to Comment 128 regarding hangdowns, chafing,
unique bottom types and bottom compositions. See below for habitat and
coral area discussion.
NMFS acknowledges there are unique issues related to habitat
impacts, live rock and coral areas and, although sinking and/or
neutrally buoyant groundlines could interact with the seafloor and
adversely impact benthic marine habitats, these impacts are not
expected to be more than minimal when compared to the use of floating
groundline. The FEIS provides a description of the affected
environment, including the identification of areas designated as
Essential Fish Habitat (EFH) and Habitat Areas of Particular Concern
(HAPCs) as well as an analysis of the impacts of fishing gear on this
environment. Bottom-tending static gear (e.g., traps/pots) has been
found to have low to moderate effects on benthic habitats when compared
to the more severe physical and biological impacts caused by bottom-
tending mobile gear (e.g., bottom trawls and dredges). Furthermore, the
amount of bottom area that would be disturbed by sinking and/or
neutrally buoyant groundline, and the frequency of disturbance in the
exact same area that would result from repeated contact with sinking
and/or neutrally buoyant groundline, would be very small, allowing
enough time for recovery of benthic communities that would potentially
be affected. Thus, NMFS has concluded that the final preferred
alternative is not expected to have more than a minimal and temporary
adverse impact on benthic EFH.
NMFS evaluates and regulates the adverse impacts of fishing on
bottom habitats in other management actions. Currently, several areas
in the Northeast (e.g., on Georges Bank, in southern New England, and
in the Gulf of Maine) are closed to the use of mobile, bottom-tending
fishing gear, such as bottom trawls and dredges, and two offshore
canyons (e.g., Lydonia and Oceanographer) are closed to the use of
bottom trawls and gillnets by vessels using monkfish days-at-sea
permits. The monkfish closures have the added benefit of protecting
deep-water corals and other structure-forming organisms in these two
canyons. The New England Fishery Management Council (NEFMC) published a
Notice of Intent on February 24, 2004 (69 FR 8367), to prepare a
programmatic EIS and Omnibus EFH Amendment that will apply to all
Council-managed FMPs. This amendment has been divided into two phases
(70 FR 53636, September 9, 2005). In phase 1, the amendment will revise
the existing EFH and HAPC designations for all 27 Council-managed
species. In phase 2, the NEFMC is expected to identify and implement
new measures to minimize the adverse impacts of fishing on EFH, which
would replace or supplement the existing regulations. Final action on
the Omnibus Amendment is not expected until late 2008 or early 2009.
EFH protection measures are also being considered by the Mid-Atlantic
Fishery Management Council in individual FMPs that will be promulgated
during the next several years. The Atlantic States Marine Fisheries
Commission (ASFMC), composed of representatives from the Atlantic
coastal states and the Federal Government, develops fishery
conservation and management strategies for certain coastal species,
including American lobster, and coordinates the efforts of the states
and the Federal Government toward concerted sustainable ends. NMFS is
working cooperatively with the ASFMC to evaluate the EFH impacts of the
lobster trap fishery. In the Southeast, with regard to preventing,
mitigating, and minimizing the adverse effects of fishing on EFH, the
Gulf of Mexico and Caribbean Fishery Management Councils (FMC) in 2004
considered prohibiting sinking groundlines between traps/pots traps to
prevent sweeping of the bottom during trap/pot retrieval and recognized
the effect of probable increased interactions of buoy gear with marine
mammals by requiring individually buoyed traps/pots. In 1991, the South
Atlantic FMC prohibited fish traps throughout its jurisdiction with the
exception of black sea bass pots north of Cape Canaveral, Florida,
because sea bass pots are small, fished primarily in shallow waters
less than 20 fathoms (36.9 m or 120 ft), and there was a lack of
evidence of environmental harm. This Council is currently conducting a
review of its EFH designations and provisions to protect EFH. Each of
the southeast Councils identified practicable measures to

[[Page 57135]]

minimize adverse effects of fishing by using a variety of factors when
evaluating the impacts of fishing gears. These included the duration
and frequency of the impact, the intensity and spatial extent of the
impact, and the sensitivity of the habitat and habitat functions. When
considering these factors and that the proposed action will not change
fishing practices, NMFS believes that sinking and/or neutrally buoyant
groundlines would result in impacts on EFH that would be no more than
minimal and temporary in nature.
Additionally, in response to a petition by Oceana to immediately
promulgate a rule to protect deep-sea coral and sponge (DSCS) habitat
from the impacts of mobile bottom-tending fishing gear, NMFS outlined
an approach to address these issues (70 FR 39700, July 11, 2005).
Specifically, NMFS adopted an approach to address DSCS issues that will
be formalized in a National DSCS Conservation and Management Strategy.
NMFS will work actively with each Regional FMC and the ASMFC to
evaluate the issue, and take action where appropriate, to protect DSCS,
which may include future rulemaking to protect DSCS in specific
locations based on analyses for specific fisheries. Additionally, NMFS
plans to develop a strategy to address research, conservation, and
management issues regarding DSCS habitat, which eventually may result
in rulemaking for some fisheries.
Comment 134: Many commenters believe that sinking line should not
be required more than 100 miles (185.2 km) offshore or in deep canyons.
Reasons include hangdowns and rope getting caught on rocky areas which
produce major safety issues.
Response: See response to Comment 128 regarding hangdowns and
safety concerns. Current sightings data show whales occurring in waters
greater than 100 miles (185.2 km) offshore. Data also suggest that
right whales, humpback whales, and fin whales all occur at the edge of
canyons. For example, northeast sightings data places large whales at
the edge of the seafloor drop-off for George's Bank in the Gulf of
Maine. See also Comment 125. To ensure adequate protection for large
whales in these areas, NMFS believes groundline regulations put forth
in this final rule are appropriate.
Comment 135: Several commenters emphasized their belief that low-
cost alternatives to sinking line were needed before there are any
requirements for groundlines to be composed exclusively of sinking
line. They urged NMFS to conduct more research on low-cost
alternatives. Several commenters requested that NMFS include a low cost
alternative in the FEIS based on research by the NMFS Gear Team. The
commenters stated that, if this is not included, NMFS should indicate
in the FEIS the agency's commitment to developing a low-cost
alternative prior to phasing in gear modifications. The commenters
cited page 3-41 of the DEIS, Alternatives Considered but Rejected, and
stressed the importance of a low-cost alternative to reducing
groundline profile for New Jersey fishermen; commenters believe the
data are already available to support/implement low profile line.
Response: NMFS has sought comments and considered many proposals
from the ALWTRT and public, and no suitable, low cost alternative to
sinking and/or neutrally buoyant line has been identified. In the
absence of an alternative to sinking and/or neutrally buoyant
groundline that, amongst other factors, is low cost to industry,
enforceable and also reduces serious injury and mortality to large
whales, NMFS is implementing a sinking and/or neutrally buoyant
groundline requirement in this final rule. Research continues on
alternative approaches to those contained in this final rule. NMFS
plans on further discussing the concept of low profile line with the
ALWTRT at the next meeting.
Comment 136: Several commenters requested that, if a sinking/
neutrally buoyant groundline is implemented, NMFS should: (1) Allow
2,000-lb (907.2-kg) weak links in offshore areas; (2) exempt the top
line of gillnets; (3) exempt the bottom third of up and down lines; (4)
establish a 1.03 specific gravity standard; (5) extend the phase-in
period so fishermen can amortize rope replacement costs; (6) conduct
research to improve sinking line durability; (7) explore whether rope
manufacturers can produce sinking line that meets federal requirements;
and (8) consider the safety issues of working with sinking line.
Response: NMFS does not recognize a link between weak link breaking
strength and sinking or neutrally buoyant groundline. Top lines of
gillnets are not required to be composed of sinking or neutrally
buoyant line. Composition of up and down line or buoy lines are
currently regulated in 3 areas, Cape Cod Bay, SAM West, and SAM East,
during seasonal periods. During these seasonal periods buoy line
composition does allow the bottom third to be composed of floating
line. Buoy line composition, floating versus sinking or neutrally
buoyant, is not regulated in all other ALWTRP areas. NMFS has included
a definition of neutrally buoyant or sinking line specifying a specific
gravity in this final rule. The final rule does require sinking and/or
neutrally buoyant groundline 12 months after publication of the final
rule. NMFS, rope manufacturers, and the fishing industry continue to
work on the durability issue. However, NMFS believes the phase-in
period implemented in this final rule is still warranted to reduce the
serious injury and mortality of large whales due to entanglement in
commercial fisheries in order to meet NMFS' mandates under the MMPA and
ESA. NMFS has determined that manufacturers have produced line that
meets the standard required by this final rule. Additionally, NMFS has
considered safety issues of working with sinking line and will continue
to consider safety with the ALWTRT.
Comment 137: Many commenters requested that NMFS develop a rope
buy-back program. The commenters support the program for the following
reasons: (1) It would ease the burden of switching to sinking
groundline (e.g., help absorb financial burdens and defray the higher
cost of sinking rope); (2) it would encourage fishermen to change over
to sinking/neutrally buoyant groundline earlier than the proposed
implementation date; and (3) a line recycling/buyback program is the
only acceptable solution for taking care of miles of useless poly line.
Response: NMFS agrees that buyback programs are a viable option for
the reasons stated and several programs have been executed in states
along the eastern seaboard. See responses to Comments 117, 138, 139,
and 140 regarding Massachusetts, Mid-Atlantic, and Maine gear buyback
program activities.
Comment 138: One commenter mentioned the gear buyback pilot
program, in which 300 Massachusetts inshore lobster fishermen
participated and 300,000 lbs (136,078 kg) of floating groundline were
collected. The commenter hopes this pilot program will serve as a model
for other states as gear modification requirements take effect.
Response: NMFS agrees and, in collaboration with NFWF, administered
a similar buyback program in the Mid-Atlantic during January 2006. This
exchange program is also an effort to remove floating groundlines
between traps/pots. State and/or federally licensed/permitted
commercial trap/pot fishermen in New Jersey, Maryland, Delaware,
Virginia, and North Carolina were eligible to participate. In addition,
the State of Maine is initiating a

[[Page 57136]]

buyback program in 2007 (see responses to Comments 117, 137, 139, and
140).
Comment 139: One commenter believes that fishermen will not be able
to bear the full economic burden of the proposed regulations. One
commenter states that a Congressional budget earmark for multi-year
poly buyback and rope exchange was requested for Maine to coincide with
proposed low profile implementation dates (2007-2009).
Response: The social impact analysis included in the FEIS examines
the economic burden posed by the alternatives and the likely effect on
the economic viability of fishing operations. The analysis identifies
vessel segments that may be heavily impacted by the requirements and
suggests that under Alternative 6 Final (Preferred), a limited number
of small vessels are most at risk when comparing annual compliance
costs to average per-vessel revenues. Current and future groundline
buyback programs may help defray the compliance costs for many vessels.
Comment 140: One commenter stated that The Ocean Conservancy is
working closely with the State of Maine, Maine Lobstermen's Association
(MLA), and Southern Maine Lobstermen's Association to secure funding to
assist fishermen with line replacement.
Response: NMFS confirms that several entities in Maine have been
working to establish a line replacement program. The Gulf of Maine
Lobster Foundation has been identified to develop and conduct a line
replacement program in 2006 and 2007. The Gulf of Maine Lobster
Foundation is currently administering the program with 1.9 million
dollars they received via a Federal grant.
Comment 141: Many commenters asked NMFS to consider other
regulations such as what the NEFMC is considering for protecting deep
sea coral in canyons. One commenter stated that sinking groundline will
get caught on deep sea coral and suggested that fishers are asked to
use floating groundline only in canyons. Others commenters stated that
chafing of rope would cause gear loss and the bottom would get torn up
by the rope.
Response: NMFS acknowledges the impacts of sinking groundline, but
NMFS believes that in many areas the industry can develop fishing
practices to address any difficulties in transitioning from floating to
sinking and/or neutrally buoyant groundline. NMFS will further discuss
low-profile groundline for other areas at the next ALWTRT meeting.
Also, see response to Comment 128.
Comment 142: One commenter would like to see a clause that, for
pots less than 15 or 20 feet (4.6 or 6.1 m) apart, that sinking line is
not required.
Response: NMFS recognizes that this configuration, 15-20 feet (4.6-
6.1 m) groundline, seeks to minimize the amount of groundline, which is
a positive step toward the overall reduction of line in the water.
However, NMFS is not able to exempt this configuration. NMFS will be
discussing the concept of low profile groundline further with the
ALWTRT at the next meeting, and will be providing the ALWTRT with
comments such as this to consider.
Comment 143: One commenter stated that, in the waters where he
fishes, one must use float rope because, while setting the gear in 50
fathoms (91.4 m or 300 ft), by the time it hits bottom, it is at 70 or
80 fathoms (128.0 m or 420 ft to 146.3 m or 480 ft) because it will be
carried by the currents a half or \3/4\ of a mile (0.8 or 1.2 km)
before it hits bottom.
Response: NMFS recognizes there are many unique physical
environments that fishermen contend with while fishing. The issue in
this case appears to be the delay in time from the last trap being
deployed from the vessel, the trawl hitting bottom, and the drift of
the trawl during that time. Sinking and/or neutrally buoyant groundline
may actually be an asset in this unique case as the nature of this type
of line (i.e., higher specific gravity compared to floating line) may
reduce the time from the deployment of the last trap from the vessel
until the trawl hits the ocean bottom.
Comment 144: One commenter believes that in Grand Manan Channel,
where he fishes, it is impossible to continue business using sinking
rope. His reasons for this include the rocky habitat and the tide in
the area.
Response: NMFS has worked with industry in the Grand Manan Channel
in the process of developing sinking and/or neutrally buoyant
groundlines. NMFS has had discussions with some fishermen regarding the
successful use of sinking and/or neutrally buoyant groundline in this
area.
Comment 145: Two commenters requested an exemption from sinking
groundline requirements in waters deeper than 100 fathoms (182.9 m or
600 ft) along/in rocky canyons due to their jagged topography. Use of
sinking groundline in these areas would cause hangdowns and rope
getting caught, which is a big safety issue.
Response: NMFS is not able to exempt these areas at this time. See
response to Comment 125 in reference to whale habitat and rocky
bottoms. See response to Comment 128 in reference to hangdowns and
safety issues.
Comment 146: One commenter supports the 280-fathom (512.1-m or
1,680-ft) groundline exemption as long as gear is marked and NMFS has a
formal mechanism to reconsider this exemption if data show whales
feeding at these depths or become entangled in gear fished at these
depths.
Response: NMFS appreciates the support of the 280-fathom (512.1-m
or 1,680-ft) groundline exemption. There is no provision for groundline
marking in the ALWTRP, including in waters in excess of 280 fathoms
(512.1 m or 1,680 ft). NMFS will continue to discuss gear marking to
monitor strategies with the ALWTRT to see whether additional gear
marking strategies are needed and should be implemented in the future.
Comment 147: One commenter would like to see use of sinking line
separated by lobster management areas. The commenter said that in LMA
2, 90-percent of fishermen fish on rocks and cannot use sink line due
to hangdowns/hangups, which is a major safety factor for fishermen. A
few commenters believed that the lobster fishery should be exempt from
having to use sinking and/or neutrally buoyant line in LMA 3 deeper
than 90 fathoms (164.6 m or 540 ft). This area is very rocky.
Commenters stated ropes would be on rocks and would chafe off and cause
ghost gear. Another commenter stated that the Maine coast should not be
regulated by ``a one-size-fits-all'' strategy, and that the state is
divided into zones because they could not manage the areas very well by
one-size-fits-all, because every zone, every town, and every fisherman
has to do things differently (i.e., eastern Maine has extreme tides and
York County on the other end of the state does not have much tide).
Another commenter said the area south of Stonington and Boothbay have
mud on the bottom, and Downeast has rocky or ledgy bottom, so the areas
should be treated differently.
Response: The ALWTRP management areas were modeled after the
Federal LMAs with some additional unique areas also identified. NMFS
has conducted gear research in diverse habitat areas along the coast of
Maine over the years and believes that fishing could be successfully
accomplished in these areas using sinking and neutrally buoyant
groundline. See Response to Comment 128 with respect to unique bottom
types and physical environments.
Comment 148: Several commenters questioned the durability of
neutrally buoyant tail warps. The commenters

[[Page 57137]]

believed that warps made with neutrally buoyant line were not lasting
as long as those made with floating line, causing more frequent gear
replacement. Commenters stated the following problems with neutrally
buoyant tail warps: (1) Increased chafing and burring; (2) twisting of
the line around the traps; and (3) increased gear loss.
Response: There are currently many choices for fishermen in
selecting non-floating line. The line manufacturers are working closely
with fishermen to develop lines suitable for a variety of fishing
practices. NMFS notes that the fishing industry from Maine to Florida
utilized sinking and/or neutrally buoyant line successfully in a
variety of applications before the advent of floating line. Some
percentage of fishermen today do not use floating groundline for a
variety of reasons. NMFS believes that the industry can develop work
practices that will address the difficulties in transitioning from
floating groundline to sinking and/or neutrally buoyant groundline. The
potential for hangdowns and ghost gear may increase (see response to
Comment 149).
Comment 149: One commenter said that he went out with a few others
and tested the groundline/tail warp. The commenter went out with an
underwater robotic camera and went from Swans Island to Jericho Bay to
Isle au Haut to Deer Isle Thoroughfare. The commenter said that they
put the camera down on a lot of traps and the ten fathom (18.3 m or 60
ft) tail warp was 2-3 feet (0.6-0.9 m) off the bottom. The commenter
believed that this works even though some others were 15-18 fathoms
(27.4 m or 90 ft-32.9 m or 108 ft) and standing 5-6 feet (1.5-1.8 m).
Response: NMFS appreciates this report on demonstrated line
performance. NMFS will pass this comment on to the ALWTRT for
consideration when low profile groundline is further discussed.
Comment 150: One commenter said that at a recent TRT meeting, a
whale expert stated that as long as there is one piece of line in the
entire Atlantic Ocean that it poses a serious threat to the right
whale. The commenter believed that the comment sums up everything and
that NMFS will eventually try to take away line all together, not just
the ones discussed in the plan. The commenter said that fishing cannot
be done without rope, and the technology is not there to do so.
Response: NMFS recognizes a variety of opinions exist on these
issues. The options considered in this rulemaking did not include
removal of all lines as NMFS recognizes this is not a technically and
operationally feasible option.
Comment 151: For trap/pot gear, one commenter recommended
implementing groundline modifications from September 1 to March 31
rather than to May 1. The commenter believes this will reduce gear loss
and difficulty retrieving lost gear.
Response: The times and areas identified for gear modifications are
based on whale sightings data. April and May are months when whales are
expected to occur in the Mid-Atlantic. NMFS believes the September 1
through May 31 time period in the Mid-Atlantic is appropriate. Thus,
the gear modifications that reduce the threat of serious injury and
mortality due to entanglement in gear are required for that gear type
during these months.
Comment 152: One commenter states that 17-fathom Rocks area and
wrecks should be exempted from groundline requirements because their
line gets caught and can cause gear loss.
Response: NMFS recognizes that all rocky bottoms and wrecks present
a risk of hangdowns for all gear types. NMFS also recognizes that
sinking and/or neutrally buoyant line has been fished successfully
coastwide for many years by a variety of gear types through the
development and implementation of unique work practices. The 17-fathom
Rocks area mentioned by the commenter has a compliance date 12 months
after publication of this final rule, similar to other areas. Also see
response to Comment 128 regarding sinking and/or neutrally buoyant
groundline.
Comment 153: One commenter stated that sinking/neutrally buoyant
groundline is the most significant feature in the DEIS. The commenter
also stated that, since it is not fully required until 2008, it is
difficult, if not impossible, to review the effectiveness of this plan
before 2012.
Response: NMFS appreciates the comment on reviewing the
effectiveness of the plan and has created a Status Report Review
Committee as an outcome of the 2005 ALWTRT Meeting to discuss these
issues. NMFS believes that effectiveness will be discernable before
2012.
Comment 154: Several commenters stated that none of the
alternatives establish a mandated phase-in time for sinking groundline.
One commenter stated that, instead of relying on requiring a certain
percentage of traps to be re-rigged with sinking/neutrally buoyant
groundline by predetermined dates before 2008, the alternatives rely on
incentives of unknown effectiveness to encourage increased use of
sinking/neutrally buoyant groundline before 2008. Further, the
commenter stated that incentives allow vessels to enter areas otherwise
closed to fishing because of large aggregations of right whales. The
commenter stated that the DEIS does not contain any information about
how many fishermen operate in those areas or how many might convert
their groundline before 2008 as a result of being given access to those
areas.
Response: Several of the alternatives establish a mandatory date
for the use of sinking and/or neutrally buoyant groundline. The
commenter is correct in stating that the alternatives do not work on a
percentage of traps but instead require all gear be converted by an
established date. NMFS believes the required gear modifications reduce
the risk of entanglement to the large aggregations of whales referenced
by the commenter.
None of the alternatives in the FEIS remove time-area closures. In
fact, newly regulated gillnet and trap/pot fisheries are required to
abide by the current time-area closures for these gear types. The
commenter may be referring to the number of vessels allowed to enter
DAM areas. DAM announcements are unpredictable, making it difficult to
estimate the number of vessels affected. Chapter 5 of the FEIS
estimates the number of additional vessels that could be affected under
the alternatives. The removal of the DAM program and the interim
expansion of the SAM zone are designed to address the unpredictability
of large whale distribution, and they will be replaced with broad-based
gear modifications.
Comment 155: Several commenters are already rigging their gear with
sinking groundline due to SAM, DAM, Massachusetts requirements, and the
recent buyback program as well as individual preferences.
Response: NMFS acknowledges this fact and notes these actions may
mitigate the costs of the requirements of this final rule.
Comment 156: A few commenters were concerned that having to use
sinking/neutrally buoyant groundline will jeopardize their ability to
make a living as fishermen in Maine.
Response: Chapter 7 of the FEIS identifies vessel segments that may
be heavily impacted by comparing average vessel revenues with
compliance costs. The analysis suggests that under Alternative 6 Final
(Preferred), a limited number of small vessels are most at risk; about
half of these are Class I vessels operating in Maine waters. While
these vessels may still realize high costs relative to revenues,
fishermen have some options to try to mitigate the costs. For example,
the impacts of converting

[[Page 57138]]

to sinking and/or neutrally buoyant groundline may be defrayed, in
part, by current and future groundline buyback programs operated by
NMFS and other partners. Further, NMFS has considered concerns about
sinking and/or neutrally buoyant groundline in Maine in developing its
preferred alternative, identifying additional areas off the coast of
Maine that would be exempt from ALWTRP requirements. Expansion of the
exempted areas would reduce the economic burden on Maine lobstermen
without increasing entanglement risks. In addition, although the
requirements under Alternative 6 Final (Preferred) may impose
significant costs within the first year after publication of the final
rule (to convert all groundline to sinking and/or neutrally buoyant
groundline), fishermen may be able to distribute the cost of the new
gear over its useful life by seeking a loan. After the first year,
ongoing costs would be significantly lower as fishermen would only need
to replace worn-out and lost gear.
Comment 157: One commenter said that a consequence of the four
alternatives (Alternatives 2, 3, 4, and 6) would be that because
sinking groundlines are too dangerous to employ, lobstermen will be
forced to fish single traps in areas where they normally fish pairs,
triples, or small trawls. The commenter also said that this will be an
incredible economic burden to fishermen and it will double the amount
of surface lines and buoys.
Response: See Response to Comment 128 regarding safety. The social
impact analysis included in the FEIS examines the economic burden posed
by the alternatives and the likely effect on the economic viability of
fishing operations. The analysis identifies vessel segments that may be
heavily impacted by the requirements and suggests that under
Alternative 6 Final (Preferred) a limited number of small vessels are
most at risk when comparing annual compliance costs to average vessel
revenues.
Contrary to the commenter's assertion that the alternatives would
increase the amount of surface line, the alternatives are specifically
designed to reduce the amount of fishing line in the water column by
requiring sinking and/or neutrally buoyant groundline and by extending
sinking buoy line requirements at the surface to new fisheries not
currently covered by the ALWTRP. In addition, NMFS is currently
performing related research on vertical line by examining the
geographic distribution of vertical line relative to whale
distribution. This research will help characterize how ALWTRP
requirements and other regulatory changes have influenced risk from
vertical line. Additionally, NMFS has discussed and will continue to
discuss options to reduce risk associated with vertical line with the
ALWTRT.

Comments on Low Profile

NMFS solicited comments and information from the public on issues
related to ``low profile'' groundline (e.g., prey distribution, large
whale distribution and behavior, and methods for reducing the profile),
and received numerous comments. As many of those comments are not
directly related to the present rulemaking action, this preamble does
not respond to all of the ``low profile'' comments received during the
public comment period in this rule. NMFS will provide all comments
regarding low profile to the ALWTRT at the next meeting when low
profile groundline will be discussed further. NMFS and the ALWTRT will
have an opportunity to review and consider these comments at that time.
Comment 158: One commenter said that the state of Maine low profile
research that has been done with the underwater camera has not been
taken into consideration by NMFS.
Response: As noted in the preamble to the proposed rule and DEIS,
NMFS was unable to support using ``low profile'' groundline in the
development of this rulemaking action. NMFS identified additional
research and analysis necessary to determine 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 determined that the depth to which the groundline profile could be
reduced needs to be established after more information is collected and
analyzed 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. For example, NMFS has supported groundline studies by Maine DMR
since 2003, including use of a Remote Operating Vehicle (ROV) to
investigate groundline profile and the experimental testing of low-
profile groundline. During the development of this final rule, NMFS
also conducted a series of workshops in September 2005 to gather
information on low profile groundline, which included discussion of
Maine's research, and was discussed at the December 2006 ALWTRT
meeting. In addition, NMFS solicited comments and information on ``low
profile'' groundline through the public comment process for this
rulemaking. Thus, states and fishing industry are working with NMFS and
the ALWTRT to determine if emerging technology exists to allow a
conservation equivalent gear modification to sinking and/or neutrally
buoyant groundline in identified areas. NMFS may consider ``low
profile'' groundline in the future, and will be further discussing
these issues with the ALWTRT at the next meeting.
Comment 159: One commenter stated that sinking line between anchors
or concrete blocks and the traps is problematic as the line wraps
around these anchors. The commenter believed a 6-fathom (11.0-m or 36-
ft) piece of floating line or shorter piece (e.g., one to three fathoms
(1.8 or 6 ft to 5.5 m or 18 ft) is necessary in this area to avoid gear
loss and would not affect risk reduction.
Response: Based on this comment regarding the line between traps
and anchors, and review of the groundline definition, NMFS finds that
the definition does not cover this portion of the gear. (The groundline
definition ``with reference to trap/pot gear, means a line connecting
traps in a trap trawl, and with reference to gillnet gear, means a line
connecting a gillnet or gillnet bridle to an anchor or buoy line.'')
NMFS did not specifically seek or receive public comment on the
groundline definition related to the line between traps and anchors,
and accordingly cannot make any adjustments to the definition at this
time. NMFS will investigate this gear configuration through contact
with fishermen and states to determine how common a practice it is in
trap/pot fisheries, determine the type of line used in this portion of
the gear, quantify potential risk if floating line is used, determine
any new issues that may be raised by requiring sinking and/or neutrally
buoyant line in this area of the gear, and discuss the appropriate
management response with the ALWTRT at the next meeting.
Comment 160: One commenter said that more research on using low
profile groundline (i.e., groundlines that float between traps/pots at
a height no greater than 2 to 4 feet (0.6 to 1.2 m)) should be pursued
by NMFS as an administrative procedure.
Reponse: Low profile groundline is not being required in this final
rule. However, as noted earlier in this preamble, NMFS will be further
discussing the concept of low profile groundline with the ALWTRT at the
next meeting.

[[Page 57139]]

Comments on Gear Marking

Comment 161: Several commenters believe NMFS (and the Gear Research
Team) need to devise a better line marking strategy to get more
information about entanglements and enhance mitigation efforts.
Specifically, commenters urged NMFS to require different colors to
indicate the type and location of fishing gear. Several commenters
suggested putting a red tracer/colored tracer fibers in floating
groundline midway between each trap to see where the whales get caught
in the gear. Colored tracer fibers could be input/twisted in during the
manufacturing of the line; one commenter further states that no cost
estimates exist for color-coding into new line manufacturing. Many
commenters believe the marking should identify fishery, area fished,
and part of line, such that sinking/neutrally buoyant groundline is
distinguishable from floating groundline or buoy line. Another
commenter suggested NMFS should develop stainless steel or nylon type
bands that can be crimped around a line, or chips that can be inserted
into the line, coded with fishermen identification or fishery/gear/area
information, for all fixed gear fisheries and waters along the eastern
seaboard. The commenters suggested that the marking should indicate
state and gear type and should apply coast-wide. Several other
commenters suggested gear marking requirements that are more consistent
with current State, Federal FMP, and other TRT requirements.
Response: NMFS considered current State, Federal, and other TRT
requirements when finalizing the gear marking requirements in this
final rule. Through this final rule, NMFS will require specific color
coding for fisheries and areas not previously required to mark gear.
All specified gear in specified areas must be marked with a color code
that represents gear type and location. NMFS has tested stainless steel
or nylon type bands used around the line, and found that this causes a
safety issue when the band gets caught in the hauler. NMFS also found
that these bands wear out the line when being hauled, which in turn
destroys the integrity of the line. NMFS is currently working on a chip
technology that can be inserted into the line and coded with fishermen
identification for the entire eastern seaboard which will help to more
easily identify gear in the water. NMFS will discuss this technology
with the ALWTRT in the future.
Comment 162: One commenter suggested that NMFS require that inshore
gear at least be marked sufficiently to tell if it is risky for whales.
Response: NMFS agrees and confirms that provision was proposed and
is now being implemented in this final rule. Gear in ALWTRP inshore
management areas will be required to have one 4-inch (10.2-cm) colored
mark midway along the buoy line in the water column as well as surface
buoy markings. Many of these inshore areas are also state-mandated to
mark traps and buoy systems. NMFS is currently working on developing
chip technology that can be inserted into the line and coded with
fishermen information for the entire eastern seaboard which will help
to more easily identify gear in the water. NMFS will be discussing this
technology with the ALWTRT in the future.
Comment 163: One commenter supports the use of red tape to mark
gear in LMA 2, but wants to make sure that it is clarified that if less
than 60 fathoms (109.7 m or 360 ft), the mark is in the center of the
buoy line.
Response: Under this final rule NMFS will not be adopting the
proposed gear marking scheme for buoy lines as referred by the
commenter. Rather, the gear marking scheme will require one 4-inch
(10.2-cm) colored mark midway along the buoy line in the water column,
regardless of the length of the line. NMFS believes this requirement is
in line with what the commenter was suggesting.
Comment 164: Two commenters urged NMFS to require marking of all
surface buoy systems in federal and state waters in a manner that
identifies the owner/vessel such as vessel name and/or license/permit
number and/or fishery.
Response: NMFS will require trap/pot and gillnet gear to mark all
surface buoys to identify the vessel or fishery with one of the
following: The owner's motorboat registration number, the owner's U.S.
vessel documentation number, the federal commercial fishing permit
number, or whatever positive identification marking is required by the
vessel's home-port state.
With regard to gear markings that yield individual vessel
information, many of the state and Federal FMPs currently require
marking of buoys and/or traps with individual vessel identification.
NMFS plans to continue to work with state fisheries agencies to
investigate gear marking coast-wide and identify gaps in marking of
surface gear, gillnets, and traps.
Comment 165: One commenter believes buoy lines that are 50 fathoms
(512.1 m or 1,680 ft) or less should have one 4-inch (0.1 m) colored
mark unique to a fishery and state and for buoy lines above 50 fathoms
(512.1 m or 1,680 ft) should have two marks.
Response: Based on implementation considerations and technology
presently available, NMFS believes the final gear marking scheme is
appropriate. If more promising techniques become available in the
future, NMFS will discuss these further with the ALWTRT. See response
to Comment 163.
Comment 166: One commenter suggested marking buoy lines greater
than 20 fathoms (36.6 m or 120 ft) once midway in the lines and for
buoy lines greater than 100 fathoms (182.9 m or 600 ft) marking once at
least every 50 fathoms (91.4 m or 300 ft) for sinking and floating buoy
lines.
Response: See response to Comment 163.
Comment 167: Several commenters supported marking buoy lines with 1
four inch (0.1 m) mark every 10 fathoms (18.3 m or 60 ft). One
commenter supported the proposed gear marking scheme as long as it is
not too complicated and fishermen have enough time to comply. Another
commenter stated that he would mark buoy lines twice if it would help
determine the origin of gear. One commenter stated that, at the last
ALWTRT meeting, the team agreed that any additional requirements would
be decided by a gear group.
Response: See response to Comment 163. NMFS did solicit gear
marking options from the ALWTRT previously, and will continue to
discuss any other appropriate gear marking schemes/strategies with the
ALWTRT.
Comment 168: Many commenters object to the proposed scheme of
marking buoy lines with a 4-inch (0.1 m) mark every 10 fathoms (18.3 m
or 60 ft). Commenters objected to the proposed marking scheme for the
following reasons: (1) It would be impossible in deep water; (2) the
tape will not stick to wet rope, nor will paint. While these markings
could be applied to rope when dry, adjusting the marks at sea is
impossible; (3) marking techniques lose their visibility within a few
weeks in the water as algal growth accumulates on the ropes making the
mark hard to discern and basic wear and tear of marks; (4) gear marking
would be difficult to implement as line is spliced or fouled over the
course of its useful life; (5) there would be a problem in trying to
figure out whether the space between marks is exactly ten fathoms (18.3
m or 60 ft) when the lines are spliced due to broken buoys, lines etc.;
(6) it will be tough to mark at sea, especially given temperature, sea
state, and safety considerations; (7) the

[[Page 57140]]

proposed scheme would only identify a buoy line, but not a fishery or
even a region where the gear was fished (i.e., no unique identifier),
so this limits the amount of information that can be tracked and
evaluated; (8) it is too time consuming, costly, impractical, and
unworkable; (9) the marking scheme is generic and limited marks will
not provide much information; (10) too many areas will not have marking
requirements (e.g., exempted areas, recreational gear, Canadian
waters); (11) gear loss would be too much with using the new gear
marking; (12) it will be a financial burden to fishermen, without much
chance for results that are useful; (13) buoys and traps are already
marked under current lobster fishing rules; and (14) it would be hard
to enforce given the large number of recreational lobstermen. One
commenter states that if this provision is adopted, it might tempt
fishermen to use a different color code or no marking at all to divert
attention away from their sector.
Response: Based upon these comments, NMFS changes the regulations
through this final rule, to require all fisheries to mark buoy lines
with one 4-inch (10.2 cm) colored mark midway along the buoy line in
the water column and mark surface buoys. Requiring only one mark
alleviates all concerns regarding safety and other practicality issues
raised by commenters. NMFS will continue to discuss gear marking
strategies, factoring in safety and other concerns, with the ALWTRT.
Comment 169: Some commenters stated that fishers will be reluctant
to comply with the marking scheme because there is no direct risk
reduction to whales.
Response: NMFS believes that, although there is no direct risk
reduction to whales, the information obtained from gear marking may
assist in the management of incidental whale entanglements.
Comment 170: One commenter suggests more frequent marking of buoy
lines (e.g., every 5 fathoms (9.1 m or 30 ft)).
Response: See response to Comment 163.
Comment 171: Two commenters suggest marking the buoy lines less
frequently. One commenter believes that requiring marking in lesser
increments may increase compliance. One commenter believes one mark in
the middle of a rope is sufficient as there is no difference between
having one mark or ten marks.
Response: See response to Comment 163.
Comment 172: One commenter believes that in the various gear
marking systems proposed throughout the history of the ALWTRP, NMFS has
routinely failed to: (1) Incorporate and capitalize on gear marking
already required in the fishery under existing take reduction
regulations or FMPs; (2) augment the existing gear marking system with
more frequent marking requirements to increase the probability of
identifying gear type and parts (e.g., buoy line from groundline); and
(3) devise a marking system that is easy, safe, and technologically
feasible to implement.
Response: NMFS has capitalized on and considered other management
plans as well as take reduction regulations regarding gear marking
requirements. NMFS did consider more frequent marking in the proposed
gear marking scheme; however, based on public comments that this is not
operationally feasible, NMFS came up with the gear marking scheme that
is implemented in this final rule. NMFS is currently researching a
future marking system that is easy, safe, and technologically feasible
to implement.
Comment 173: One commenter states than an area-specific scheme may
complicate the marking strategy.
Response: NMFS does not believe that an area-specific scheme would
complicate the marking strategy because an area-specific scheme already
exists. However, to alleviate any possible complications, NMFS is
grouping requirements for all trap/pot fisheries and for all gillnet
fisheries. Where possible NMFS is expanding gear marking schemes to be
consistent with existing color schemes.
Comment 174: One commenter stated that fishermen would have to
replace the buoy line markings every time they move gear from shallow
(e.g., 3 fathom (5.5 m or 18 ft)) to deeper water (e.g., 30 fathom
(54.9 m or 180 ft)) such as what occurs along the hard bottom ridges
and reefs in and beyond Casco Bay. The commenter stated that it would
be time prohibitive to have to keep replacing the lines.
Response: NMFS believes that line would not have to be replaced,
but marks would have to be changed when gear is moved from shallow to
deeper water in all areas and when buoy lines are lengthened.
Comment 175: One commenter supports microchip tracer technology for
marking gear.
Response: NMFS agrees and is currently working on developing a
microchip technology for marking gear.
Comment 176: Several commenters agree with experts who request that
ropes be identifiable in aerial images of entangled whales.
Response: It is difficult to identify the gear on entangled whales
in aerial images at present, but NMFS is exploring technologies such as
microchip technology that will help to identify gear that is entangling
whales.
Comment 177: One commenter stated that gear marking may be a
problem to enforce because not many people know how much 10 fathoms
(18.3 m or 60 ft) is.
Response: As a result of the difficulty in implementation, NMFS is
changing the proposed buoy line marking requirement to one 4-inch (10.2
cm) colored mark midway along the buoy line in the water column.
Comment 178: One commenter would like the marking of surface buoys
to be consistent with the bottlenose take reduction plan.
Response: The Bottlenose Dolphin Take Reduction Plan (BDTRP) final
rule published on April 26, 2006 (71 CFR 24776), does not require the
marking of surface buoys.
Comment 179: One commenter stated that the proposed scheme does not
include any marking of groundline. Commenters suggested that NMFS
require all parts of the gear to be marked, including sinking
groundline to monitor its effectiveness; a specific color should be
used to identify sinking/neutrally buoyant groundline from floating
groundlines or buoy lines. NMFS should work with rope manufacturers to
designate such color codes.
Response: This final rule does not require the marking of
groundline. NMFS did not propose marking groundlines through this
rulemaking due to the time and cost burden associated with requiring
sinking and/or neutrally buoyant groundline coupled with the lack of a
suitable gear marking technique that reduces burden to fishermen (e.g.,
costs and labor) given the amount of line used in these fisheries. NMFS
will continue to discuss gear marking strategies with the ALWTRT and
support research and development of promising marking technologies.
Comment 180: One commenter wanted to know what studies have been
done in the Quoddy Head area. Specifically, examining the current. The
current is heavy and will wash marks off. The commenter also questioned
the gear marking of every 10 fathoms (18.3 m or 60 ft) and believed
that it would be a lot of marking due to the amount of buoy line
needed.
Response: NMFS is aware and has considered the impact of the heavy

[[Page 57141]]

currents in the Quoddy Head area (see the report ``Load Measurements in
Lobster Gear'' in NMFS' Large Whale Gear Research Summary (NMFS,
2002)). There are many reliable techniques available in marking or
affixing the color code: The line may be dyed, painted, or marked with
thin colored whipping line, thin colored plastic, or heat-shrink
tubing, or other material; or a thin line may be woven into or through
the line. In this final rule, the gear marking scheme will require one
4-inch (10.2-cm) colored mark midway along the buoy line in the water
column.
Comment 181: One commenter stated that all gear-buoys and floats
are marked by law so there are 3,000 chances to identify gear. The
commenter said that most of lines are marked 4 times with license
number, name, and sometimes home port.
Response: NMFS understands that there are requirements that both
traps and buoys be marked in many areas. To improve the chances of
identifying a gear type when neither a trap or buoy are recovered some
identification on the buoy line could be helpful. Under this final
rule, the gear marking scheme will require one 4-inch (10.2 cm) colored
mark midway along the buoy line in the water column. Additionally,
trap/pot and gillnet gear regulated by the ALWTRP must mark all surface
buoys to identify the vessel or fishery with one of the following: the
owner's motorboat registration number, the owner's U.S. vessel
documentation number, the federal commercial fishing permit number, or
whatever positive identification marking is required by the vessel's
home-port state.

Comments on Weak Links

Comment 182: Several commenters support the proposed use of weak
links/weak link regulations for the following reasons: (1) Fishermen
have been cooperative in using them; (2) considerable research has
already been done; and (3) weak links may reduce drowning deaths,
reduce rope wounds at early entanglement stages, and lessen the effects
of entanglement by allowing the whale to shed smaller lengths of gear.
Response: The continued cooperation and support from the fishing
industry is essential for the ALWTRP to achieve its goals. NMFS is
committed to gear research and development and intends to continue to
support studies on weak links, which add a level of protection for
large whales.
Comment 183: Several commenters support weak link research. One
commenter suggested that NMFS determine species-appropriate breaking
strengths and the best number and placement of weak links according to
gear type and use. Another commenter stated that weak links on the buoy
lines should be designed to break. One commenter believes that without
further research, NMFS cannot assume that the benefits of weak links to
survival of whales are greater than the dangers posed by weak links;
this commenter states that the greatest danger is using untested
methods that could result in death and injury to whales that should
have been protected by other means.
Response: NMFS is committed to gear research and development, and
intends to continue to support studies on weak links to reduce
interactions between large whales and commercial fishing gear. NMFS has
gear laboratories and research teams that specifically focus on gear
development and testing. Additionally, NMFS contracts with researchers,
individuals, and companies to develop gear solutions. Much of the
current take reduction plan measures are based on the outcome of such
gear research (e.g., weak links) conducted and/or funded by NMFS. NMFS
believes that weak links add a level of protection for large whales,
and in combination with other mitigation measures, serve as a valuable
conservation tool.
Comment 184: Numerous commenters stated that weak links have never
been proven to reduce risk and that NMFS relies too much on them.
Several commenters stated that lethal and life-threatening
entanglements are known to have involved gear with weak links still
attached, which had breaking strengths equal to or less than what NMFS
has proposed. One commenter stated that weak link requirements in
current ALWTRP regulations have been in place for nearly 5 years, yet
the rate of large whale entanglement has not been reduced. The
commenter believes that the effectiveness of deploying weak links on
gear needs to be better analyzed for entanglement prevention. Another
commenter suggested weak link failure may be a result of where the weak
links are being placed in the gear.
Response: There is no evidence to suggest that weak links, when
designed and used properly, are ineffective. Weak links reduce the
breaking strength of traditional gear. The breaking strength of weak
links is based on the tractive force of animals in addition to
commercial fishing practices (DeAlteris et al., 2002). Weak links add a
level of protection for large whales and NMFS intends to continue to
support studies on weak links to reduce entanglement risk. See also
response to Comment 183.
Comment 185: One commenter agrees with using weak links in gillnets
more than in buoy lines, but does not believe that NMFS has proven that
1,100-lb (499-kg) weak links are sufficiently risk averse.
Response: NMFS believes that 1,100-lb (499-kg) weak links reduce
entanglement risks by reducing breaking strength of traditional gear,
which ranges from 3000 to 5000 lbs (1361 to 2268 kgs). The breaking
strength of weak links is based on the tractive force of animals in
addition to commercial fishing practices (DeAlteris et al., 2002).
Should new information become available that may warrant a change to
the weak link tolerances in gillnets, NMFS will consider this new
information in consultation with the ALWTRT.
Comment 186: Several commenters disagreed with requiring five or
more weak links with a 1,100-lb (499-kg) breaking strength per net
panel. One commenter stated that modifying gear under the proposed weak
link regulations is not possible, as they will incur great financial
losses during haulback. One commenter specifically suggested conducting
further research to determine if this is operationally feasible for the
offshore gillnet fishery in Maine.
Response: In developing the appropriate gear modifications in this
area, testing has been done with offshore vessels in the Gulf of Maine.
Testing showed no additional operational problems beyond those
experienced in the course of traditional fishing practices. NMFS worked
closely with commercial fishermen and the state of Maine to develop
weak links for fishermen in this area.
Comment 187: A few commenters questioned why NMFS is proposing to
retain the same breaking strength for inshore fisheries while allowing
greater breaking strengths in offshore fisheries. Several commenters
stated that weak link breaking strengths should be greater for offshore
fisheries. One commenter believes that, for the lobster trap/pot
fishery, the weak links should be 1,500 lb (680.4 kg) offshore and 600
lb (272.2 kg) inshore, and should be in place from Sept 1-Mar 31 only.
Another commenter would like to see a 1,000-lb (499-kg) weak link or
1,500-lb (680.4-kg) weak link versus a 600-lb (272.2-kg) weak link in
offshore waters so that there is not as much gear loss during bad
weather.
Response: Several months of at-sea testing of trap/pot gear has
been conducted and NMFS believes the breaking strengths in this final
rule for inshore and offshore fisheries are

[[Page 57142]]

appropriate. NMFS is reducing the breaking strength for weak links in
the ALWTRP offshore management areas from 2,000 lb (907.2 kg) to 1,500
lb (680.4 kg) akin to the current weak link requirement for SAM. There
is not a 600-lb (272.2-kg) weak link requirement in the ALWTRP offshore
management areas. If the commenter meant to say ALWTRP nearshore
management areas as mentioned above, NMFS believes the weak link
requirements in this final rule are appropriate. In developing the
appropriate breaking strengths, NMFS considered tide, sea conditions,
weather conditions, load cell data, and size and weight of gear.
Comment 188: One commenter would like to see weak links for inshore
pot fisheries be 1,000 lb (499 kg) in case the trap itself is
considered a weight under the regulations.
Response: NMFS does not consider the trap itself to be a weight in
the regulations. In this final rule, the ALWTRP inshore trap/pot
management areas will be required to have 600-lb (272.2-kg) weak links.
See response to Comment 187.
Comment 189: One commenter stated that the load testing information
presented at the 2003 and 2004 TRT meetings does not support breaking
strengths as strong as presented for many trap/pot fisheries, as well
as offshore fisheries. The proposed rule (70 FR 35903, June 21, 2005)
notes that load cell testing showed a strain of 320 lbs (145.1 kg) was
necessary to haul the gear, therefore, allowing a breaking strength of
almost 4 times that is excessive and likely to pose greater risk to
whales than is necessary.
Response: The Cordage Institute establishes safety standards for
rope, and has come up with a safety factor, or safe working load of 10
in applications such as commercial fishing. See response to Comment
187.
Comment 190: One commenter stated that in Cape May, New Jersey, the
fishermen have a lot of trouble with 50-foot (15.2-m) sport boats
hanging on buoys, and at night in canyons you can see 20-30 boats
hanging on every one of the buoys. The commenter believed that the
1,500-lb (680.4-kg) weak links could not hold a 50-ton sport boat. The
commenter believed that this is the biggest concern with the weak links
in the offshore fishery.
Response: NMFS will share this information with law enforcement
officials and encourages the commenter to work with local law
enforcement in an effort to address this issue.
Comment 191: One commenter believes that it is inequitable to allow
gillnetters to use 1,100-lb (499-kg) weak link when traps/pots have to
use 600-lb (272.2-kg) buoy line weak links. One commenter questions if
a 1,100-lb (499-kg) weak link is sufficient throughout the coastline.
The commenter stated that while it is appropriate in some areas, others
areas like Stellwagen Bank and Jeffreys Ledge may be able to use 600-lb
(272.2-kg) weak links. The commenter is concerned about young whales
not being able to break free. The commenter recommends that NMFS
explore feasibility of 600-lb (272.2-kg) weak link for certain high-use
areas such as Stellwagen Bank, Jeffreys Ledge, and other inshore areas.
The commenter states there have been no failures in approximately 3,600
hauls.
Response: NMFS developed weak link breaking strengths for gillnet
and trap/pot fisheries based on load cell testing of surface systems as
well as operational issues. In this final rule, NMFS lowered weak link
breaking strengths for some fisheries and management areas. NMFS
believes the weak link breaking strength requirements in this final
rule, including those for Stellwagen Bank and Jeffreys Ledge, are as
low as is practical. Further reductions, if required as broad based
management measures, could jeopardize safety.
Comment 192: One commenter stated that all state waters should be
exempt from weak link requirements for inshore gillnets (strikenets).
Response: This final rule does provide an exemption from the ALWTRP
requirements in bays, harbors, and inlets in state waters where whales
occur rarely if at all. However, those waters that are not exempt are
subject to the ALWTRP requirements. NMFS believes anchored gillnet
fisheries in regulated state waters should be subject to weak link
requirements because large whales are likely to occur in these areas
during the seasons specified under this final rule.
Comment 193: One commenter believes the breaking strength
calculation is not appropriate (i.e., considered by some to be
``arbitrary'') and is only based on fishing practices.
Response: NMFS disagrees with the commenter and believes that the
weak link requirements described in this final rule are appropriate and
based on appropriate calculations. In developing the appropriate
breaking strengths, NMFS considered tractive force of right whales,
tide, sea conditions, weather conditions, load cell data, and size and
weight of gear (DeAlteris et al., 2002). See response to Comment 183.
Comment 194: Several commenters prefer 2,000-lb (907.2-kg) buoy
line weak links (rather than 1,500-lb (680.4-kg)) from September 1-
March 31 because of issues related to weather, wind, and tides
throughout the fall and winter. Further, the commenters state that
grappling is hazardous and stronger links will reduce ghost gear. One
commenter believes there is no evidence to require gillnets set in deep
water to have weak links. The commenter questions whether they would be
recovered intact, especially given tidal and storm impacts to nets.
Response: Gear research conducted by NMFS and the fishing industry
does not support these concerns. NMFS believes the weak link
requirements described in this final rule are appropriate. NMFS
collected load cell data in offshore areas during the time period
suggested by the commenter, which support the effectiveness of 1,500-lb
(680.4-kg) weak links. With regard to the hazards of grappling, see
response to Comment 128.
Comment 195: Several commenters suggested method alternatives to
the proposed weak link configuration/measures such as: (1) Rigging nets
with weak lines (ropes of appropriate breaking strength) that meet
breakaway standards instead of with multiple weak links. For example,
if the breaking strength of vertical breastlines are less than 1,100 lb
(499 kg), the commenter believes a weak link should not be required;
(2) using 4 weak links per net panel rather than 5, with a single weak
link in the center of the panel's headrope, and one at each end of the
headrope within the bridles; (3) using one weak link between net panels
plus a weak link in the center of each net panel and one at either end
of net before the anchor and buoy system; for the up and down line, the
commenter suggests rope of appropriate breaking strength of 1,100 lb
(499 kg); (4) using one weak link in the middle of the panel and one
weak link in the bridle between nets (instead of using of three weak
links in the float line of 50-fathom (91.4-m or 300-ft) net panels);
and (5) using 1,100-lb (499-kg) weak rope for the floatline.
Response: Based on public comments, NMFS makes a change from the
proposed rule to allow two weak link configurations for net panels in a
string [See Changes from Proposed Rule]. Details for the two
configurations can be found in the Anchored Gillnet section of the
Northeast Gillnet Waters section of this preamble. For further
description and a diagram of the two configurations see Figure 4 in
this preamble. The breaking strength of each weak link must not exceed
1,100 lb (499 kg) and the weak link requirements apply to all
variations in panel size. Elements of the two weak link configurations
are similar to aspects of the above comments. In

[[Page 57143]]

addition, if rope of appropriate breaking strength is used throughout
the floatline or up and down line, or if no up and down line is
present, then individual weak links are not required.
Comment 196: One commenter supports one weak link at intervals no
less than every 25 fathoms (45.7 m or 150 ft) in gillnets.
Response: Based on gear research conducted by the Gear Research
Team, NMFS believes weak links placed no greater than every 25 fathoms
(45.7 m or 150 ft) along the floatline for gillnet net panels is an
appropriate mitigation measure for gear returned to port in the Mid-
and South Atlantic. The net panels are typically 50 fathoms (91.4 m or
300 ft), so this requirement ensures one weak link per net panel.
Comment 197: One commenter opposes one 1,100-lb (499.0-kg) weak
link per panel for gillnets returning to port. The commenter uses
``strike nets'' and catches croaker close to the beach in New Jersey
state waters from August to November. The commenter states there has
been extensive observer coverage in the last 4 years (72 observed
trips) and no reported entanglements.
Response: In the Mid-Atlantic, only one weak link per net panel is
required for nets returning to port with the vessel. To account for
differences between nets returning to port and those not returning to
port with the vessel, more weak links per net panel will be required
for nets not returning to port. NMFS acknowledges that few interactions
between large whales and commercial fisheries have been observed and
recorded by NMFS observers. These are rare events; however, they are
occurring at a rate unsustainable for these large whale populations.
Comment 198: One commenter believed the 25-fathom (45.7-m or 150-
ft) weak link belongs between the net and not on ends. The commenter
claims it is easier and less burdensome and it also accomplishes the
same thing.
Response: Based on research conducted by the Gear Research Team,
NMFS believes that the configuration specified in this final rule for
net panel weak links is the most appropriate measure. See responses to
Comments 195 and 196.
Comment 199: One commenter would like clarification on the wording
of weak link for up and down lines as most fishermen call them
breastlines. One commenter stated that weak links should not be
required in breastlines in those fisheries where the breastline is
composed of twine.
Response: The up and down line is defined as the line that connects
the floatline and leadline at the end of each net panel. For further
details on weak link configurations for net panels, see response to
Comment 195. NMFS notes in this final rule that, if rope of appropriate
breaking strength is used throughout the floatline or up and down line
(i.e., breastline) or if no up and down line is present, then
individual weak links are not required. Thus, if the breastline is
composed of twine, as long as it is of appropriate breaking strength,
then individual weak links would not be required.
Comment 200: A few commenters believe that the use of breakaways or
weak links in beach seine gear is going to be a problem. They believe
that if the weak links break, the net will hang down on the beach and
the net will rip. Also, the weak links will break when hauling, and the
1,100-lb (499.0-kg) weak link affects the hang.
Response: At this time, NMFS is not regulating gillnets that are
anchored to the beach and subsequently hauled onto the beach to
retrieve the catch. This fishing technique is known to occur on the
beaches of North Carolina. NMFS will be discussing what the appropriate
management measures for this unique fishery should be with the ALWTRT
at future meetings. In the meantime, NMFS will be conducting outreach
and research on this fishery to support future discussions with the
ALWTRT. NMFS will be coordinating with the North Carolina Department of
Marine Fisheries to revise the definition for beach-based gear to help
ensure landings are reported accurately for beach-based gear versus
gillnets, among other issues.
Comment 201: One commenter said that 1,500-lb (680.4-kg) weak links
cannot be purchased. The commenter said that the person who makes weak
links will not make them because nobody buys 1,500-lb (680.4-kg) weak
links.
Response: NMFS disagrees. Weak links with a breaking strength of
1,500 lb (680.4 kg) are currently available on the market.
Comment 202: One commenter states that it seems clear from
observations of whales that they thrash upon becoming entangled and
this may reduce efficacy of weak links. Perhaps placing a weak link at
the bottom of vertical lines would allow an animal to pull free with
more ease but it can still wrap itself.
Response: Currently, little is known about whales' behavior upon
encountering gear. Weak links placed at the bottom of the vertical line
could present safety issues as well as problems retrieving gear. NMFS
intends to continue to support studies on weak links to reduce the risk
to whales.
Comment 203: One commenter suggests certain strengths of weak links
for different parts of the year.
Response: This final rule requires weak link breaking strengths
based on management areas and does not have a seasonal component to
them. However, in special management areas, weak link breaking
strengths are lowered during certain times of the year when right
whales are present. The commenter is encouraged to work with the NMFS
Gear Research Team to develop additional gear research deemed
necessary.
Comment 204: One commenter said that where he anchors in southern
New England, it is mostly mussels and hard bottom. Usually, the net
gets wrapped in mussels and rocks and it will not go anywhere when
something hits it. But, years ago, scallopers would hit his nets and go
right through them, taking that section of the net right out, without
breakaways (i.e., weak links). The net does not move when it is hit, it
gets shredded.
Response: NMFS recognizes that nets not properly anchored can
easily move across the bottom, as well as up and into the water column.
Consequently, research has been conducted to establish anchoring
requirements that are appropriate for the weak links in the gillnet
panels.
Comment 205: One commenter was concerned about weak links in net
panels south of 29[deg]00' N. causing gear loss in the southeast
because the gear is hauled over the stern. The commenter said that
fishermen do not need weak links in the southeast as gear is tended,
the nets are shorter, effort is low, and the size of the fishery is
small. The commenter also said that fishermen are required to move gear
if a whale comes near the gear.
Response: NMFS conducted research on several vessels in the
southeast region and found that the non-shark gillnet gear could be
fished with weak links. These weak link requirements are similar to the
Mid-Atlantic where some fisheries are conducted similar to those in the
southeast. Weak links are one of the broad-based gear modifications
that NMFS is implementing through this final rule. However, in the
Southeast, weak link requirements are only applicable to non-shark
gillnet fisheries (i.e., not shark gillnet fisheries).
Comment 206: Two commenters cited problems with weak links and
heavy boating traffic. One commenter believed that weak links are
easily broken due to heavy pleasure boat traffic. The other

[[Page 57144]]

commenter stated a loss of 10-percent of his buoys due to boat traffic.
Response: Pleasure boats causing loss of surface systems is not
necessarily due to the weak link. Based on the result of at-sea
testing, NMFS believes the breaking strength requirements are
appropriate.
Comment 207: One commenter states that weak links are unnecessary
in shoal waters because they pose a problem when changing lines, plus
whales would hit the bottom if they entered these areas. However, the
commenter understands that whales could be in 40-50 fathom (73.2 m or
240 ft-91.4 m or 300 ft) water.
Response: NMFS has determined based on its understanding of current
fishing practices that placing weak links as close to the buoy as
operationally feasible presents little problem when changing buoy line,
whether the trap is in shoal or deep water.

Comments on Vertical Lines (or Buoy Lines)

NMFS solicited comments and information from the public on issues
related to vertical line (e.g., how whales utilize the water column,
gear modification options). Those comments related to this rulemaking
action are responded to below. Those comments that are outside the
scope of the present rulemaking action are not responded to in this
final rule, but will be provided to the ALWTRT at the next meeting,
when options for reducing risk associated with vertical lines will be
discussed further. NMFS and the ALWTRT will have an opportunity to
review and consider these comments at that time. It is important to
note that NMFS provided the ALWTRT with a list of management options to
reduce risk associated with vertical line to support future discussion
on this issue. Additionally, NMFS is funding an analysis to evaluate
the effectiveness of current and/or future fishing effort reductions in
decreasing the amount of vertical line in the water column. This
information will be provided to the ALWTRT at the next meeting to
assist in the discussion and development of recommendations to NMFS on
reducing risk associated with vertical line.
Comment 208: A few comments were received that claimed that the
DEIS was inadequate because it only dealt with half of the entanglement
risk to large whales. The commenters referenced the Johnson et al.
(2005) analysis, which was provided in the DEIS, and indicated that
entanglements occur in both groundline and vertical lines on an equal
basis. Some commenters believe NMFS has not quantified the net change
in risk (between one buoy line or two) or the biological impacts and
has not offered a compensatory risk reduction measure.
Response: NMFS considered the Johnson et al. (2005) analysis that
examined the fishing gear involved in right and humpback whale
entanglements. According to Johnson et al. (2005), any line rising into
the water column presents an entanglement risk to large whales. While
it may appear from this analysis that buoy and surface system lines
represent a greater entanglement risk to large whales than groundlines
do, both the authors of the analysis and the DEIS note that it is
difficult to compare the relative risks associated with these parts of
fixed gear for a number of reasons. There are many uncertainties
associated with entanglements; for example, the history of a particular
entanglement may not be fully reflected from the gear recovered or the
location of gear on a whale's body when an entanglement is first
reported. There are also biases associated with entanglement reporting
effort, as well as a lack of information about the types and amounts of
gear currently in use. In addition, it is possible that entanglements
in buoy lines are reported more frequently at sea than entanglements in
groundline, as buoy lines are easier to identify based on the presence
of a buoy or high flyer. Groundline does not have any distinguishing
characteristics that would make it easy to identify; thus, this part of
the gear can usually only be identified if gear has been recovered from
an entangled whale, and even then it is difficult to determine the part
of the gear that piece of line came from. Johnson et al. (2005) state
that, despite gear recovery and/or identification, 44 percent of the
entanglement events analyzed in the study involved an unknown part of
the gear. The study confirms that vertical lines and floating
groundlines pose risks for large whales. NMFS believes that addressing
the risk associated with floating groundline by requiring the use of
sinking and/or neutrally buoyant groundline will reduce serious injury
and mortality of large whales due to incidental entanglement in
commercial fishing gear. As noted in the DEIS and FEIS, NMFS believes
that further research and discussions with the ALWTRT are needed to
address risks associated with vertical line.
At this time, neither the ALWTRT or NMFS is able to identify a
viable option for further reducing the risk associated with vertical
lines. NMFS has, in fact, concluded 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. NMFS will work with the ALWTRT to address the risk
associated with vertical lines through future rulemaking.
Comment 209: Several commenters prefer the single buoy line
requirement in SAM. One commenter stated that this would decrease the
number of buoy lines in the water, which offsets the amount of ghost
gear created from gear lost due to weather, gear conflicts, etc.
Another commenter suggested using one buoy line in Cape Cod Bay, Great
South Channel, Stellwagen Bank/Jeffreys Ledge, other Northeast gillnet
waters, SAM, Mid-Atlantic Coastal waters, and other Southeast gillnet
waters.
Response: As noted in Comment 208, neither the ALWTRT nor NMFS is
able to identify a viable option for further reducing the risk
associated with vertical lines at this time. NMFS has concluded that
allowing the use of two buoys in SAM areas as specified in this final
action will not result in an increase in the amount of vertical line in
the water. NMFS will work with the ALWTRT to address the risk
associated with vertical lines through future rulemaking.
Comment 210: Many commenters supported the use of two buoy lines
for the following reasons: (1) It would reduce the number of buoy lines
in the area; (2) it would make gear easier to grapple; (3) it would
help reduce gear loss/ghost gear; and (4) it would provide for safer
hauling conditions.
Response: NMFS supports and allows the use of more than one buoy
line. However, NMFS notes that Cape Cod Bay (January 1--May 15),
Northern Nearshore Lobster Waters, Stellwagen Bank/Jeffreys Ledge
Restricted Area, and Cape Cod Bay Restricted Area (Federal Waters May
16-December 31) currently have minimum limits on the number of traps
per one buoy line. See response to Comment 208.
Comment 211: Many commenters supported 2 buoy lines for trawls of 5
or more traps.
Response: NMFS agrees with the commenters that 2 buoy lines are
needed for many fixed gear fisheries. However, see response to Comment
208. NMFS notes that Cape Cod Bay (January 1-May 15), Northern
Nearshore Lobster Waters, Stellwagen Bank/Jeffreys Ledge Restricted
Area, and Cape Cod Bay

[[Page 57145]]

Restricted Area (Federal Waters May 16-December 31) currently have
minimum limits on the number of traps per one buoy line. See response
to Comment 213.
Comment 212: One commenter supports a second buoy line in SAM. The
commenter believes this will cut the overall numbers of buoys in SAM.
Currently, most people have 2-3 traps on a buoy line because the traps
are too expensive to risk setting more on a single buoy line. Thus, if
NMFS allowed a second buoy line, there would be fewer small sets of
gear and less buoys, and the risk for gear loss would also be reduced.
Response: As discussed in the response to Comment 209, the use of
two buoy lines is allowed in SAM areas through this final action.
Additionally, see response to Comment 211 for a reminder of the areas
where minimum limits on the number of traps per one buoy line are
required.
Comment 213: Several commenters did not support the use of one buoy
line per trawl of 4 or fewer traps. The commenters state that this may
cause fishermen to shorten trawl lengths and/or split their trap trawls
to minimize losses and maintain the current number of traps in use.
This may then cause an increase in the number of buoy lines in the
water column.
Response: NMFS will further address issues related to serious
injury and mortality due to vertical lines through future rulemaking.
In regard to the number of buoys per trawl allowed, this final action
will maintain the status quo (i.e., one buoy line per trawl of five or
less traps) for the various management areas that were under
consideration. Therefore, NMFS is rejecting the alternative considered
in the DEIS that allows the use of one buoy line per trawl of 4 or less
traps. NMFS recognizes the concern raised by the commenters that some
individuals may shorten trawl lengths, thereby resulting in additional
buoy lines being deployed under the current management regime. As
noted, NMFS intends to work with the ALWTRT to address the risk
associated with vertical lines through future rulemaking.
Comment 214: Some commenters believe there is no justifiable basis
for allowing two buoy lines (other than to avoid gear loss).
Response: NMFS has received reports indicating that allowing only
one buoy line may cause some fishermen to split their trawls and fish
shorter trawls, which can result in the same or a greater number of
buoy lines. In addition, requiring fishermen who traditionally fished
longer trawls with two buoys to use a single may present a safety
hazard for fishermen. Having a single buoy dictates the direction from
which fishermen can haul/retrieve their gear. Depending on the sea
state, this may place the crew and vessel in harm's way if the vessel
is not in the preferred and/or more stable hauling position. Having the
choice to start a haul from either end of a string allows fishermen to
choose the safest and most stable vessel direction relative to wind and
sea conditions. In addition, the use of a second buoy line on trawls/
strings of gear could provide a platform for continued testing of new
buoy line modifications designed to address the threat of vertical line
entanglements. Several potential gear modifications that offer
opportunities to reduce the serious injury and mortality due to
vertical lines are under investigation (e.g., Time Tension Line Cutter
(TTLC), acoustic pop-up buoys, the use of buoy line retrieval line or
tag line (made from line with a reduced breaking strength) marking the
gear's position, acoustic hauling/release links and galvanic timed
release devices).
Comment 215: One commenter states that one buoy line for four or
fewer traps is less restrictive than one buoy line for five or fewer
and this will increase the number of buoy lines in the water column,
which represents a relaxation of the current requirement. Further, the
commenter states there is no way to measure the benefits of relaxing
this requirement.
Response: As discussed in the response to Comment 213, this action
will maintain the status quo (i.e., one buoy line per trawl of five or
less traps) thereby rejecting the alternative considered in the DEIS
that allows the use of one buoy line per trawl of four or less in
certain management areas.
Comment 216: Two commenters said NMFS should minimize the number of
knots in buoy lines or require knot-free buoy lines.
Response: NMFS currently encourages, but does not require,
fishermen to maintain knot-free buoy lines. While splices are
considered less of an entanglement threat and are preferable to knots,
NMFS recognizes that such a requirement is not practical, has safety
concerns, etc. However, NMFS has encouraged the development of a device
that makes knotless connections. If such a device is developed in the
future, NMFS will revisit the issue at that time.
Comment 217: Several commenters support allowing \1/3\ poly on the
bottom of buoy lines.
Response: Through this final action, fishermen have the option to
use buoy lines with the bottom \1/3\ of the line composed of floating
line within SAM areas and Cape Cod Bay during the restricted time
periods. The remainder of the line must be composed of sinking and/or
neutrally buoyant line. Outside of SAM areas and Cape Cod Bay,
fishermen have the option to utilize buoy lines composed of what ever
type of rope they choose as long as no buoy line is floating at the
surface. Following 12 months after publication of this final rule,
fishermen will have the option to utilize the type of buoy line they
choose to use in current SAM areas, again, as long as no buoy line is
floating at the surface.
Comment 218: Two commenters requested to use more floating line in
buoy line than what was proposed. One commenter stated that if fishing
in 50 fathoms (91.4 m or 300 ft) of water, fishermen need more because
if they use sinking line, the tide will take down the buoy, but if they
use more floating line then they can use less buoy line. The commenter
said that floating line helps keep the line on the surface and that
they need more than \2/3\ floating line in heavy tides. Another
commenter said he uses \1/2\ to \2/3\ floating line in his buoy line.
Also, if he was required to only use \1/3\ poly at the bottom, he would
have to use toggles, which are a safety hazard to fishermen.
Response: As discussed in the response to Comment 217, outside SAM
areas and Cape Cod Bay, fishermen have the option of utilizing the type
of buoy line they choose as long as there is no buoy line floating on
the surface. The option to use buoy lines with the bottom \1/3\ of the
line composed of floating line applies only to the SAM areas and Cape
Cod Bay during the restricted time periods and is not one of the broad-
based measures implemented by this final action. Following 12 months
after publication of the final rule, fishermen will have the option to
utilize the type of buoy line they choose to use in current SAM areas
as long as no buoy line is floating at the surface.
Comment 219: One commenter said that floating rope does not float
on the surface of the water like NMFS thinks it is.
Response: NMFS recognizes that a number of factors may affect the
profile of buoy line and groundline in the water, including tide and
current. In the case of groundline, underwater video recordings of
typical trap/pot gear with floating groundline between traps revealed
that the line often forms large loops in the water column between
traps. While there is currently no definition for ``floating rope'',
this final rule provides definitions of ``neutrally

[[Page 57146]]

buoyant line'' and ``sinking line'' (see section 229.2). Under the
ALWTRP, buoy line floating at the surface is universally prohibited.
Comment 220: One commenter states that the use of neutrally buoyant
line has not been proven for buoy lines in all conditions.
Response: Presently, fishermen use neutrally buoyant line for buoy
line in active fishing operations. In addition, a recent modeling study
conducted by the Massachusetts Department of Marine Fisheries compared
the profiles of buoy lines of different proportions of floating,
sinking and neutrally buoyant rope under a variety of currents. The
modeling results indicate that, except for at all but the lowest of
currents, buoy lines showed similar profiles regardless of line
composition (i.e., sink, float, neutrally buoyant). Finally, it is
known that fishermen have experimented with neutrally buoyant rope as
buoy lines since the late 1990s and continue to use it.
Comment 221: One commenter states that the bottom \1/3\ floating
line on buoy lines should be allowed in SAM. He also stated that flume
experiments showed that leaving the bottom \1/3\ as floating line did
not pose a problem to the whales and also prevented the traps from
``rocking down'' (i.e., hanging down). He states that floating
groundline is the cause of most entanglements, and that there is more
groundline in the ocean than buoy line, thus groundline should be
regulated more than buoy line.
Response: See response to Comment 217.
Comment 222: One commenter states that a clip is needed to take
buoys off the line.
Response: Clips to facilitate removal of buoys are not prohibited
as long as they are located above the strong end of the weak link in
the buoy line.
Comment 223: One commenter states that, for vertical line in 30
feet (9.1 m) water, there are 150 feet (45.7 m) of vertical line. In
the bay with less current, any sinking rope has a tendency to get
wrapped around the anchor.
Response: See response to Comment 217.
Comment 224: One commenter said that, if sinking vertical lines are
required, people are going to use toggles and they are going to tie or
snap-on toggles to the vertical line. These toggles will keep rope
straight up, which is going to produce more stuff for whales to drag
around.
Response: See response to Comment 217.
Comment 225: One commenter said that no options were considered
other than weak links.
Response: In addition to weak links, a number of options to reduce
the risk of serious injury and mortality due to vertical lines have
been considered. While the alternatives considered in this proposed
rule focus primarily on reducing risks associated with groundlines,
NMFS is responding to the vertical line issue through such measures as
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. As a result, NMFS is outlining
a strategy to reduce interactions with groundlines in this final rule,
along with some measures to address vertical lines, and plans to
further address the risk associated with vertical lines through future
rulemaking. In addition, research into reducing the risk associated
with vertical line is ongoing. This research is focusing on the
profiles of vertical line with different buoy line configurations
(e.g., sinking and/or neutrally buoyant vs. polypropylene), as well as
other 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.
Comment 226: One commenter stated that fishermen use a knot in the
middle attached to a buoy to keep sinking line off the bottom and asked
that we not eliminate buoy line with \2/3\ sinking line on top spliced
to \1/3\ floating line on the bottom, which is more whale-friendly.
Response: NMFS currently encourages, but does not require,
fishermen to maintain knot-free buoy lines. See response to Comment
217.

Comments on Gillnets

Comment 227: One commenter cannot see how gillnets can ever be
modified such that they are risk-free to whales, unless a pinger
modification is found that works with no adverse effects.
Response: NMFS believes that the required gear modifications will
prevent entanglements where possible and reduce the severity of
entanglements due to gillnet gear and will reduce the risk of serious
injury or mortality. At this time, NMFS does not believe that Acoustic
Deterrent Devices (ADDs or pingers) and Acoustic Harassment Devices
(AHDs) are an appropriate measure to reduce interactions with large
whales. ADDs (or pingers) and AHDs are audible alarm devices which warn
small cetaceans and pinnipeds away from commercial fishing gear and
aquaculture operations by emitting sound pulses. No evidence exists
that large whales would, in fact, respond to such a sound signal. In
addition, exposure to alarm or alerting stimuli may result in whales
abandoning a desired feeding or mating area, which could result in
significant adverse effects on the population. Finally, ADDs typically
operate at much higher frequencies (e.g., about 12 kHz) than right
whales generally hear and vocalize (e.g., less than 4 kHz).
Comment 228: One commenter suggested that NMFS implement gillnet
measures year-round everywhere, including the Southeast.
Response: The potential for entanglement of whales in the south and
Mid-Atlantic waters during summer months is minor. Therefore, the year-
round requirements offer only minimal risk reduction compared to the
seasonal requirements provided in this final rule, which are based on
the movement and sightings of whales.
Comment 229: One commenter urged NMFS to prohibit gillnets from
Stellwagen Bank National Marine Sanctuary.
Response: See response to Comment 16.
Comment 230: NMFS received one comment in support of the 22-lb (10-
kg) Danforth-style anchor.
Response: NMFS agrees that the 22-lb (10-kg) Danforth-style anchor
is appropriate based on research and testing and has implemented this
provision in this final rule.
Comment 231: One commenter opposed the anchoring requirement for
``stab nets'' in the Mid-Atlantic.
Response: In Mid-Atlantic gillnet waters, the anchoring requirement
is only in effect when anchored gillnets do not return to port with the
vessel. Therefore, this final rule does not contain an anchoring
requirement for stab nets returned to port with the vessel.
Comment 232: Several commenters cautioned that many of the proposed
gear modifications (e.g., the use of sinking line, weak links and 22-lb
(10.0-kg) Danforth anchors) pose considerable safety risks to
fishermen. These commenters advised that sinking line will snag on
jagged bottom surfaces, weak links could snap during hauls, and
Danforth anchors will be dangerous to retrieve in rough seas. One
commenter also stated that the difficulty of retrieving Danforth
anchors in adverse conditions will lead to more anchors being left on
the bottom and force

[[Page 57147]]

fishermen to buy already-expensive replacement anchors more often.
Response: Safety issues are always a concern to NMFS. NMFS believes
that the gear modifications required under the ALWTRP do not present
significant increased dangers above those of normal fishing practices.
However, NMFS will continue to monitor this situation through
discussions with industry and the ALWTRT. All three modifications
stated by the commenters were tested in the Northeast, Mid-Atlantic,
and Southeast regions under diverse weather conditions and were found
to be successful. Although NMFS tested Danforth-style anchors in
unfavorable weather conditions, fishermen should contact the NMFS Gear
Research Team if they experience problems. This final rule states that
gear has to be anchored at each end of the net string with an anchor
that has the holding power of at least a 22-lb (10.0-kg) Danforth-style
anchor, not necessarily a Danforth anchor. However, fishermen in the
Mid-Atlantic and Southeast do not have an anchoring requirement unless
they return to port without their gear. Additionally, NMFS is approving
a weak link anchoring option for gillnet fisherman within 300 yards
(274.3 m or 900 ft) of the beach in North Carolina to alleviate safety
issues in this area. NMFS gear specialists are available to consult on
these issues and to provide suggestions on how to comply with this
requirement. In response to any safety risks posed by weak links, gear
research studies that involved pulling a string of nets in the Gulf of
Maine in up to 45 knots (51.8 mi/hr or 83.3 km/hr) of wind in 100
fathoms (182.9 m or 600 ft) of water and utilizing 1,100-lb (272.4-kg)
weak links resulted in no failures. Thus, NMFS believes that it is
unlikely that the weak links in the gillnets would break during fishing
operations. The NMFS Gear Research Team will continue to investigate
weak links and various anchoring systems. Regarding safety issues
related to sinking line, see response to Comment 128.
Comment 233: Two commenters do not support an 1,100-lb (499-kg)
weak link for driftnets fished at night. They state that nets are 50-60
ft (15.2-18.3 m) deep, are not strong enough, catch fish like bluefish
and albacore, and can break easily and create ghost gear if weak links
are required. The fishery is from May to July. They state that there
has been observer coverage the last 4 yrs (36 trips) and no
entanglements were observed.
Response: NMFS is not implementing the proposed weak link
requirement for tended driftnet gear at this time due to potential
safety issues that were raised. Thus, NMFS believes further research on
this fishery, and specifically testing weak links in drift gillnet
gear, is needed before weak links should be required. NMFS will conduct
research in this fishery and discuss whether additional requirements
are warranted with the ALWTRT. NMFS acknowledges that few interactions
between large whales and commercial fisheries have been observed and
recorded by NMFS observers. These are rare events; however, they are
occurring at a rate unsustainable for the large whale populations
covered by the ALWTRP.
Comment 234: One commenter encouraged NMFS to require 600-lb
(272.2-kg) weak links on all flotation devices attached to the buoy
line of driftnet gear.
Response: Driftnet gear will have requirements under this final
rule; however, buoy line weak links will not be required. NMFS will
discuss whether additional restrictions are warranted for the driftnet
fishery with the ALWTRT.
Comment 235: Several commenters were concerned about the current
requirement that driftnets be attached to the boat at all times at
night. The commenters stated that certain types of driftnets used in
the Mid-Atlantic region would not fish properly if the net is
constantly attached to the boat.
Response: Presently, this requirement applies in the Mid-Atlantic
from December to March under the ALWTRP. This final rule extends this
requirement from September to May. NMFS will raise this issue for
further discussion with the ALWTRT at future meetings. However, at this
time, NMFS is not aware of driftnet fisheries that release the net from
the vessel at night.

Comments Specific to Certain Fisheries/Additional Fisheries Under the
ALWTRP

Comment 236: One commenter states that testing is needed on the
beach seine fishery, which is a selective type of fishing.
Response: At this time, NMFS is not regulating gillnets that are
anchored to the beach and subsequently hauled onto the beach to
retrieve the catch. This fishing technique is known to occur on the
beaches of North Carolina. NMFS will be discussing what the appropriate
management measures for this unique fishery should be with the ALWTRT
at a future meeting. In the meantime, NMFS will conduct outreach and
research on this fishery to support future discussions with the ALWTRT.
NMFS will be coordinating with the North Carolina Department of Marine
Fisheries to revise the definition for beach-based gear to help ensure
landings are reported accurately for beach-based gear versus gillnets,
among other issues.
Comment 237: Several commenters state that recreational fisheries
are currently not covered under the plan and should be regulated under
the ALWTRP and, in some areas, such as southern New England, they
comprise a great deal of fixed gear. One commenter states that all
fixed gear, whether it be from recreational or commercial fisheries,
should be regulated similarly.
Response: NMFS appreciates the concerns raised by the commenter and
reiterates that NMFS currently issues regulations to reduce marine
mammal serious injuries and mortalities during commercial fishing
operations as mandated by MMPA section 118. The MMPA does not currently
authorize the Secretary to address marine mammal bycatch from non-
commercial fisheries. However, recreational fishers that take marine
mammals are in violation of the MMPA prohibition against taking marine
mammals. NMFS has created brochures designed to inform recreational
fishermen about protected species conservation.
Comment 238: One commenter requested that NMFS consider regulations
that prohibit recreational boats from leaving vessel anchoring systems
to occupy a fishing spot without actually fishing there. The commenter
believes recreational vessels should be prohibited from tying up to
fixed gear high flyers because it is doubtful that a 1,500-lb (680.4-
kg) weak link would hold a recreational vessel. The commenter believes
this practice increases gear loss in the Mid-Atlantic.
Response: See response to Comment 237 for legal authorization to
regulate recreational fisheries. See also response to Comment 190
regarding vessels tying onto other vessels' line. It is unlawful,
however, for any person to steal or attempt to steal or to negligently
and without authorization remove, damage, or tamper with fishing gear
owned by another person located in the EEZ.
Comment 239: Several commenters urged NMFS to investigate emerging
fisheries (e.g., whiting fishery and octopus fishery in Florida) that
could use fishing gear that poses a threat to whales.
Response: NMFS currently publishes the Atlantic Ocean, Gulf of
Mexico, and Caribbean Category I & II List of Fisheries under the
Marine Mammal Authorization Program (MMAP) and includes both state and
Federal waters. In addition to the current list of fisheries managed by
NMFS, any new or emerging fishery operating in Federal

[[Page 57148]]

waters that are federally managed is subject to section 7 consultation
under the ESA. NMFS also works closely with the fishing industry, state
management agencies and any interested partner as part of the ALWTRT to
understand any new and emerging fisheries that may present a risk to
large whales.
Comment 240: One commenter understands incorporating other
fisheries in addition to those already subject to the ALWTRP, but pot
fisheries such as scup, black sea bass, and conch occur early summer to
fall, and the commenter believes right whales are unlikely to reside in
waters where and when this gear is fished. The commenter requested that
NMFS examine sightings and exempt Rhode Island state waters. Another
commenter wonders about risk reduction from adding in smaller fisheries
like black sea bass and scup. The commenter believed that the risk
reduction may be minimal and duplicative.
Response: NMFS established the areas and seasons being implemented
in this final rule by analyzing databases that included right,
humpback, and fin whale sightings. The areas included in the final rule
are, amongst other factors, those where documented large whale
sightings are common. NMFS believes that the final rule has an
appropriate suite of conservation measures to minimize entanglements
resulting in serious injury or mortality to large whales.
It is true that few scup and black sea bass vessels operate
relative to other trap/pot fisheries, such as the lobster fishery.
However, over 400 vessels are permitted for black sea bass trap/pot in
the northern fishery and over 300 vessels are permitted for scup trap/
pot. Harvest data also suggest that southern vessels seek black sea
bass as a principal or secondary target species. Therefore, the amount
of gear associated with these fisheries is significant. The addition of
these fisheries to the ALWTRP is equitable given that the gear and
geographic distribution of effort are similar to the lobster fishery.
Comment 241: One commenter believes that risk reduction is greatest
from adding in the hagfish fishery. Also, the commenter states that
other fisheries added in do not have the same amount of effort, but
that adding them should provide some benefit.
Response: The available data do not allow NMFS to characterize
definitively the risk (or risk reduction) associated with individual
fisheries, particularly smaller fisheries such as hagfish for which
permit data are lacking. New fisheries are being added in to address
their contribution to entanglement risk, and because of the similarity
between their gear and the gear of currently regulated fisheries.
Comment 242: Some commenters believed that traps for black sea bass
and snapper in the Mid-Atlantic region should be exempt from the
regulations since these traps are usually hauled to port every night
and therefore cause a minimal risk of whale entanglement.
Response: NMFS recognizes that any line in the ocean poses some
risk of entanglement and believes that this final rule has an
appropriate combination of conservation measures to minimize
entanglements resulting in serious injury or mortality to large whales.
Comment 243: When implementing this final rule, one commenter asked
NMFS to consider local New Jersey fishing practices and regional
fishery conditions. For example, the commenter stated that many vessels
are from the same port, there are no more than 30 vessels, and all
vessels fish in close proximity to each other. The commenter also
stated that there is significant communication among vessel operators
if whales are present.
Response: NMFS recognizes that there are regional issues that
influence fishing techniques. This final rule represents a broad-based
management scheme; however, regional differences were considered when
developing the final rule in consultation with the ALWTRT, which has
members from Regional FMCs, coastal state fisheries that interact with
large whale species or stocks protected under the ALWTRP, interstate
fisheries commissions, academic and scientific organizations,
environmental groups, and other interested stakeholders. NMFS believes
that the final rule has an appropriate suite of conservation measures
to minimize entanglements resulting in serious injury and mortality to
large whales. NMFS will continue to discuss regional differences with
the ALWTRT when considering future management measures.
Comment 244: One commenter stated that there are only two full time
pot fishermen in Virginia Beach and two in Chincoteague. Unless there
is a problem in the area, the fishermen should not be economically
impacted, especially since the commenter states there are no whales in
the area. Until there is more data showing that the mid-Atlantic is an
important area for whales, regulations should not change.
Response: The ALWTRP was developed to reduce the level of serious
injury and mortality of North Atlantic right, humpback, and fin whales.
NMFS data indicate that there have been multiple sightings of right
whales in the nearshore area of the Delmarva Peninsula (mostly between
March-May), and humpback and fin whales are also present in the area
seasonally. Thus, NMFS believes that action is appropriate in this
area. Fixed gear fisheries have been documented to entangle large
whales and the location where the gear was deployed is not always
known. Based on NMFS gear analysis reports, between 1997 and 2003 there
were 36 confirmed entanglements between large whales and pot fishery
gear. Also see response to Comment 243 regarding regional differences.
Comment 245: Numerous commenters objected to the proposed gillnet
regulations for North Carolina fisheries. A few commenters stated that
the fishery in North Carolina is different than that farther north. One
commenter stated that a 22-lb (10.0-kg) Danforth anchor is not needed
in North Carolina, as no whales have been sighted close to the beach.
Another commenter stated that the 22-lb (10.0-kg) anchors should not be
required inside 3 nautical miles (5.6 km). Instead of the proposed
regulations, several commenters recommend that North Carolina fisheries
that target spot in the fall and sea mullet and weakfish in the spring
and operate out to 300 yards (274.3 m or 900 ft) be allowed to use dead
weights on the inshore end and anchors less than 22-lb (10.0-kg)
Danforths on the offshore end, and allow 600-lb (272.2-kg) weak links.
Commenters state that these changes are necessary for the following
reasons: (1) the nets are short (150-200 yards (137.2 m-182.9 m or 450
ft-600 ft)) with small webbing (< 3 in. (0.1 m) stretched); (2) the nets
are fished close to the beach using boats 16-25 ft (4.9-7.6 m); (3) the
nets are set late in evening and fished in early morning; and (4) there
are safety issues with requiring any type of anchor on the inshore end.
Response: NMFS agrees that an additional anchoring and weak link
option is appropriate for vessels operating within 300 yards (274.3 m
or 900 ft) of the beach in North Carolina. The Mid/South Atlantic
ALWTRT Subgroup agreed by consensus to an optional configuration for
these fisheries. The gear requirements for gillnet gear set within 300
yards (274.3 m or 900 ft) of the coast in North Carolina will have an
optional configuration: five or more weak links per net panel,
depending on panel length, with a breaking strength no greater than 600
lbs (272.2 kg), to be anchored with the holding power of at least an 8-
lb (3.6-kg) Danforth-style anchor on the offshore end of the string

[[Page 57149]]

and a 31-lb (14.1-kg) dead weight on the inshore end of the net string.
NMFS believes that the gear modifications required under the ALWTRP
do not present significant additional dangers above those of normal
fishing practices. However, NMFS will continue to monitor this
situation through discussions with industry and the ALWTRT.
NMFS disagrees with the comment that there have been no whales seen
close to the beach in North Carolina. Sightings data in the NARW
Sightings Database show that there have been numerous right whale
sightings throughout the Mid-Atlantic within 1 nautical mile (1.9 km)
of the beach. Further, of 413 Mid-Atlantic right whale sightings in the
NARW Sightings Database, over 200 were within 5 nautical miles (9.3 km)
of the beach.
Comment 246: Many commenters expressed a concern for safety with
the proposed gillnet regulations in North Carolina. Several commenters
stated that the regulations would have the potential for loss of life
and gear. One commenter stated that dead weights are needed in case
there is increased wind or rough surf, so the net can be pulled into
safer waters for retrieval (tough to retrieve an anchor in these
conditions). Fishermen are typically within 200 yards (182.9 m or 600
ft) of the surf zone. The commenter stated that, if the proposed
requirement is implemented, fishermen may stop fishing, leave their
nets in the water until surf conditions subside, and risk losing gear
and/or catch. One commenter states fishermen may also be forced to
ignore the safety hazards and retrieve the anchor from rough water. A
few commenters state that the 22-lb (10.0-kg) Danforth anchor on the
inshore end is a safety risk because it is impossible to remove in the
surf zone. However, they state that a 22-lb (10.0-kg) Danforth anchor
can be used offshore at 200 yards (182.9 m or 600 ft).
Response: See response to Comment 245.
Comment 247: One commenter believes that the 22-lb (10.0-kg)
Danforth anchor requirement is a problem on the inshore end of the
string for North Carolina and Virginia, where fishing occurs for sea
mullet and pan trout in the spring. However, the commenter states that
a dead weight would be okay to use.
Response: See response to Comment 245. This final rule does not
contain an optional anchoring configuration within 300 yards (274.3 m
or 900 ft) of the beach in Virginia. However, NMFS will discuss whether
this option should be extended to other areas with the ALWTRT at the
next meeting.
Comment 248: One commenter stated that a 13-lb (5.9-kg) Danforth
anchor is used with a 3-foot (0.9-m) chain or 25-lb (11.3-kg) Navy
anchor on the offshore end and 40-lb (18.1-kg) lead weights on the
inshore end. The commenter further stated that the net can get dragged
offshore if conditions are bad. The commenter would be willing to use a
22-lb (10.0-kg) Danforth anchor on the offshore end along with weak
links to make his gear whale-safe.
Response: See responses to Comments 245 and 247.
Comment 249: One commenter believes that the 22-lb (10.0-kg)
Danforth anchor provision is a problem both inshore and offshore.
According to the commenter, especially in September, fishermen fish
close to the beach and haul from the bow, and pulling that anchor could
cause the boat to capsize in small waves. The commenter recommends
using a dead weight inshore and an 8-lb (3.6-kg) Danforth anchor
offshore.
Response: See response to Comment 245.
Comment 250: One commenter suggested that NMFS not change the
seasonal window from December-March 31 to September 1-May 31. If NMFS
changes the time period, the commenter requested that the inshore small
mesh fishery (< 5 in (0.1 m), 300 yd (274.3 m or 900 ft) max. set) use a
dead weight inshore and an 8-lb (3.6-kg) Danforth anchor offshore end
and 600-lb (272.2-kg) weak links rather than 1,100 lb (499 kg) weak
links.
Response: NMFS has analyzed the NARW Sightings Database through
early 2003, supplemented by additional data on humpback and fin whale
sightings, including both opportunistic and systematic survey data. The
associated time frames of conservation measures included in this final
rule are times where documented large whale sightings primarily occur.
Thus, NMFS believes the September 1-March 31 window is appropriate for
the Mid-Atlantic.
With respect to the use of various anchoring systems, please see
responses to Comments 245 and 247.
Comment 251: One commenter has a problem fishing anytime or
anywhere using a 22-lb (10.0-kg) anchor. The commenter states that
smaller boats do not have enough room for the anchors and it is unsafe
to have them. The commenter supports using a 13-lb (5.9-kg) anchor
instead.
Response: NMFS agrees and has changed the anchoring requirements
for smaller vessels operating within 300 yards (900 ft or 274.3 m) of
the shoreline in North Carolina [see Changes From the Proposed Rule
section]. See responses to Comments 245 and 247.
Comment 252: One commenter states that the proposed regulatory
actions, if not modified, would be inconsistent with enforceable North
Carolina Administrative Code 15 A NCAC 07H.0207 and will have an effect
on Public Trust Areas and Estuarine Waters. The commenter states that,
if the proposed measures are not modified, they would adversely affect
the public's ability to conduct recreational and/or commercial fishing.
The commenter supports DEIS Alternative 3 conditioned on modifications
(below), concurrent with North Carolina's CZMA program. North Carolina
proposes that the fishing season and time period required for the Mid/
South Atlantic region remain unchanged. If the time period is changed,
the state believes that an alternative configuration be considered as
the expansion of the gear restricted period and the requirement for
fishermen to use Danforth-style anchors during this period may create
safety hazards for coastal fishermen setting nets in the coastal zone
during the early fall/late spring. The State also requests that NMFS
reconsider the mandatory use of sinking and/or neutrally buoyant line
(and/or offer low cost alternatives) and extend the effective date to
January 1, 2010, to reduce potential economic hardship and increase the
time available to replace current gear. Finally, the State does not
support the alternative marking system for fishermen who use gear in
both Mid-Atlantic and Northeast waters, believing that this system
would cause a financial burden on fishermen as they would have to buy
another set of buoy lines for this gear. The State instead proposes a
unique, individual marking system like the one currently being
evaluated by Dr. Harper with the Virginia Sea Grant Marine Advisory
Program. If these conditions are not met, then the State would object
to the proposed rule.
Response: NMFS based the components of the final rule on numerous
discussions with the ALWTRT. NMFS believes that the final rule has an
appropriate combination of conservation measures to minimize
entanglements resulting in serious injury and mortality to large
whales.
Through this action, NMFS will finalize an expanded season in the
mid-Atlantic when ALWTRP requirements are effective (see response to
Comment 151). Also, see the response to Comment 245 for gear
requirements, anchoring options and safety considerations. With respect
to the implementation schedule

[[Page 57150]]

for the groundline requirements, see response to Comment 118.
NMFS reiterates that the gear marking requirements in this final
rule only require buoy lines to utilize one 4-inch (10.2-cm) colored
mark midway on the buoy line. A possible option for meeting this
requirement is weaving the appropriate color marking into the buoy
line. NMFS will continue to discuss gear marking strategies with the
ALWTRT and support research and development of promising marking
technologies.
Comment 253: One commenter said that there is no problem with whale
interaction and gillnet gear off the North Carolina coast. Several
commenters wanted to know if the 1,100-lb (499.0-kg) weak link has been
tested off North Carolina in fisheries where they fish from 5 fathoms
(9.1 m or 30 ft) to 70 fathoms (128 m or 420 ft) and questioned what
the effects are on the nets. The commenter believes that their
fisheries are being grouped with others, when one size does not fit
all.
Response: While it is often difficult to identify the specific gear
type involved in an entanglement, NMFS has evidence that fixed gear
types, such as gillnets, have entangled large whales. Thus, it is
necessary to regulate all fisheries that use this gear to ensure
protection of whales. Based on NMFS gear analysis reports from 1997 to
2003, there were 23 confirmed entanglements preliminarily attributed to
gillnet gear; these events involved 2 right whales, 18 humpback whales,
2 fin whales, and 1 minke whale. Of those 23, 6 were entanglements
involving gillnet gear that were first sighted off the coast of North
Carolina.
Testing of weak links has occurred and continues to be conducted by
NMFS gear specialists and NMFS believes that weak links are a valuable
tool to minimize risk to large whales.
Comment 254: One commenter provided NMFS with a description of the
North Carolina black sea bass fishery. Specifically, North Carolina
fishers use smaller pots than those from Virginia northward;
approximately half of the NC fishers use groundline and fish overnight
sets; the rest use singles, fewer pots, and do not leave them in the
water overnight. Further, depending on the number of pots, fishers will
fish up to 3 times a day, usually using short groundlines (< 30 ft (9.1
m)). The commenter suggested that NMFS consider requiring North
Carolina black sea bass fishermen to use lower profile lines, which
could be created at relatively low cost by weaving lead into poly
lines, and would keep lines approximately 2 ft (0.6 m) off the bottom.
Response: The gear requirements in this final rule state that Mid-
Atlantic pot fishery gear, including black sea bass gear is regulated
similar to lobster trap gear, and is subject to sinking and/or
neutrally buoyant groundline requirements 12 months after publication
of this final rule. See the response to Comment 158 with regard to low
profile line, and the response to Comments 243 and 255 with regard to
regional issues.
Comment 255: One commenter was concerned about sinking line between
pots. The commenter said that the bass pot fishery in the Mid-Atlantic
and the lobster pot fishery in the northeast (pots 100 feet (30.5 m)
apart) are very different. The commenter said that, down south, they
fish on bottom structures with pots 10-12 feet (3.0-3.7 m) apart with 8
pots per buoy.
Response: See response to Comment 243 regarding regional issues.
Floating line between traps has been implicated in large whale
entanglements; NMFS has evidence that establishes the risk associated
with this gear configuration. Underwater video footage of typical
lobster gear with floating groundline shows that it forms large loops
in the water column between traps. Similar underwater video footage of
neutrally buoyant line between traps indicated that it did not have the
same vertical profile as floating line; rather, it was located on or
near the bottom, thus reducing the risk of entangling a large whale.
Therefore, NMFS expects that by eliminating most floating line and
requiring sinking and/or neutrally buoyant groundline in the pot
fisheries will remove a large percentage of the line in the water
column.
Comment 256: A few commenters agreed that the red crab fishery
should be exempt from regulations at depths greater than 280 fathoms
(512.1 m or 1,680 ft).
Response: NMFS appreciates the comment and the support for the
final rule.
Comment 257: Several commenters raised a habitat issue with using
sinking/neutrally buoyant groundline. Specifically, the commenters
stated that, in the snapper/grouper fishery, there are regulations
prohibiting roller-rig trawls and traps for any species other than
black sea bass to reduce habitat impacts. Additionally, there are
closed areas to protect Oculina coral.
Response: See response to Comment 128.
Comment 258: One commenter stated that the hagfish fishery is much
smaller than the lobster fishery and therefore poses less risk than
lobster gear.
Response: NMFS acknowledges that the hagfish fishery currently
represents a small percentage of fixed gear compared to the lobster
fishery. Although the hagfish fishery is a relatively smaller fishery,
its gear has been documented to have entangled large whales.
Comment 259: One commenter stated that when the Great South Channel
is closed from April 1-June 30, fishers move around to areas closed to
draggers, which means they go to the Georges Bank Closure in May and
then Closed Area 1 in June. The commenter further states that hagfish
are abundant during these times in these areas, possibly the most
productive months of the year. The commenter believes that closing this
area at these times would have devastating effects on this fishery.
Response: NMFS acknowledges and appreciates the concerns raised by
the commenter. NMFS will treat other pot fisheries similar to the
lobster fishery in this final rule, so the hagfish fishery will be
subject to regulations to reduce the risk to endangered and threatened
large whale stocks.
Comment 260: One commenter states that, by adding the hagfish
fishery to the group of fisheries subject to the ALWTRP, it would be
regulated like the lobster fishery. The commenter states there are
differences that should be considered, such as weight of the traps
(300-500 lbs. (136.1-226.8 kg)) when full, frequency of hauling the
gear (every 12-18 hours), consideration of historically fished areas
(like Great South Channel critical habitat), and the size of the
hagfish fishery (smaller than the lobster fishery).
Response: NMFS believes it is appropriate to regulate the hagfish
fishery similar to the lobster trap/pot fishery under the ALWTRP. This
includes similar weak link requirements, as well as time-area
restrictions (e.g., Great South Channel). NMFS believes the differences
between the hagfish and lobster trap/pot fishery stated by the
commenter would not justify having the hagfish fishery being treated
differently.
Comment 261: One commenter requested NMFS limit entry into the
shark gillnet fishery to vessels with landing history using both sink
gillnet and driftnets. The commenter suggested that NMFS should
distinguish between driftnets, strike nets, and small mesh sink nets.
In addition, the commenter asked NMFS to define the relationship of
sink gillnets with anchors on ends and shallow meshes to drifting deep
gillnets.

[[Page 57151]]

Response: Limiting the number of fishermen in a fishery, if
resulting in reduced fishing effort, may provide conservation benefits
to large whales. However, such a management measure is beyond the scope
of this ALWTRP final rule. NMFS may consider such action in future
rulemaking regarding authorized gears and permit reform for Highly
Migratory Species (HMS) fisheries. The current definitions in 50 CFR
229.2 explain the difference between anchored (e.g., sink gillnet) and
driftnet gear.
Comment 262: Several shark fishermen in the Southeast said they
lost 3 fishing days due to right whales being in the area and fishermen
moving their gear. The commenter wanted this to be acknowledged by
NMFS.
Response: NMFS appreciates the efforts of these fishermen and their
participation in helping to conserve highly endangered right whales.
See response to Comment 274.

Comments on Enforcement

Comment 263: Several commenters stress the need for strong
enforcement and believe there is no mechanism or system (e.g.,
enforcement strategy) or timeframe for handling violations or
monitoring compliance in the proposed rule. One commenter states that
the existing regulations are under-enforced, and that adequate
enforcement of existing regulations would protect whales sufficiently.
Response: Enforcement of the ALWTRP regulations is essential to
their success. Current regulations are being enforced and increased
enforcement would likely lead to increased compliance. The mechanism
for enforcement is through a partnership between NMFS Office of Law
Enforcement (OLE), the USCG, and state enforcement entities. Monitoring
compliance levels at sea is challenging because of the complexity and
geographic expanse of the fishing activity subject to the ALWRTP. NMFS'
strategy is to partner with state entities as many states have
personnel and vessel resources available for marine resources
compliance monitoring. These partnerships have yielded some excellent
results. For example, a short duration random survey of lobster gear
was conducted by the Maine Marine Patrol along the coast of Maine in
2004. This 30 day survey demonstrated a 98-percent compliance rate with
ALWTRP requirements.
Comment 264: Commenters stated that NMFS needs some kind of
enforcement where either states or the federal government is able to
lift these nets and make sure they are in compliance, because every
time NMFS writes a rule, the commenter believes that the honest
fishermen are being punished.
Response: NMFS is aware of the desire to haul gear to monitor
compliance with ALWTRP requirements. Federal funds have been made
available to state enforcement entities. Some of these funds have been
utilized to purchase or lease/rent vessels capable of hauling trap/pot
gear. Law enforcement also can board a vessel and observe as the
operator retrieves gear to monitor compliance with gear requirements.
NMFS seeks to identify non-compliant fishermen in its enforcement
efforts.
Comment 265: One commenter suggested developing an enforcement plan
that outlines agencies with authority, the role of each agency with
authority, and a letter of agreement among authorities for timely and
efficient enforcement.
Response: The authority and the role of individual agencies with
respect to species covered by the ALWTRP is determined directly by the
ESA and the MMPA. The USCG provides the resources, personnel, and
expertise for enforcement at sea while NMFS provides case development
and prosecution. Coastal states have assumed an increased role in
enforcement at sea.
Comment 266: One commenter requested that NMFS mandate new
reporting programs where fishermen report in real-time where they are
placing fishing gear and where the gear is being lost.
Response: NMFS is concerned about lost gear and collects data on
losses. For example, in the Federal lobster fishery, data are collected
about losses that exceed the allocated gear loss allowance. The fishing
gear types that the ALWTRP regulates are predominantly lobster trap and
multi species sink gillnet. Federal lobster and gillnet fishery
reporting requirements collect some location information through vessel
trip reports. State lobster fishery management plans monitor effort by
distinct fishing areas under an interstate fishery management plan.
Neither of these processes is real time as suggested by the commenter.
As of November 22, 2006, all limited access Northeast multi-species
vessels (which would include sink gillnet activities) are required to
use real time reporting of vessel location through the vessel
monitoring system (VMS). VMS is being considered for the entire
groundfish fleet, which would include sink gillnet activities, under
Framework 42. VMS is also utilized in the shark gillnet fishery.
Presently, there is no VMS requirement for lobster trap/pot gear.
The requirements to tag lobster traps and some gillnet fishing
activities allows NMFS to identify individual traps and some net panels
by discreet identification numbers.
Comment 267: One commenter acknowledged and encouraged NMFS' plans
to convene an ALWTRT Subgroup on monitoring.
Response: A Status Report Review Subcommittee, which will address
monitoring, has been established as an outcome of the April 2005 ALWTRT
Meeting.
Comment 268: One commenter stated a perceived lack of enforcement
in the Gulf of Maine, which was brought up at the last NEFMC meeting.
The commenter stated that the NEFMC was briefed on NMFS' enforcement
efforts and cooperation with the states.
Response: NMFS has increased enforcement of ALWTRP regulations in
the Gulf of Maine, George's Bank, and Southern New England. This has
been done through USCG efforts and through state-Federal partnerships
over the past 3 years. The states of Maine, Massachusetts, and Rhode
Island have received funds to conduct at sea enforcement of ALWTRP
regulations.
Comment 269: One commenter stated that NMFS should address the fact
that the State of Maine has apparently not mandated compliance with the
protocols used under the Atlantic Large Whale Disentanglement Network.
Response: The State of Maine has developed a conservation program
that assumes a larger role, relative to many states along the eastern
seaboard, in the disentanglement of large whales. NMFS has worked
closely with the state on the development and evolution of the
conservation plan and believes Maine is operating in accordance with
the protocols.
Comment 270: One commenter believed year-round requirements in the
EEZ would facilitate enforcement, whereas a three month exemption in
the Mid-Atlantic (as in Alternative 3) would be problematic for
enforcement.
Response: The enforcement community has experience with a large
number and variety of time-area closures and gear restricted areas in
the Mid-Atlantic as well as the Northeast. NMFS believes the 3-month
period in question, versus year round requirements, may not be optimum
in terms of enforcement but has been selected to reduce regulatory
impacts on the fishing industry during periods when whales are
infrequently sighted in that area.

[[Page 57152]]

Comment 271: One commenter said that the Commonwealth of
Massachusetts will prosecute fishermen if rope is found on a whale.
Response: The Commonwealth of Massachusetts has a long history with
whales and disentanglement given the unique characteristics of Cape Cod
Bay and Massachusetts state waters. The primary focus of removing rope
from entangled whales is to reduce the likelihood of serious injury or
mortality. The secondary focus of removing ropes from whales is to
learn more about how whales become entangled. This information may aid
in the design of gear which can reduce the likelihood of future serious
injury or mortality. Fishermen are an important resource in the study
and development of gear modifications. NMFS is not aware that any
fisherman has been prosecuted for the entanglement of a whale by the
Commonwealth of Massachusetts.
Comment 272: Two commenters stated that enforcement will be
difficult between commercial and recreational fishermen and an
exemption line may increase resentment and non-compliance. One comment
stated that it will be hard to distinguish between commercial and
recreational gear at sea.
Response: The ALWTRP does not regulate recreational fishermen. Some
states, such as the Commonwealth of Massachusetts, have regulations for
the protection of right whales that apply to some of the recreational
and commercial fisheries under their jurisdiction. Massachusetts
prohibits recreational lobster traps in Cape Cod Bay during certain
times of the year and differentiates commercial from recreational gear
through a gear marking scheme. See response to Comment 237 for
information on the management for marine mammal interactions with
recreational fisheries.
Comment 273: One commenter expressed concern with the difficulty of
enforcing weak link breaking strengths and 30-day soak time limits.
Response: NMFS recognized the difficulty in determining breaking
strengths of different types of weak links when the plan was first
developed. Industry outreach has been conducted demonstrating a variety
of weak link types and their associated breaking strengths. Training on
ALWTRP gear requirements is provided to the USCG Fisheries Training
Centers and state enforcement entities. Several manufacturers have
developed commercially available weak links of various breaking
strengths which can be purchased at fishing supply stores. These weak
links typically have the breaking strength shown in raised letters on
the actual weak links. NMFS also has fishing industry outreach
specialists. These individuals have experience with fishing gear and
are available to evaluate weak links for the fishing industry and law
enforcement agencies. Thirty-day soak limits have been enforced.
Enforcement actions based on the 30-day soak time limit were taken in
10 cases in 2005.
Comment 274: One commenter states that there was an issue in the
southeast regulations with shark net gear that say the gear has to be
removed if right whales, humpbacks, or finbacks are located within 3
nautical miles (5.6 km). However, it is not clear to the commenter how
that would be accomplished or who would identify the whales being
within 3 nautical miles (5.6 km) of the gear.
Response: NMFS, consistent with recommendations from the ALWTRT,
believes fishermen are motivated to avoid potential gear conflicts with
whales. However, other measures are in place to aid fishermen in
preventing potential whale/gear interactions. In the Southeast, an
Early Warning System (EWS) is maintained by the Southeast U.S. Right
Whale Recovery Plan Implementation Team (SEIT) and its partners. Near
real-time data, including the number of whales, location (latitude and
longitude) of whales, and direction of their travel, are transmitted to
numerous interested stakeholders such as shipping agents and commercial
mariners, including fishermen, via pagers and email notifications.
Information is also received by operation dispatchers, who then relay
the details to their vessels. General locations for animals are also
broadcast over Marine VHF. NMFS believes that these measures relay
critical whale information to fishermen, but will continue to work with
the SEIT and its partners, as well as fishermen, to facilitate and
improve the distribution of sightings information.
Comment 275: One commenter states that VMS is not 100-percent
reliable, there are battery failures and mechanical failures. This
commenter also believes that it costs a lot of money for nothing and
that some fishermen have VMS that may not need them.
Response: NMFS believes VMS is appropriate to substitute for 100-
percent observer coverage in the Southeast U.S. Monitoring Area as
defined in this final rule. The system offers NMFS the ability to
monitor vessel timing and location across management boundaries,
enables effective, coordinated dockside or at-sea inspections, and
facilitates coordination with other enforcement agencies. Although
self-installation of VMS units has been permitted, subsequent problems
have been noted (e.g., insufficient power supply and improper wiring).
NMFS encourages fishermen to have units installed by the professionals.
Power must be consistent to allow each unit to report properly, and
NMFS suggests that fishermen maintain a backup battery for this reason.
Once battery power has been drained, the unit will not send reports and
significant damage to it may occur. NMFS law enforcement and approved
vendors are improving unit models and pursuing alternatives to detect
battery power and stop reporting/power usage until the unit is fully
powered again. If units do malfunction, individuals should coordinate
with Southeast Enforcement VMS personnel. Otherwise, fishermen are
encouraged to have a vendor or electrician tend to the unit; vessel
operators are advised to not leave port until the unit is repaired, in
accordance with regulations.
Comment 276: One commenter said that several people in New Jersey
and other places would never run a shark gillnet south of Jacksonville,
but will be required to use mandatory VMS and was wondering if that was
the intent of the rule and asked whether NMFS was considering the issue
again and considering a change.
Response: Although monitoring shark fishermen off New Jersey and
surrounding areas was not the intent of the VMS requirement, in the
regulations for Highly Migratory Species (HMS), these data will allow
NMFS to obtain a better understanding of the shark fishery in this
area, including if fishermen move farther south into the Southeast U.S.
Monitoring Area. See Comment 275.
Comment 277: Several commenters said that although there are some
operational issues to consider regarding VMS, some commenters preferred
this over the observer requirement in the Southeast.
Response: NMFS agrees that VMS is appropriate for the Southeast
U.S. Monitoring Area as defined in this final rule, and will work with
fishermen to overcome operational issues. See Comment 275.
Comment 278: Several commenters stated that the Observer Program
(i.e., a fishery monitoring program where an observer goes to sea with
the fisherman) and VMS (i.e., an electronic vessel tracking system) are
duplicative. These commenters agreed that the VMS device is expensive
as well as difficult to install, activate, and maintain. One commenter
suggested that, in light of the problems associated with the VMS,
fishermen should not be liable if the

[[Page 57153]]

VMS device does not indicate whether it is functioning properly.
Response: NMFS disagrees that VMS and observer coverage are
duplicative, as each program serves a different purpose. The Observer
Program is intended and designed to collect fisheries-dependent
physical, biological, and economic data, which can then be used in
stock assessments and also verify logbooks; the program is not meant
for compliance monitoring. In contrast, VMS' primary purpose is the
monitoring and enforcement of time-area closure restrictions, as well
as gear compliance.
NMFS believes it is the responsibility of fishermen to make sure
that their VMS units are functioning properly. If units malfunction,
individuals should coordinate with Southeast Enforcement VMS personnel
or contact a vendor or electrician to tend to the unit; vessel
operators are advised to not leave port until the unit is functioning
properly. See Comment 275.

Comments on the Shipping Industry and/or Ship Strikes

Comment 279: Numerous commenters stated that NMFS needs to address
the shipping industry (e.g., tankers, freighters, large ships, and
ocean liners) and the Navy, as ship strikes are the leading cause of
serious injury and death to large whales (as opposed to just regulating
commercial fishermen). One commenter requested that NMFS address
shipping and cruise industry ship strikes before prohibiting floating
groundline.
Response: NMFS acknowledges and appreciates the commercial fishing
industry's involvement in the ALWTRT and the modifications already made
to reduce the risk of serious injury and mortality of large whales.
NMFS agrees that ship strikes and the need to mitigate the risks posed
by vessel traffic is also important to large whale conservation and
recovery. As such, NMFS is simultaneously pursuing other rulemaking
strategies and policy discussions to address the threat of ship strike.
The Northeast and Southeast Implementation Teams (NEIT/SEIT) for the
recovery of the North Atlantic right whale include representatives from
various Federal agencies, such as the Navy and the USCG, state
agencies, port authorities, and the shipping industry. Based on
information and recommendations provided by these groups, NMFS
developed and published a propose rule for right whale ship strike
reduction in the Federal Register (71 FR 36299, June 26, 2006). The
proposed rule presents regulatory measures that NMFS is considering to
reduce the risk of ship strike to right whales, such as speed
restrictions and vessel routing measures.
The proposed rule is one component of a suite of comprehensive
right whale ship strike reduction measures, which also includes
education and outreach to commercial and recreational mariners,
research on technologies that may help mariners avoid whales, a
comprehensive program of sighting advisories to mariners, section 7
consultations to address Federal vessel activities, and the development
of a Conservation Agreement with Canada.
As Federal agencies, under section 7 of the ESA, the branches of
the U.S. military are required to consult with NMFS (or U.S. Fish and
Wildlife Service) to ensure that their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of
critical habitat. Both the U.S. Navy and the USCG have undergone ESA
section 7 consultations on various activities that may affect large
whales. In addition, the U.S. Navy and USCG implement internal policies
regarding marine mammals, including marine mammal observer training,
restrictions on activities in protected areas and important habitats,
reporting of any dead or injured whales sighted and mandatory reporting
of any interactions with marine species.
NMFS recognizes both entanglement and ship strike as human-caused
sources of serious injury and mortality to large whales that need to be
addressed in order to recover these species. Floating groundline has
been identified as an entanglement risk to whales, and is therefore
being addressed in this final action.
Comment 280: Many commenters said that more should be done to
reduce the mortality of whales due to commercial and military ship
strikes. Commenters stated that NMFS has not found a solution to ship
strikes or entanglements and little has been done. Other commenters
believed that, though commercial and naval ships pose the greatest
threat to whales' existence, these ships continue to operate largely
unregulated. Several commenters believed that ship strikes occur more
often than previously thought.
Response: NMFS agrees that ship strikes are a source of mortality
to large whales that needs to be addressed in order to recover these
species. See response to Comment 279. NMFS acknowledges that historic
reports of ship strikes may not accurately represent the frequency of
ship strikes due to the lack of a central reporting mechanism. Although
current reporting practices and improved knowledge about the types of
wounds inflicted by ship strikes have improved understanding of ship
strikes, many ship strikes are still likely to go undetected or
unreported.
Comment 281: One commenter states that more whales are hurt by
ships outside three miles (5.6 km) than by rope and buoys used in
fishing operations.
Response: Because many ship strike and entanglement events are
unobserved at the time the incident actually occurred, it is difficult
to determine where whales are struck or become entangled. In addition,
many entanglement and ship strike events likely go undetected. As such,
it is difficult to draw conclusions about where these events occur and
whether ship strike or entanglement poses a greater threat to large
whale populations. NMFS recognizes both entanglement and ship strikes
as human-caused sources of serious injury and mortality to large whales
that need to be addressed in order to recover these species, and is
undertaking regulatory efforts to address both issues. See response to
Comment 279.
Comment 282: Two commenters stated that the LNG Terminal, which is
located in the summer feeding ground, will result in vessels going
through the feeding grounds, which is more dangerous than entanglement
risk. One of these commenters believes that it is wrong to put a
proposed LNG terminal into the Critical Habitat Area. The commenter
states that the big propellers on the patrol boats are more apt to kill
a whale then some fishing gear.
Response: While NMFS appreciates the concern raised, the current
action addresses the effects of entanglement in commercial fishing gear
on large whales. The effects of other marine resource uses, such as
commercial shipping and offshore LNG terminals, are being addressed
through other regulatory and management processes. LNG terminals are
licensed by other Federal agencies, which are subject to the
requirements of section 7 consultation under the ESA. See response to
Comment 279.
Comment 283: Another commenter mentioned that whales are beyond
Schoodic Ridge, west of Blue Nose Buoy, and in deep water. The
commenter has seen large vessels including a high speed ferry traveling
at 50 knots (92.6 km) through feeding whales. The commenter believes
that there should be regulations on ships, and does not understand why
lobstermen are singled out.

[[Page 57154]]

Response: NMFS agrees that ship strikes and the need to mitigate
risks posed by large, fast-moving vessels are important to large whale
conservation and recovery. As such, NMFS is pursuing other rulemaking
strategies and policy discussions to address the issue of ship strikes.
See response to Comment 279.
Comment 284: Some commenters stated that NMFS should address all
sources of endangered whale mortality. Many commenters were concerned
about the level of regulation on the fishing industry relative to other
causes of mortality like shipping and land based activities (e.g.,
water quality issues). One commenter pointed to those which endanger
whales by disposing of waste at sea as another example of an
unregulated group that is not reached by today's regulations. Some
commenters stated that all industries should share the regulatory
burden, yet some are unregulated (e.g., shipping and Canadian fishing
gear). Other commenters stated that NMFS should seek a comprehensive
whale protection strategy that takes other impacts into account
nationally and internationally to share the responsibility of
conservation efforts.
Response: NMFS realizes that other marine resource user groups are
affecting large whale populations, and NMFS will continue efforts to
reduce these impacts. NMFS is pursuing various regulatory and non-
regulatory strategies for reducing the impact of vessel collisions on
northern right whales. See response to Comment 279. Many ocean disposal
and discharge activities require permits issued by other Federal
agencies such as the U.S. Environmental Protection Agency and the U.S.
Army Corps of Engineers. Under section 7 of the ESA, any Federal agency
issuing such a permit must consult with NMFS (or U.S. Fish and Wildlife
Service) to ensure that the issuance of the permit is not likely to
jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of
critical habitat. Section 7 consultations often result in restrictions
and mitigation measures that are required of the permit applicant in
order to reduce impacts to endangered species.
NMFS also continues to participate in international fora that
address impacts to large whales. NMFS is continuing to work with
Canadian biologists and to support efforts to expand disentanglement
efforts in Canadian waters. NMFS will continue to work with the
government of Canada toward development of similar protective measures
from fishing operations for right whales in Canadian waters. NMFS has
also initiated discussions regarding an International Conservation
Agreement for right whales with Canada, which would include the impacts
of shipping on right whales. The Conservation Committee of the
International Whaling Commission (IWC) identified ship strike as a
priority item in the conservation agenda, and recently formed a ship
strikes working group to assess the level of threat caused by maritime
traffic worldwide and to examine policies that could be implemented to
mitigate the impact of ship strikes. The International Maritime
Organization (IMO) has reviewed and approved proposals to address the
impacts of shipping on marine mammals, including approval of the right
whale Mandatory Ship Reporting System in 1998 and the shifting of the
Bay of Fundy shipping lanes in Canada in 2003. In December 2006, the
IMO approved a proposal to shift the Boston Traffic Separation Scheme
to reduce the overlap between heavy shipping traffic and large whales.
International organizations such as the IWC and the International
Council on the Exploration of the Sea (ICES) are examining the effects
of ocean noise on marine mammals, including the noise generated by
shipping, oil drilling, and seismic exploration. NMFS convened the
first international symposium on shipping noise and marine mammals in
2003. All of these groups are considering strategies for managing
human-produced noise sources in the marine environment.
Many of NMFS' activities to promote the conservation and recovery
of large whales are directed by actions outlined in recovery plans
developed in accordance with the ESA. Recovery plans are designed to
provide comprehensive strategies for recovering endangered species.
Comment 285: Several commenters believe that the negative impacts
of the whale watch industry need to be assessed. One commenter said
that there is a problem with whale watching vessels getting too close
to whales.
Response: NMFS monitors the activities of the whale watch industry.
NMFS has developed a set of whale watching guidelines for the
Northeast, which outline appropriate speed limits and approach
distances to reduce the potential for harassment of whales. NMFS also
has a regulation prohibiting approaching closer than 500 yards (1500
ft, 457.2 m) to a right whale. NMFS conducts active outreach to whale
watch companies to encourage compliance with these guidelines. NMFS is
also working on a proposed rule to minimize the potential for future
serious injury and mortality of whales from whale watch vessels.
Comment 286: One commenter asked why NMFS is not attacking the real
problem, which the commenter said is cruise ships, ferries, tankers,
and whale watchers. The commenter said some vessels leave Bar Harbor
going 35 miles an hour (56.3 km/h), and he hears on the radio about the
whales they are seeing. The commenter said that these vessels could be
chasing whales into fishing gear.
Response: NMFS is currently pursuing a comprehensive strategy of
regulatory and non-regulatory measures to reduce the impact of shipping
on right whales. See response to Comment 279. Although it is possible
that a whale could become entangled in fishing gear while attempting to
escape an oncoming vessel, NMFS is not aware of such an event being
documented. Researchers continue to investigate the circumstances under
which whale/gear and whale/vessel interactions occur.

Comments on Gear Reduction

Comment 287: Two commenters referenced LMA 3 as an area where there
was a reduction in lobster traps being fished. One commenter urged NMFS
to consider the recent LMA 3 offshore historical qualification process
that reduced the number of offshore permits from 968 to 133 and the
number of traps from approximately 400,000 to 160,000. The other
commenter stated that in LMA 3 there has been a 40-percent reduction in
traps fished. The commenter stated that trap reduction is the most
valuable way to stop interaction with whales. Another commenter stated
that reducing the number of traps in an area, such as in LMA 3 will be
better than gear modifications and it will better help protect whales.
The Federal lobster management plan identifies and restricts the number
of fishermen able to fish offshore, and this smaller number of
fishermen will reduce their traps, buoylines, and loops. The commenter
estimated a nearly 50 percent reduction over the next five to seven
years. One commenter states that the overall amount of gear and fishing
effort will be reduced over the next couple of years. The commenter
states the number of lobstermen is declining from 3,000 to less than
150 and the amount of gear in the water will decline by more than 40
percent.
Response: NMFS acknowledges the effort reductions that are
occurring in LMA 3, and agrees that this should help reduce serious
injury and mortality of

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large whales. NMFS believes these effort reductions will be critical to
future discussions with the ALWTRT on how to reduce risk associated
with vertical line. However, NMFS believes reducing risk associated
with groundline through this final rule is appropriate even with the
effort reductions occurring offshore. Additionally, with this final
rule, NMFS intends to address all fishing gear that poses a risk to
large whales similarly.
Comment 288: One commenter states that the figures in the DEIS do
not reflect an additional two-year lobster gear reduction along with
continual passive reductions through a proposed trap transferability
plan recommended to the ASMFC. The commenter would like to see a trap
buyback to further reduce the number of traps to help whales and the
lobster fishery.
Response: The commenter is likely referring to Addenda IV and V to
the Lobster FMP. As discussed in Chapter 9 of the FEIS, Addendum IV as
initially proposed incorporated an accelerated trap reduction program
and the implementation of a transferable trap program in LMA 3 (among
other provisions). ASMFC deferred action on this proposal, opting
instead to address this issue under Addendum V. The approach originally
outlined in Addendum IV proposed an overall trap cap of 2,600 traps and
a two-tiered tax on the purchase of traps, with a higher tax applied
when the purchaser owns 2,100 traps or more. In response to concerns
raised at public hearings that a 2,600 trap cap may be too high, the
LMA 3 Lobster Conservation Management Team (LCMT) amended its original
proposal under Draft Addendum V. Addendum V proposed a cap of 2,200
traps and a two-tiered tax on the purchase of traps, with a higher tax
imposed when the purchaser owns 1,800 or more. Addendum V was approved
by the Board at the March 2004 Board meeting and went into effect in
2005.
NMFS and others have supported buybacks of groundline. See response
to Comment 93. Limiting the number of traps in a fishery, if resulting
in reduced fishing effort, may provide conservation benefits to large
whales. However, this management measure is beyond the scope of this
final rule. NMFS is pursuing measures such as trap effort reduction
through other rulemaking actions (e.g., 70 FR 24495, May 10, 2005).

Comments Regarding Canadian Gear/Fisheries

Comment 289: Several commenters said that Maine fishermen mark
balloons with fishermen's name, harbor name, and boat name. Commenters
stated that most balloons picked up that are not marked come from
Canada. Another commenter said that he fears being evicted from the
lobster grey area because Canadian and U.S. gear is being fished side
by side and one would not be able to tell whose gear is responsible for
potential entanglements.
Response: NMFS disagrees with the commenters' claim that most
recovered polyballs or ``balloons'' that are not marked come from
Canada. Further, NMFS notes that it is not revising the ALWTRP based on
the recovery of unmarked polyballs or gear that may have originated
from the grey area. The need for the revisions of the ALWTRP is the
continuing risk of serious injury and mortality of Atlantic large
whales due to entanglement in commercial fishing gear. NMFS considered
several factors when evaluating the entanglement information: (1) A
mortality or injury may involve multiple factors (e.g., whales that
have been both struck by a ship and entangled are not uncommon); (2)
the actual gear type/source is often uncertain; and (3) several types
of gear may be involved in a given reported entanglement. NMFS limits a
``serious injury'' designation to only those reports that offer
substantiated evidence that the injury is likely to lead to the whale's
death. Injuries that impede the whale's locomotion or feeding are not
considered serious injuries unless they are likely to be fatal in the
foreseeable future.
Comment 290: One commenter expressed concern over the lack of
Canadian take reduction efforts and gear modification requirements. The
commenter expressed concern that all entangled whales get counted
against U.S. fishermen.
Response: NMFS is issuing this final rule specifically to address
commercial fishery impacts from U.S. fisheries. NMFS acknowledges that
entanglements with fishing gear from Canadian fisheries may also cause
serious injury and mortality to large whales. NMFS is currently
addressing these threats through formal discussions with Canada. For
example, NMFS is working with representatives from the Canadian DFO to
develop and implement protective measures for right whales in Canadian
waters. The ALWTRP is designed to respond to the threats posed by
domestic fishing gear.
Comment 291: Several commenters state that NMFS should work more
closely with the Canadian Government to harmonize American and Canadian
fishery regulations. They state that Canadian fishing gear is a major
cause of whale entanglements that lead to injuries and mortalities.
Commenters encouraged NMFS to pursue parallel conservation measures
with the shipping industry and military vessels in the U.S. as well as
Canada. One commenter encouraged NMFS to work with the Canadian
Government through the Canadian Species at Risk Act for joint efforts
to protect right whales.
Response: Coordination between Canada and the U.S. concerning
transboundary marine mammal and other protected species has been
ongoing since mid-1990. In earlier years the coordinated efforts
focused on broader issues concerning Atlantic salmon, harbor porpoise,
and right whales. At that time, most of the issues regarding right
whales were secondary as both countries addressed other pressing
issues. Although both countries continued to work cooperatively on
right whale issues, limited resources prevented both countries from
meeting on a regular basis. However, in anticipation of the
implementation of SARA, the group was reconstituted in January 2003.
The focus of the group was still based on species-specific
conservation, but the charge for the working group was expanded to
include joint assessments, listing criteria, and recovery planning and
implementation in a broader sense to include all transboundary marine
mammal and protected species stocks (with the exception of Atlantic
salmon). The working group's primary efforts are toward right whale
recovery efforts. NMFS is continuing to work with the Canadian
Government to develop and implement protective measures for right
whales in Canadian waters. In addition, NMFS is working with Canadian
whale biologists and support teams to improve and expand
disentanglement efforts in Canadian waters.

Comments on the Number of Traps per Trawl

Comment 292: One commenter encourages more traps per buoy line
whenever possible. For areas in eastern Maine where sinking groundline
cannot be used, the commenter thinks reducing line by shifting to
longer trawls where possible would be a viable option. The commenter
recommends a limit on the number of traps per lobster trawls as an
emergency action. Another commenter opposes putting limits on the
number of traps per trawl. The commenter states that he cannot fish
more than 25 traps per trawl due to boat size.
Response: In this final rule, NMFS is maintaining the status quo
for the minimum number of traps/pots with a single buoy line in
specific management areas. Additionally, NMFS believes that

[[Page 57156]]

reducing profile of groundline along the east coast, including eastern
Maine, through this action is important to reduce the serious injury
and mortality of large whale due to incidental entanglement in
commercial fisheries. Options such as this for reducing risk associated
with vertical lines will be discussed with the ALWTRT at the next
meeting.
Comment 293: One commenter understands that NMFS is not proposing
to move nearshore requirements into inshore waters. The commenter
states that there should not be restrictions such as ``no single
traps'' or ``one buoy line for less than five trawls'' in inshore
waters. The commenter does not agree with nearshore regulations being
expanded into inshore waters.
Response: As the commenter stated, NMFS is managing inshore and
nearshore trap/pot waters differently under the plan. NMFS will be
discussing options for addressing risk associated with vertical line
with the ALWTRT at the next meeting, and will pass along the
commenter's concerns.

Comments on Vessel Anchoring Systems

Comment 294: Many commenters requested that NMFS investigate the
degree to which vessel anchoring systems pose a risk to whales. For
example, according to the commenter, in 2003, a humpback whale in
Stellwagen Bank National Marine Sanctuary was entangled in a small boat
anchoring system. Additionally, commenters stated that two humpback
whales were disentangled from anchors--one gillnet and one vessel
anchoring system. These commenters stated that NMFS does not consider
anchoring systems as a risk.
Response: Anchoring systems have been recognized by NMFS as a risk
to large whales and have been addressed by requiring sinking line on
lines leading from gillnets to the anchor. The anchoring systems of
small recreational vessels in pursuit of fin fish in areas like
Stellwagen Bank National Marine Sanctuary are not captured in the
ALWTRP process. See response to Comment 237 for information on the
management of marine mammal interactions with recreational fisheries.
Comment 295: One commenter states that NMFS should require all
vessel anchoring systems to be brought back to the dock and not left
unattended.
Response: NMFS is considering future rulemaking to address vertical
line and will be discussing these issues with the ALWTRT at the next
meeting. NMFS will discuss the practice of vessel anchoring at sea with
the ALWTRT at that time.

Comments on Research

Comment 296: One commenter states that research concerning right
whale behavior and its use of the water column is needed as there are
gaps in information and high priority needs.
Response: NMFS agrees that more research is needed on right whale
behavior and their use of the water column. To try to gather this
needed information, NMFS developed a number of right whale biological
needs priorities in support of the ALWTRP and included these in the
2006 NMFS Northeast Region's Request for Proposals for right whale
research and Atlantic coast states right whale recovery plan programs.
These priorities included the need for research on the horizontal and
vertical distribution of right whales in the water column, including
over rocky bottom and coral or wreck habitats, as well as research on
the temporal and spatial distribution of right whales. In this final
rule, NMFS is implementing broad-based measures to further reduce the
risk of serious injury and mortality to large whales from interactions
with commercial fishing gear. In the future, NMFS will discuss with the
ALWTRT the results of any projects that study right whale behavior and
their use of the water column.
Comment 297: One commenter urged NMFS to consider right whale
foraging research, specifically the recommendations from the Northern
Gulf of Maine Foraging Workshop. The commenter stated a need to
understand if large whales forage in rocky and tidal areas before
requiring the investment in new gear.
Response: NMFS agrees that more information must be collected on
large whale foraging behavior in rocky and tidal areas and some of this
information is currently being gathered. For example, Maine DMR is
working with a number of whale research organizations to gather
zooplankton data along the coast of Maine to help determine if right
whales may be foraging there. Once these data are collected and
analyzed, the resulting information will be presented to the ALWTRT. At
the present time, for both right and humpback whales, serious injuries
and mortalities resulting from interactions with commercial fishing
gear regulated under the ALWTRP continue to occur, and PBR has been
exceeded. PBR for the North Atlantic stock of right whales is set at
zero and for the Gulf of Maine stock of humpback whales, PBR is set at
1.3 (Waring et al., 2006). Therefore, NMFS is required to take
additional action to further reduce serious injury and mortality to
large whales resulting from interactions with commercial fishing gear
regulated under the ALWTRP. Also, see response to Comment 296.
Comment 298: One commenter suggested NMFS conduct research
concerning large whale prey distribution and whale foraging areas, and
how these tie into effective gear marking and how to effectively reduce
risk of vertical lines.
Response: This is an area that both NMFS and the ALWTRT recognize
as important. A variety of organizations are already conducting
research on large whale prey items; for example, Maine DMR is working
in conjunction with a number of whale research organizations to gather
zooplankton data in Maine waters. In addition, NMFS developed a number
of right whale biological priorities in support of the ALWTRP and
included these in the 2006 NMFS Northeast Region's Request for
Proposals for right whale research and Atlantic coast states right
whale recovery plan programs. One priority included the need for
research on the vertical distributions of both the processes and the
prey organisms related to right whale foraging for habitat
characterization and predictive modeling. See response to Comment 307.
Comment 299: Several commenters suggested NMFS research humpback
and finback whale foraging, given they feed on different prey items
than right whales. One commenter said that more whale research is
needed to identify foraging areas, the availability of food, how it
affects whales, migration patterns, and feeding habitats.
Response: NMFS agrees and continues to conduct research, as well as
support research conducted by NMFS partners, on all the above mentioned
topics.
Comment 300: One commenter suggested that NMFS work with Maine DMR
to periodically review whale foraging and distribution and other
sources of mortality.
Response: NMFS agrees and will continue to work with Maine DMR and
other entities, including the ALWTRT, to study and review factors
affecting whale foraging, distribution, and other sources of mortality.
Comment 301: One commenter suggested using humpback whales as
proxies for right whales when testing new technology because of the
larger population (i.e., permitting may be easier).
Response: As indicated in the FEIS for the SAM interim final rule
(67 FR 1142,

[[Page 57157]]

January 9, 2002) and this final rule, it is not feasible to conduct and
evaluate experiments on right or humpback whale interactions with
modified gear configurations. For obvious reasons, NMFS cannot conduct
field tests or laboratory experiments on right or humpback whales to
collect data to test new gear technology. However, NMFS is able to
analyze past entanglement events and develop ways to modify gear in
order to reduce risk of serious injury and mortality from future
entanglement events. This information is discussed in the forum of the
ALWTRT. In terms of gathering biological information on right whales,
NMFS believes that in some cases humpback whales may be used as proxies
for right whales. However, in most instances, right and humpback whales
differ ecologically and behaviorally, so data collected on humpback
whales may not be transferred to right whales in all cases. For
example, humpback whales could not be used as a proxy to examine the
entanglement risks associated with foraging behavior of right whales
because the two species differ in their prey items as well as in the
techniques they use to capture their prey.
Comment 302: Two commenters requested that NMFS consider the
relative role of gear entanglements when compared to overall mortality
estimates.
Response: Currently, there is no reliable method for estimating the
number of large whales that die each year from entanglements, although
recovered carcasses do provide minimum values. However, NMFS is
responsible for applying the mandates and requirements set forth in the
ESA and MMPA. Section 118 of the MMPA requires that NMFS reduce
incidental mortality and serious injury of marine mammals resulting
from interactions with commercial fishing gear. For this reason, it is
not necessary to compare the relative role of fishing gear
entanglements with overall large whale mortality estimates because by
law, NMFS is required to address the issue of large whale interactions
with commercial fishing gear. The FEIS provides a complete description
of the status of the large whale stocks that are covered under the
ALWTRP as well as the effects of commercial fishing on these species.
Further, the PBR rate for North Atlantic right whales, as described in
Waring et al., 2006, is zero. The PBR for the Gulf of Maine stock of
humpback whales is 1.3. For both right and humpback whales, serious
injuries and mortalities resulting from interactions with commercial
fishing gear regulated under the ALWTRP have occurred, and PBR has been
exceeded. Therefore, NMFS is required to take additional action to
further reduce serious injury and mortality to large whales resulting
from interactions with commercial fishing gear regulated under the
ALWTRP. NMFS is implementing this final rule to further address large
whale entanglements in commercial trap/pot and gillnet fisheries along
the U.S. east coast. NMFS appreciates the work of all trap/pot and
gillnet fishing industry members that are involved in the ALWTRT
process.
Comment 303: One commenter stated that little gear testing has been
done in the Southeast.
Response: A variety of gear research and testing, in particular
focusing on gillnet gear, has been conducted by NMFS from North
Carolina through Florida in conjunction with commercial fishermen. For
example, for the sink and shark gillnet fisheries, NMFS has collected
load cell data on the strains exerted when hauling the gear, as well as
load cell data on the loads exerted on buoy and anchoring systems.
These data are useful in making determinations about the operational
feasibility of different weak link breaking strengths in these
fisheries. In addition, NMFS is continuing to work with black sea bass
fishermen to assess the use of sinking and/or neutrally buoyant
groundline in this fishery.
Comment 304: One commenter requested that NMFS develop and propose
an evaluation method to identify those gear modifications that
genuinely reduce risk and those that do not make a difference in
occurrence and/or seriousness of large whale entanglements. The
commenter believes this information is critical to assessing and
revising, as needed, gear modifications under the ALWTRP.
Response: NMFS agrees that ALWTRP management measures should be
evaluated. At the 2005 ALWTRT meeting, a ``Process for Considering Gear
Modifications under the ALWTRP'' was finalized and approved by the
ALWTRT. This is a formalized process that describes how NMFS and the
ALWTRT would handle gear modification proposals. This process
identifies a standard set of questions that would be used for
evaluating and responding to gear modifications. The five categories
used to evaluate gear modification proposals are: product description,
feasibility, risk reduction, relationship with current requirements
under the ALWTRP, and recommendation of the ALWTRT. Gear modification
proposals or ideas would be evaluated by regional ALWTRT subgroups, and
gear modification recommendations from these subgroups would be
presented to the full ALWTRT for possible incorporation into the
ALWTRP.
Comment 305: One commenter stressed the importance of gear
research. Additionally, commenters encouraged NMFS to continue
promoting research initiatives that explore fishing techniques that
reduce entanglement risk and develop new whale safe gear (including low
profile groundline).
Response: NMFS agrees that gear research is an important component
of the ALWTRP. NMFS developed a number of fishing gear research
priorities and included these in the 2006 NMFS Northeast Region's
Request for Proposals for right whale research and Atlantic coast
states right whale recovery plan programs. Such priorities include the
need for reducing the risk associated with vertical line, as well as
research for reducing the profile of groundline. The Right Whale
Research Program specifically solicits the submission of idea projects
in which a new device or process is developed, as well as pilot
projects which involve developing an idea or concept and conducting at-
sea testing involving one or more members of the fishing industry. The
Atlantic Coast States Cooperative Planning for Right Whale Recovery
Program encourages state agencies to apply for funding to further
develop their right whale recovery programs, which in many cases
includes conducting gear research. NMFS will continue promoting these
research initiatives as funding allows and will work through the ALWTRT
to maintain an updated list of gear research priorities, as well as
priorities related to right whale biological needs in support of the
ALWTRP. NMFS encourages the fishing industry, state partners, and
others to work collaboratively with the agency to continue to develop
new ideas and techniques that will reduce entanglement risk.
Comment 306: One commenter urged NMFS to work with scientists on
devising an assessment program for determining how effective individual
measures are for all whale species and understanding fishing practices
and geography to adapt the plan accordingly.
Response: NMFS agrees that the ALWTRP management measures should be
evaluated and that this should be done at the ALWTRT level, for which
scientists are members. At the 2004 ALWTRT meeting, NMFS formed a
Status Report Subcommittee that is responsible for discussing various
issues including how the ALWTRT and NMFS should evaluate the ALWTRP.
Feedback from the Status Report Subcommittee

[[Page 57158]]

will then be provided to the full ALWTRT. See also response to Comment
305. The ALWTRT is composed of a wide variety of participants from many
different backgrounds, including state and federal managers,
scientists, the fishing industry, environmentalists, fishery management
organizations, and more. At each meeting, the ALWTRT is briefed with
the most recent available information on a variety of topics, including
the species managed by the ALWTRP, as well as information about the
fisheries that are regulated under the ALWTRP. The Status Report
Subcommittee is the avenue by which ALWTRP monitoring will be
discussed.
Comment 307: One commenter suggested combining the results of
whale-related and gear-related research. The commenter encouraged
further research on the seasonal distribution of buoy lines and the
number of traps fished per buoy as well as the seasonal distribution of
whale sightings and their prey (i.e., look at the probability of how
these overlap in real time).
Response: This is an area that both NMFS and the ALWTRT are
interested in exploring. NMFS is presently supporting an analysis that
is examining the seasonal and temporal distribution of vertical lines
for all trap/pot and gillnet fisheries. In addition, much right whale
research is being conducted and supported by NMFS at this time. NMFS'
NEFSC is currently conducting research to ultimately compare the
density of fishing gear to the density of whales to develop a better
picture of potential overlap. Ecological work is also being carried out
in the Great South Channel to see how right whales are interacting with
the sea floor; results will help NMFS gain a better understanding of
whale interactions with fixed fishing gear. Right whale foraging
research is also being conducted and forms the foundation of critical
habitat analyses currently being preformed by NMFS. Once these analyses
are finalized, the results will be compiled and distributed to the
ALWTRT. These results will then be used by NMFS and the ALWTRT when
discussing different management options that can be used to reduce
entanglement risk associated with vertical lines.
Comment 308: Commenters urged NMFS to do more research on: (1)
Fishing gear that works reliably and safely, under all weather
conditions; and (2) how whales interact with fishing gear in order to
know what kind of gear will keep whales free of entanglement.
Response: NMFS is committed to gear research and development and
will continue to develop reliable and safe gear modifications. NMFS has
gear laboratories and research teams that specifically focus on gear
development and testing, incorporating tides, sea conditions, weather
conditions, load cell data, and the size/and or weight of gear into
their analyses. Additionally, NMFS contracts with researchers,
individuals and companies to develop gear solutions.
NMFS agrees that it would be useful to determine how whales
directly interact with fishing gear. However this would be difficult
research to conduct without endangering right whales further, and is
thus, not particularly tractable at this time.
Comment 309: One commenter stated that there needs to be more
research done to examine appropriate gear modifications when necessary.
Response: See response to Comment 306.
Comment 310: One commenter suggested that NMFS research include
exempted areas.
Response: NMFS is working with states to help monitor exempted
areas. Based on analysis of sightings data, NMFS understands that large
whales may occasionally be reported in exempted waters such as bays and
harbors, but believes that these occurrences are rare. If, in the
future, whales are more frequently reported in exempted waters, NMFS
and the ALWTRT will reevaluate the exemption lines for those particular
areas to determine whether changes are needed.
Comment 311: One commenter requested that NMFS develop a
prioritization scheme for granting scientific research permits that
address critical bycatch, entanglement, or other conservation needs.
Response: NMFS recognizes the concern, however, it is not within
the scope of this final rule.
Comment 312: One commenter questioned a NMFS study that indicated
that more than 90 whales were killed between the early 1990s and 2002.
The commenter asked what the cause of death was in each case and
specifically whether any were linked to lobster fishing because the
study mentions ship strikes as cause of death. The commenter also
requested a breakdown by year to determine whether there is an upward
or downward trend during the reporting period. The commenter stated
that data from 2003-04 are not presented, so it is difficult to
determine if current steps taken by fishermen are working since not
enough time has elapsed.
Response: For updated and complete reports on large whale mortality
estimates, NMFS suggests Waring et al., (2006) and/or Cole et al.,
(2006). Data the commenter cites may not have been available when the
DEIS was originally formulated; the report would have since been
incorporated into current analyses where feasible. See Comment 4.
Comment 313: One commenter stated that the DEIS does not address
the remotely operated vehicle (ROV) research conducted in Maine.
Response: NMFS has added text to Chapter 5 in the FEIS to address
this research.
Comment 314: One commenter asked if NMFS is assuming that
entanglement risks occur solely during foraging since research on other
cetacean behavior and entanglement risks is not suggested.
Response: While the nature of foraging behavior is consistent with
the mouth entanglements recorded, NMFS does not assume this is the only
cetacean behavior that leads to entanglements. The potential for
entanglement as a result of different behaviors is suggested by both
the diverse geographic locations in which entanglements occur (see
Chapter 4 of the EIS) and the parts of the whale on which gear or
scarring are found (see Chapter 2 of the EIS).

Comments on Economic and Social Impacts (of the ALWTRP)

Comment 315: Several commenters suggested that the government issue
grants to fishermen to help defray costs and replace old gear.
Response: NMFS understands that there are costs associated with
converting gear to become compliant with the new ALWTRP requirements.
To date, NMFS has supported two floating groundline gear exchange
programs, and their purpose was to provide financial aid to commercial
fishermen to replace their floating groundline with sinking and/or
neutrally buoyant groundline. The first took place in 2004 and early
2005 and included participation from Massachusetts-licensed inshore
lobster trap/pot fishermen. The second took place in January 2006 and
sought the participation of state and/or federally licensed commercial
trap/pot fishermen in New Jersey, Delaware, Maryland, Virginia, and
North Carolina. Approximately $200,000 was spent replacing floating
groundline with sinking and/or neutrally buoyant groundline in the Mid-
Atlantic. Both programs involved the collection of actively fished
floating groundline and the issuance of vouchers that fishermen used
toward the purchase of sinking and/or neutrally buoyant groundline. A
similar floating groundline exchange program is underway for state and

[[Page 57159]]

Federally licensed commercial trap/pot fishermen in the State of Maine.
For additional information, see responses to Comments 85 and 93.
Comment 316: One commenter asked if it is possible for
environmental groups to contribute money to do more research on whales
and see where they go.
Response: NMFS welcomes collaborative partnerships with any group
to help fund research on large whale distribution.
Comment 317: One commenter believes financial resources should be
allocated to research and development and monitoring priorities as
established within the TRT working group process.
Response: NMFS agrees that gear research is an important component
of the ALWTRP and that ALWTRP priorities should be monitored. See
responses to Comments 305 and 306.
Comment 318: One commenter said that the fishermen need resources
allocated in order to conduct a collaborative research program that
will: (1) Document conditions in which fishermen work; (2) allow
fishermen to work safely with no additional economic burden; and (3)
find common sense answers and those applicable to areas where people
fish with hybrid or other type of rope or gear that can be used.
Response: NMFS welcomes fishermen to apply for funding under the
Right Whale Research Program, which requests proposals annually,
contingent upon available funding, and focuses on funding projects that
seek to reduce the risk of serious injury and mortality to right whales
due to entanglement in commercial fishing gear. NMFS encourages the
submission of proposals seeking to develop new gear modifications or
pilot project designs to test newly developed or even existing gear
modifications that have not yet been field tested on a larger scale.
NMFS encourages applicants to work closely with NMFS in the development
of ideas or concepts. Ideas or concepts that have been developed
through this program, or through other means, will be presented/
provided to the ALWTRT for discussion.
Comment 319: Some commenters stated that right whales are a
federally protected species and, therefore, should be free of all
entanglement and mortality risks due to fishing gear, regardless of the
potential economic consequences for the fishing industry.
Response: NMFS is responsible for applying the mandates and
requirements set forth in the ESA and MMPA. Accordingly, section 118 of
the MMPA requires that NMFS reduce incidental mortality and serious
injury of marine mammals resulting from interactions with commercial
fishing gear. The FEIS provides a complete description of the status of
the large whale stocks that are covered under the ALWTRP as well as the
effects of commercial fishing on these species. Further, the PBR rate
for North Atlantic right whales, as described in the most recent U.S.
SAR, is set at zero. Similarly, the PBR rate for the Gulf of Maine
stock of humpback whales is set at 1.3 (Waring et al., 2006). For both
right and humpback whales, serious injuries and mortalities resulting
from interactions with commercial fishing gear regulated under the
ALWTRP have occurred, and PBR has been exceeded. Therefore, NMFS is
required to take additional action to further reduce serious injury and
mortality to large whales resulting from interactions with commercial
fishing gear regulated under the ALWTRP. NMFS is trying to find a
balance between allowing the fishing industry to continue to fish and
protecting the endangered large whales that are protected under the
ALWTRP. The only way that right whales would be free of all
entanglement and associated serious injury and mortality risks due to
fishing gear would be to enact gear closure areas throughout the
species' range. However, the ALWTRP regulations favor broad-based gear
modifications over area closures. Movement and location of whales is
often difficult to predict with certainty, making gear modifications
potentially more protective than closures of limited areas.
Furthermore, closures may produce undesirable consequences such as
concentrations of gear just outside of closed areas, which could
increase entanglement risks to large whales.
Comment 320: Some commenters argued that the economic viability of
east coast fisheries is at least as important as whale protection
goals. They were concerned that additional costly fishery regulations
would drive the fishing industry out of business.
Response: Due to the continued entanglements of the large whale
species covered under the ALWTRP, NMFS is required to make further
modifications to the ALWTRP. NMFS has chosen not to move forward with
implementing new area closures; therefore, the new regulations favor
broad-based gear modifications. In the FEIS, NMFS examines the
economic, social, and biological impacts on commercial fishermen
resulting from the modifications to the ALWTRP under the final
preferred alternative. In addition, the Final Regulatory Flexibility
Analysis (FRFA) in the FEIS considers the impacts of the proposed as
well as final preferred alternatives on small entities and examines
avenues for reducing the impacts. For further information on economic
issues, see response to Comment 319.
Comment 321: One commenter asked if NMFS tested the use of sinking
and/or neutrally buoyant groundline on Maine's rocky sea floor to
determine that it is not economically devastating.
Response: NMFS has provided a number of fishermen along the coast
of Maine, from Lubec to Kittery, with neutrally buoyant groundline in
order for those fishermen to test at sea the feasibility of its use in
the areas they fish. NMFS received feedback from some of these
fishermen who fish on a variety of bottom types, including rocky
bottom, that the line was fished successfully. Other fishermen reported
that they experienced problems when using this type of line. It should
be noted that anywhere along the East Coast, different fishermen are
going to experience different issues with the use of sinking and/or
neutrally buoyant groundline based on differences in tidal and weather
conditions, gear configurations, and fishing practices.
Comment 322: One commenter said that section 118 of the MMPA allows
consideration for the economics of the gillnet fishery and availability
of existing technology as well as state and regional FMP's.
Response: Section 118 (f)(2) of the MMPA includes both short- and
long-term goals. Specifically, it states that ``the immediate goal of a
take reduction plan for a strategic stock shall be to reduce, within 6
months of its implementation, the incidental mortality and serious
injury of marine mammals taken incidentally in the course of commercial
fishing operations to levels less than the potential biological removal
level established for that stock under section 117'' (16 U.S.C. 1387).
Further, it states that ``the long-term goal of the plan shall be to
reduce, within 5 years of its implementation, the incidental mortality
or serious injury of marine mammals incidentally taken in the course of
commercial fishing operations to insignificant levels approaching a
zero mortality and serious injury rate, taking into account the
economics of the fishery, the availability of existing technology, and
existing State or regional fishery management plans'' (16 U.S.C. 1387).
To achieve these goals, NMFS determined that additional modifications
to the ALWTRP were warranted based on the continued serious injury and
mortality of large whales in commercial fishing gear. See response to
Comment 320.

[[Page 57160]]

Comment 323: One commenter stated that economic impacts are similar
across the board, with most impact affecting the New England lobster
fishery. The commenter does not see how NMFS can justify choosing
Alternatives 3 and 6 as preferred over Alternatives 2 and 4, based on
economic analysis and what is known about the Mid-Atlantic as a right
whale migratory corridor. Another commenter also believed New England
lobstermen are also disproportionately burdened.
Response: Based on comments received on the DEIS, NMFS has
developed a new preferred alternative, Alternative 6 Final, that offers
significantly lower economic costs while sacrificing little
protectiveness. Chapter 8 of the EIS provides an overview of the costs
and benefits of all the alternatives.
Because of the geographic concentration of the lobster fishery in
New England (see Chapter 7) and the relatively large size of the
lobster fishery, it is true that New England vessels bear a large share
of the overall estimated costs of the ALWTRP modifications. Given whale
movements and behavior, however, New England waters represent important
areas for entanglement risk reduction. Furthermore, the social impact
analysis suggests that under Alternative 6 Final (Preferred), only a
limited subset of smaller vessels are likely to experience costs that
represent a significant share of per-vessel fishing revenues. Finally,
groundline buyback programs will help mitigate compliance cost impacts.
See Comment 137.
Comment 324: One commenter stated that vessel compliance costs
assume upper and lower bounds of complying are similar between vessel
classes. The commenter states that, as noted in the DEIS, this could
underestimate some vessel class revenue estimates and overestimate
compliance cost impacts. The commenter also believes small sample sizes
of vessel revenues are insufficient in providing accurate analysis of
potential compliance cost estimates by vessel class. Therefore, the
commenter requests that these economic and social impact analyses be
corrected to be more representative.
Response: The commenter correctly recognizes the uncertainty
inherent in both the cost and revenue analyses and the efforts made to
characterize this uncertainty. It should be noted, however, that the
direction of this uncertainty is unknown (i.e., the figures could be
biased in the opposite direction of those stated by the commenter).
Furthermore, the shortcomings of the revenue data (e.g., sample sizes
for certain vessel classes and fisheries) are fully documented in
Chapter 7 of the EIS; no better revenue sources are available at this
time.
Comment 325: One commenter questioned DEIS Exhibit 7.4.1.2, which
specified that vessel revenues were derived from the 2002 NMFS dealer
database, yet are compared with compliance costs under future
regulations (and, therefore, the likely impacts on employment). The
commenter believes analysis is needed that will project the difference
between the costs and revenues following the proposed implementation
date of the new rules.
Response: Consistent with the comment, the analysis of vessel
impacts ideally would compare costs and revenues following the
introduction of the ALWTRP modifications; instead, the analysis
compares with-regulation costs to pre-regulation revenues. Little
information exists to assess how the ALWTRP modifications would affect
vessel revenues; however, the nature and scale of the proposed
regulatory changes would likely have little impact on harvests, prices,
and other factors affecting vessel revenue. Therefore, even if
comparison of post-regulatory costs and revenues were feasible, it is
unlikely that such an analysis would result in markedly different
socioeconomic impact conclusions.
Comment 326: One commenter said that the chart in Chapter 6 about
economic analysis left out several counties and ports in New Jersey
(Sea Isle City, Cape May, Belford, and Point Pleasant) that should have
been considered in the economic analysis. The commenter said that all
fishermen affected by the rule in those regions should be considered in
the analysis, even those listed above that do not meet the criteria for
at risk counties.
Response: The definition of at-risk communities inherently focuses
on areas where the potential for ALWTRP impacts is significant in
scale, as indicated by ALWTRP landings or vessels. As suggested by the
commenter, however, other counties that do not meet the threshold
criteria may realize significant impacts. Although the overall scale of
these impacts may not be great, their importance to specific towns,
neighborhoods, or vessels should not be overlooked. This point has been
highlighted in the FEIS. In addition, the county-level analysis is
intended to provide a broad idea of where impacts may be centered
geographically. It is separate from the cost/revenue analysis, which
considers all vessels, regardless of their landing port or home port.
Comment 327: One commenter said that it would probably cost
fishermen $75,000 just to switch over to the rope plus a couple weeks
worth of work. The costs includes the crew and everything else.
Response: While the model vessels analyzed in Chapter 6 of the FEIS
are generalized and may not reflect costs for all individual vessels,
NMFS does not believe that initial gear conversion costs (costs beyond
routine gear replacement costs) will typically be as high as $75,000.
The analysis suggests that average initial investment costs are likely
to be on the order of $39,000 for offshore vessels. While these vessels
may realize high costs relative to revenues, fishermen have the option
of seeking loans to finance the initial costs of converting their gear.
In addition, initial conversion costs may be mitigated, at least in
part, by current and future groundline buyback programs operated by
NMFS and other partners.
Comment 328: One commenter expressed concern with the prices
associated with changing to sinking rope. The commenter states that
rope was $98 a coil last year and this year it was $113. Hence, the
commenter believes that the rope price will go up. The commenter also
believes that fuel is a major issue, stating that as fuel costs go up,
the cost of rope will follow. It cost $10,000 for the commenter to
switch over his rig in 2004 and in 2008 it may cost $15,000-20,000 or
more depending on the price of fuel. The commenter also said that China
is buying up all the materials needed to make this rope. The commenter
asked what will happen in 2008, if the rope will be available, and the
fishermen will be able to afford the rope.
Response: The commenter is correct in noting the positive
relationship between oil costs and petroleum-based materials in
groundline as well as the dynamic nature of oil prices. In the FEIS,
the economic analysis has been revised to incorporate up-to-date prices
for groundline, fuel, and other input parameters. Predicting future
trends in oil prices is highly complex, however; therefore, the
analysis does not attempt to forecast changes in input costs for future
years.
Comment 329: One commenter stated that he spreads his expenses out
over the year, and to absorb a massive expense that has been expensed
over a period of 6 or 8 years does not work. A hundred percent of the
burden of the expense of these requirements goes to the industry.
Response: The comment focuses primarily on the large initial
investment

[[Page 57161]]

that may be required to convert gear. Although costs are high for some
vessels, NMFS made modifications to the final rule, based on public
comment, to decrease costs where possible while still meeting its goals
under the MMPA and ESA (see Changes from the Proposed Rule section of
the preamble). While these vessels may still realize high costs
relative to revenues, the impacts of converting to sinking and/or
neutrally buoyant groundline may be defrayed, in part, by current and
future groundline buyback programs operated by NMFS and other partners.
In addition, although the requirements under Alternative 6 Final
(Preferred) may impose significant costs within the first year after
publication of the final rule (to convert all groundline to sinking
and/or neutrally buoyant groundline), fishermen may be able to
distribute the cost of the new gear over its useful life by seeking a
loan. After the first year, ongoing costs would be significantly lower
as fishermen would only need to replace worn-out and lost gear.
Comment 330: One commenter said that NMFS needs to think about
social and economic impact to fishermen themselves, including the cost
to change things around for fishermen and the social and economical
factors going on.
Response: NMFS is sensitive to the costs of complying with this
final rule and has characterized the economic and social impacts in the
FEIS. Chapter 7 of the EIS identifies vessel segments that may be
heavily affected by the requirements and suggests that under
Alternative 6 Final (Preferred), a limited number of small vessels are
most at risk. As a result, harvest levels are unlikely to change and
related industries (e.g., seafood processing) are not likely to be
affected. Although costs are high for some vessels, NMFS made
modifications to the final rule, based on public comment, to decrease
costs where possible while still meeting its goals under the MMPA and
ESA (see Changes from the Proposed Rule section of the preamble). While
some vessels may still realize high costs relative to revenues,
fishermen have some options to try to mitigate these costs. For
example, the impacts of converting to sinking and/or neutrally buoyant
groundline may be defrayed, in part, by current and future groundline
buyback programs operated by NMFS and other partners.
Comment 331: One commenter said that it has been estimated recently
that the economic benefit of the lobster fishery in Maine is 500
million dollars. This commenter stated that it was ironic that the
fishermen were a week away from paying taxes and the same government
that supports them is coming to them with alternatives that would
severely impact, if not end, their way of life. The commenter said that
Coastal Maine and coastal communities depend on the lobster fishery as
part of their heritage and culture, as well as an economic base and
there is nothing that can take its place.
Response: NMFS acknowledges the economic importance of the lobster
industry and has attempted to characterize the harvest and processing
sectors accurately in the EIS. The specific source of the commenter's
$500 million figure is uncertain, but the estimate is not unreasonable
given ex-vessel revenues and the regional economic contribution of
industries that depend on fishing. However, the ALWTRP modifications
contained in the final rule are not likely to have the severe
implications suggested by the commenter. While costs may be high for
some vessels, the compliance costs are generally commensurate with
revenues, i.e., costs as a percent of revenue are not prohibitive.
Chapter 7 identifies vessel segments that may be heavily impacted by
the requirements and suggests that under Alternative 6 Final
(Preferred), a limited number of small vessels are most at risk. As a
result, harvest levels are unlikely to change and related industries
(e.g., seafood processing) are not likely to be affected.
Comment 332: One commenter was concerned about the economic impacts
of changing over from either neutrally buoyant rope or going to all
sink rope. The commenter recently bought neutrally buoyant rope for
$1.85/pound and does not understand where NMFS got $3,500 per boat
cost. A few commenters believed that cost is too low, and that money
spent on groundlines alone will be over $20,000.
Response: The per-vessel cost cited ($3,500) is the average across
a variety of vessel size classes and is an annualized figure; that is,
it represents the sum of annualized initial investment costs and annual
maintenance costs. Consistent with the comment, the lump sum initial
investment for most lobster vessels will be higher than annualized
costs. Although costs are high for some vessels, NMFS made
modifications to the final rule, based on public comment, to decrease
costs where possible while still meeting its goals under the MMPA and
ESA (see Changes from the Proposed Rule section of the preamble). While
these vessels may still realize high costs relative to revenues,
fishermen have some options to try to mitigate the costs. For example,
the impacts of converting to sinking and/or neutrally buoyant
groundline may be defrayed, in part, by current and future groundline
buyback programs operated by NMFS and other partners. In addition,
although the requirements under Alternative 6 Final (Preferred) may
impose significant costs within the first year after publication of the
final rule (to convert all groundline to sinking and/or neutrally
buoyant groundline), fishermen may be able to distribute the cost of
the new gear over its useful life by seeking a loan.

Comments on Other Species

Comment 333: One commenter states that NMFS has not looked at the
impacts on other species and has little basis to assume humpbacks,
finbacks, and minke whales would benefit. The commenter states that
right whales, which have different prey requirements, are the main
target of conservation. This leads to different feeding and
distribution, which may also lead to different conservation needs. The
commenter believes NMFS should not rely on closures and gear
modifications that only protect right whales because the agency may
omit areas that are important to other large whale species.
Response: The ALWTRP is designed to reduce the risk of mortality
and serious injury to large whales (right, humpback, and fin whales),
with benefits to non-endangered minke whales, due to interactions with
commercial fishing gear. The ALWTRP focuses on reducing entanglements
of critically endangered North Atlantic right whales, whose population
contains approximately 300 animals. NMFS established the areas and
seasons being implemented in this final rule by analyzing databases
that included right, humpback, and fin whale sightings. NMFS believes
that the gear modifications being implemented, especially the
requirement to use sinking and/or neutrally buoyant groundline, will
benefit all large whale species by reducing entanglement risk of
commercial fishing gear. In the future, NMFS will re-evaluate the
ALWTRP with the ALWTRT if information becomes available indicating that
the measures being implemented in this final rule are ineffective.
Comment 334: One commenter stated that there is an increase in
lobster effort (800 in 1996 and 1400 today) and gear conflicts, and a
decrease in herring abundance due to expanded trawling; therefore,
there are fewer humpbacks, finbacks, and minke whales in Maine
according to an article published in ``Fisherman's Voice,'' April 2005.
Response: The information provided in the article in ``Fisherman's
Voice''

[[Page 57162]]

with respect to large whales off the coast of Maine is anecdotal. NMFS
does not estimate the local abundance of humpback, fin, and minke whale
populations so it is difficult to determine the local abundance of
these species off the coast of Maine. For further information on these
species, please see the SAR (Waring et al., 2006).
Comment 335: One commenter believed that the take levels for some
whale species are so low that they could not be achieved. This
commenter believed, therefore, that any takes resulting from whale
entanglements in fishing gear would lead to more stringent fishery
regulations.
Response: Under section 118 of the MMPA, NMFS is required to meet
both the short and long-term take reduction plan goals of reducing
serious injury or mortality from commercial fishing operations. The
short-term goal is to reduce serious injury or mortality to below PBR,
while the long-term goal is to achieve a level that is approaching a
zero mortality and serious injury rate (i.e., ZMRG). Due to the
continued entanglements of large whales in commercial fishing gear,
NMFS is required to take additional action to further reduce the
entanglement risk associated with commercial fishing gear. NMFS will
continue to discuss with the ALWTRT any future modifications that will
be made to the ALWTRP.
Comment 336: One commenter states that NMFS has not updated SARs
and entanglement studies for finbacks or minke whales. Without
scientific information, the commenter believes there is no way to
assess impacts of entanglements on these stocks or the ALWTRP benefits
to them.
Response: NMFS recently published updated SARs for all four of the
large whale species affected by the ALWTRP (Waring et. al., 2006).
Information from these and earlier SARs has been integrated into the
FEIS.

Comments on Definitions

Comment 337: Some commenters questioned NMFS' basis for determining
exempted areas. One commenter asked how ``frequently'' is defined in
the DEIS. The commenter specifically referenced the DEIS language that
states NMFS will re-evaluate exempted areas if right whales are
frequently reported inside these areas.
Response: NMFS did not define ``frequently'' in the DEIS. NMFS
believes, based on scientific data, that endangered large whales will
rarely venture into bays, harbors, or inlets that have been exempted.
Based on this, and other information provided in Appendix 3-A of the
FEIS related to the exemption waters in final preferred alternative,
NMFS believes the risk of gear to large whales in the exempted areas is
minimal. However, NMFS will continue to monitor all exempted areas, and
encourage states to develop contingency plans for large whales in these
areas. Should new information become available that indicates that a
change in the inshore or deep water exemption areas is warranted, NMFS
will share the information with the ALWTRT and take appropriate action.
Comment 338: One commenter requested that NMFS define ``weighted
device'' for enforcement purposes (i.e., ``include a weak link on all
flotation and/or weighted devices attached to the buoy line'').
Response: NMFS agrees and has modified the regulatory text to
identify acceptable ``weighted devices''. For example, a weighted
device includes window weights, but does not include traps/pots,
gillnets, anchors, or leadline woven into buoyline.
Comment 339: One commenter does not support the definition of a set
gillnet, which is considered an anchored gillnet, and suggests a
definition of a set gillnet as ``any gillnet that is weighted, but does
not have an anchor(s) on either end and returns to port with the
vessel''.
Response: Although various types of gillnets are included in the
anchored gillnet definition, such as set and stab nets, NMFS recognizes
that the nets may be fished in various ways. This issue is of
particular relevance in the Mid-Atlantic. NMFS will discuss this with
the ALWTRT and coordinate with other TRTs that may use this definition
under section 229.2 to determine whether this type of change to the
definition is appropriate.
Comment 340: One commenter stated that the proposed definition of
wet storage of gear in the proposed rule at paragraph (c)(ii) on page
35922 (70 FR 35894, June 21, 2005) is not enforceable as currently
written. The definition specifies that trap or pot gear must be hauled
out of the water at least once every 30 days. The commenter is
concerned that to prove this portion of the rule, an unsustainable
amount of surveillance would be required to maintain visual proximity
of a particular piece of gear.
Response: Thirty-day soak limits have been enforced. Enforcement
actions based on the 30-day soak limit were taken in 10 cases in 2005.
Comment 341: NMFS received one comment regarding the definition of
weak links on page 35922 (ii)(B)(1) of the proposed rule (70 FR 35894,
June 21, 2005). The commenter states that USCG personnel will be unable
to determine the breaking strength of any type of weak link unless the
breaking strength is clearly indicated by the manufacturer.
Response: NMFS believes that the weak link requirements are
enforceable. In the regulations, NMFS references a brochure that
outlines the weak link techniques currently approved to assist in
compliance with and enforcement of the regulations, and specifies how
to obtain the brochure. NMFS has worked with the USCG in the past to
provide training and tools for enforcement efforts. NMFS will continue
to provide necessary additional training and tools to the USCG to
support enforcement of the ALWTRP.
Comment 342: NMFS received one comment regarding the definition of
tending/anchoring/weak links on page 35927, (ii)(c), of the proposed
rule (70 FR 35894, June 21, 2005). This section states that all
gillnets must return to port with the vessel unless the gear meets the
required specifications. The commenter states that a USCG officer has
no way of determining whether in-situ gear is in compliance with weak
link or anchoring requirements. To enforce this, a law enforcement
officer would need to be present during gear set or retrieval.
Additionally, the commenter states that some requirements (e.g.,
breaking strength) may be impossible to determine on scene, undermining
the intended effect of this regulation.
Response: Although the ALWTRP regulations are complex, NMFS
believes they are enforceable. NMFS has worked with the USCG in the
past to coordinate during the development of regulations, and as well
as to provide training as noted in the response to Comment 341.
Additionally, NMFS will work with the USCG on a coordinated plan to
facilitate enforcement of the ALWTRP.
Comment 343: NMFS received one comment regarding the definition of
gear requirements on page 35923 (iii)(B) of the proposed rule (70 FR
35894, June 21, 2005), specifically ``No person may fish with or have
available for immediate use trap/pot gear.'' The commenter suggested
clearly defining the term ``available for immediate use'' for law
enforcement personnel. The commenter stated that a good example is
found in enforcement of Turtle Excluder Devices (TEDs), where shackling
the trawl to the doors is indicative of ``available for immediate
use''. Without amplifying information, the commenter believes that
arbitrary and capricious enforcement may result.

[[Page 57163]]

Response: NMFS agrees and has modified the regulatory text to
address this issue.
Comment 344: NMFS received one comment regarding the definition of
``groundline'' on page 35923 (5)(ii)(B) of the proposed rule (70 FR
35894, June 21, 2005). That section states that all groundlines must be
composed entirely of sinking or neutrally buoyant line unless exempted.
The commenter states that if this line is not labeled as sinking or
neutrally buoyant, it will not be recognized as a violation. A USCG
boarding officer will only see the line coiled on deck or under strain
as it is in the process of being hauled back or set and neither
condition will demonstrate compliance with the regulation.
Response: In this final rule, NMFS is amending the definitions of
``neutrally buoyant line'' and ``sinking line'' and is clarifying each
definition in relation to groundlines and buoy lines. Also, to provide
a clearer definition of neutrally buoyant and sinking line, NMFS has
developed criteria for establishing a density standard for neutrally
buoyant and sinking line and used these criteria to develop the
definitions. NMFS will finalize a procedure for assessing the specific
gravity of line, which NMFS will use in the future to determine whether
a manufactured line meets the accepted density standard, through this
final action. Additionally, NMFS is developing guidance for law
enforcement officers on how to evaluate whether line is sinking/
neutrally buoyant or floating in the field.
Comment 345: NMFS received one comment regarding the definition of
``anchoring system'' on page 35926 (ii)(C) of the proposed rule (70 FR
35894, June 21, 2005). The commenter believes the requirement to have a
burying anchor is easily enforceable, but it will be difficult to
determine if the different types that will be encountered will have a
holding capacity equal to or greater than a 22-lb (10.0-kg) Danforth-
style anchor. The commenter suggested providing the USCG with a table
that identifies all the anchoring systems of these types that meet the
holding capacity requirement.
Response: NMFS believes that the anchoring requirements are
enforceable. In the regulations, NMFS references a brochure that
outlines how to comply with any anchoring requirements to assist in
compliance with and enforcement of the regulations, and specifies how
to obtain the brochure. NMFS has worked with the USCG in the past to
provide training and tools for enforcement efforts. NMFS will continue
to provide any necessary additional training and tools to the USCG to
support enforcement of the ALWTRP.
Comment 346: NMFS received one comment regarding the definition of
``night'' on page 35932 of the proposed rule (70 FR 35894, June 21,
2005). The commenter suggests changing the definition to ``Night means,
with reference to the regulated waters of Georgia and Florida, any time
after official sunset and before official sunrise as determined for the
date and location in the nautical Almanac, prepared by the U.S. naval
Observatory''.
Response: NMFS proposed definitions of sunset and sunrise that
referenced the National Almanac, prepared by the U.S. Naval
Observatory. However, since proposing definitions in 50 CFR 229.2 for
``sunrise'' and ``sunset'', these definitions were added through the
BDTRP (71 FR 24776, April 26, 2006). Thus, the definitions in 50 CFR
229.2 are as follows: ``Sunrise means the time of sunrise as determined
for the date and location in the Nautical Almanac, prepared by the U.S.
Naval Observatory;'' and ``Sunset means the time of sunset as
determined for the date and location in the Nautical Almanac, prepared
by the U.S. Naval Observatory.'' NMFS believes that these modifications
will make the ``night'' definition clearer and more enforceable.
Comment 347: One comment was received regarding the definition of
special provision for strike nets on page 35929(5)(i)(A) of the
proposed rule (70 FR 35894, June 21, 2005). This paragraph states that
no nets can be set at night when visibility is less than 500 yards
(457.2 m or 1,500 ft). The commenter believes this would be
subjectively enforced. The commenter recommended less subjective
language (e.g., ``No nets may be set after official sunset as
determined for the date and location in the Nautical Almanac, prepared
by the U.S. Naval Observatory'').
Response: The regulations require, amongst other requirements, that
no nets are set at night or when visibility is less than 500 yards
(1500 ft, 457.2 m). Night is currently defined under 50 CFR 229.2 as
any time between one half hour before sunset and one half hour after
sunset. Through this final rule, NMFS is defining sunset and sunrise by
referencing the Nautical Almanac prepared by the U.S. Naval Laboratory.

Clarification Requests for the FEIS

Comment 348: One commenter asked if the RPA measures (developed
pursuant to ESA section 7) contained in the DEIS alter the reasonable
and prudent measures that have previously been incorporated into the
ALWTRP through past rulemakings.
Response: The measures described in the DEIS were developed by NMFS
through feedback received during meetings with the ALWTRT, as well as
through public scoping and comment, not as a result of a section 7
consultation on any Federal action. A section 7 consultation has been
reinitiated to examine the effects of the Federal lobster fishery, as
modified by the existing ALWTRP and RPA for right whales. This
consultation is in progress. NMFS has also reinitiated consultation on
the continued implementation of the Federal summer flounder, scup, and
black sea bass fisheries that are managed under the Summer Flounder,
Scup, and Black Sea Bass FMP, based on new information that suggested
effects to listed species as a result of the black sea bass and scup
trap/pot fisheries in a manner or to an extent not previously
considered. This consultation is ongoing. NMFS will consider the
provisions of this final rule during consultation on the continued
implementation of the Summer Flounder, Scup, and Black Sea Bass FMP.
NMFS will also consider, based on the criteria for reinitiating
consultation (50 CFR 402.16), whether formal consultation for the
continued implementation of the Northeast Multispecies, Monkfish, and
Spiny Dogfish FMPs must be reinitiated as a result of the changes to
the ALWTRP. Section 7 consultations completed June 14, 2001, on the
continued implementation of these FMPs concluded that the fisheries
would jeopardize the continued existence of right whales. An RPA was
provided, and the regulatory components were implemented as part of the
ALWTRP. NMFS has determined that the operation of other federally-
managed fisheries (e.g., HMS, Coastal Pelagics, Snapper/Grouper) will
not jeopardize the continued existence of right whales or any other
large whale species managed under the ALWTRP.
Comment 349: One commenter asked NMFS to discuss the need for
additional ESA section 7 consultations to address the potential impacts
of the revised ALWTRP on right whales and other listed species in the
FEIS.
Response: An informal consultation under the ESA was concluded for
the rule to modify the Atlantic Large Whale Take Reduction Plan on
December 21, 2004. As a result of the informal consultation, the
Regional Administrator determined that the measures to modify the
ALWTRP are not likely to adversely affect ESA-listed cetaceans, sea
turtles, fish, or critical

[[Page 57164]]

habitat that occur within the area affected by the rulemaking.
Modifications are being made to the ALWTRP by this final rule to more
broadly address the incidental entanglement of large whales in fishing
gear that result in serious injury and mortality. Some of these
modifications (e.g., regulating additional trap/pot and gillnet
fisheries under the ALWTRP, requiring the broad-based use of sinking
and/or neutrally buoyant groundline) are expected to have an effect on
ESA-listed species. However, depending on the species, all of the
effects are expected to be either beneficial or negligible.
Comment 350: One commenter said that on p. 3-6 of the DEIS, the
driftnet provisions needed to be clarified.
Response: NMFS has made a variety of edits and clarifications in
Chapter 3 of the FEIS that may better characterize proposed changes for
driftnet vessels.
Comment 351: One commenter asked NMFS to clarify DEIS pg. 5-40; as
the commenter detected a contradiction between whale distribution and
when the requirements are required.
Response: NMFS disagrees. The alternatives under consideration in
the DEIS considered whale distribution when determining the time
periods of the requirements. Although whales may be present outside a
seasonal window, the sightings are rare, and the risk of gear to large
whales at these times of the year is minimal. However, NMFS will
continue to monitor the areas where seasonal requirements are in
effect. Should new information become available that indicates that a
change in seasonal window is warranted, NMFS will share the information
with the ALWTRT and take appropriate action. See response to Comment
41.
Comment 352: One commenter states that the hazards to whales and
areas of most risk need to be clarified.
Response: The ALWTRP regulations favor broad-based gear
modifications over additional special management areas. Movement and
location of whales is often difficult to predict with certainty.
However, as NMFS continues to conduct rulemaking to achieve the goals
of the ALWTRP, special management areas could be defined in the future.
Comment 353: Some commenters urged NMFS to include a discussion in
the FEIS about the effectiveness of weak links because they are treated
as an important risk reducing element, but effectiveness is still
unclear. One commenter states that in the DEIS, NMFS indicates the
agency believes weak links might work, but does not provide data or
analysis on how frequently weak links have failed to prevent
entanglements in cases for which gear was examined. Another commenter
stated that the DEIS leaves a false impression that weak links are
known to be effective in reducing entanglements and that using such
devices would reduce bycatch to required PBR levels.
Response: NMFS has added additional clarification in the FEIS on
these issues regarding weak links. Evidence that weak links help
prevent whale entanglements is discussed in Chapter 5, Section 5.1.1.3
of the FEIS. Section 5.2 discusses impacts on non-whale species and
explicitly acknowledges that weak links are not likely to reduce
bycatch of most non-whale species; only whale species with the size/
strength to break weak links are likely to benefit from weak link
requirements.
Comment 354: One commenter states that the DEIS is incorrectly
describing collaborative real and simulated fishing and field tests
conducted by fishermen and the NMFS gear research team as ``simulated
whale entanglements''.
Response: A search of the entire EIS document yielded no instances
of the term ``simulated whale entanglements''. However, NMFS did find a
discussion in the footnote of Chapter 5 of the DEIS describing NMFS
investigations ``simulating an entanglement.'' NMFS believes that the
characterization of the studies as written is appropriate.
Comment 355: One commenter referenced page 2-39 of the DEIS, in
which NMFS reports that 9 fatal entanglements and 22 live entanglements
of large whales were observed in 2002, after the most recent revisions
of the ALWTRP. The commenter requested that NMFS address this in the
FEIS, as caveats were not taken into account in the DEIS.
Response: Data on entanglements occurring since the most recent
revisions to the ALWTRP have been updated using finalized figures
published in the 2003 Stock Assessment Report (Waring et al., 2006).
Apart from the general caveats applying to all entanglement
information, additional caveats are no longer appropriate.
Comment 356: One commenter states that the DEIS does not provide
the history or context of right whale status relative to federal
efforts to protect whales and fails to consider cumulative effects of
all sources of mortality on right whales.
Response: NMFS disagrees. The DEIS and FEIS provide a status of
right whales (Chapter 4--Affected Environment), as well as a cumulative
effects analysis (Chapter 9--Cumulative Effects Analysis) that
considers various sources of mortality to right whales, including the
following sources of mortality: commercial whaling, ship strikes, water
pollution, noise pollution, climate change, and prey availability.

Changes From the Proposed Rule

NMFS made the following changes from the proposed rule published on
June 21, 2005 (70 FR 35984, June 21, 2005) to the final rule:
(1) The proposed rule requirement for sinking and/or neutrally
buoyant groundline by January 1, 2008, for trap pot gear (70 FR 35900,
June 21, 2005) and gillnet gear (70 FR 35904, June 21, 2005) (unless
otherwise required in the Cape Cod Bay Restricted Area for trap/pot
(January 1-May 15) or SAM areas) is modified in this final rule to be
effective twelve months after publication of the final rule. NMFS
believes that the January 1, 2008, deadline will not give fishermen
time to comply with this requirement. Typically, NMFS provides 30 or 60
days for fishermen to comply with gear modifications such as mesh size
restrictions and other requirements. However, as evident by
overwhelming public comment, given the magnitude of the time and
resources needed by fishermen to change their gear to sinking and/or
neutrally buoyant groundline requirement, NMFS believes giving
fishermen 12 months from the publication of the final rule to comply is
warranted.
Although the broad-based sinking/neutrally buoyant groundline
requirement will become effective on October 6, 2008 (except in the
Cape Cod Bay Restricted Area for trap/pot (January 1-May 15) and
expanded SAM areas), NMFS believes the time frame allowed for this
requirement will not compromise conservation efforts. As stated in the
proposed rule, NMFS believes that fishermen will begin changing over
their gear prior to the effective date as fishermen replace their
groundline as it naturally wears out and due to previous or planned
groundline exchange programs.
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

[[Page 57165]]

when a DAM zone is established. NMFS believes this situation will 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 twelve months from the
publication of this final rule.
(2) Modifications to the proposed exempted areas in Maine (70 FR
35906, June 21, 2005) are approved in this final rule. In 2003, the
State of Maine asked NMFS to re-examine the ALWTRP exemption lines and
Maine DMR submitted a suggested exemption line to the agency. As
described in the proposed rule, NMFS chose what it felt at the time was
a more conservative exemption line for the State of Maine. However,
NMFS received a number of comments from members of the fishing industry
and government agencies in support of this line, stating a lack of
sightings data inside the suggested line. Based upon these comments,
NMFS has further investigated the exemption line suggested by the State
of Maine and its level of protection. NMFS reanalyzed the current and
proposed exemption lines and analyzed large whale sightings
distribution data from available sources that are more current than the
information analyzed for the DEIS. NMFS re-examined dedicated survey
effort and opportunistic sightings data from 1960 to mid-September
2005, obtained from the NARWC Sightings Database (curated by URI),
supplemented by additional data on humpback and fin whale sightings. In
addition, NMFS analyzed large whale sightings data from 2002 through
2006 that were collected through the NEFSC's systematic aerial surveys,
as well as through the Northeast U.S. Right Whale Sighting Advisory
System (SAS). NMFS also analyzed a right, humpback, and fin whale
sightings database compiled by Maine DMR, which includes sightings
reported by Maine Marine Patrol, whale watching companies, etc. Lastly,
NMFS considered right whale satellite tracking data as provided in
peer-reviewed papers by Mate et al. (1997) and Baumgartner and Mate
(2005).
Sightings and satellite tracking data along the east coast
indicated that endangered large whales rarely venture into bays,
harbors or inlets. Based on this, and other information provided in
Appendix 3-A of the FEIS related to the exempted waters under the final
preferred alternative, NMFS believes large whales rarely occur inside
many of Maine's bays, harbors, or inlets. Although NMFS' proposed
exemption line was closer to shore in some areas, NMFS believes Maine
DMR's suggested exemption line would adequately protect endangered
large whales. Thus, NMFS concluded that the final exemption line for
Maine (as suggested by Maine DMR) is appropriate based on the current,
available information. Therefore, in this final rule, NMFS is
finalizing the exemption line in Maine as the line suggested by Maine
DMR, and from this point forward will refer to this line as the final
exemption line for Maine.
In response to industry comments, NMFS will not use the 72 COLREGS
line to mark exempted waters for Casco Bay. Also, NMFS will not use the
territorial sea baselines to exempt Little River, Pleasant Bay,
Narraguagus Bay, Pigeon Hill Bay, Frenchman Bay, Muscongus Bay, Johns
Bay, or Saco Bay. Lastly, as proposed, to exempt Penobscot and Blue
Hill Bays, NMFS will use three coordinates from NMFS' proposed
exemption line for Maine that match three coordinates from the
exemption line suggested by Maine DMR. For the remaining inlets in
Maine, the coordinates proposed by NMFS will be removed and replaced
with the coordinates of the final exemption line for Maine (Figure 4).
NMFS understands that large whales may occasionally be reported in
exempted waters, which is consistent with the sightings data that were
analyzed. NMFS will continue to monitor all exemption areas, and should
new information become available, determine if changes to exemption
areas are warranted.
In New Hampshire, waters currently exempted from the ALWTRP
regulations are those landward of the first bridge over any embayment,
harbor, or inlet. Through this final rule, NMFS is modifying the
exempted waters for New Hampshire's three harbors, two as proposed and
one slightly modified. As proposed, NMFS will exempt Rye and Hampton
Harbors according to the lines drawn across the headlands that mark
their entrances to the sea. Portsmouth Harbor will not be exempted
according to the 72 COLREGS demarcation line (the only 72 COLREGS line
found in the state) because it will be exempted through the final
exemption line for Maine, as this line's final coordinate is located at
Odiorne Point, New Hampshire.
(3) The proposed exemption lines for Massachusetts (70 FR 35906,
June 21, 2005) are not implemented in this final rule. This is based on
public comments from the Massachusetts Division of Marine Fisheries,
which indicated that the proposed exemption lines are too small to
benefit fishermen. In addition, Massachusetts commercial trap/pot
fishermen are already using sinking and/or neutrally buoyant
groundline. Thus, NMFS will not be implementing the proposed exempted
lines at this time, and will revert back to the status quo for this
area as depicted in Figure 5 (i.e., exempted waters are landward of the
first bridge over any embayment, harbor, or inlet). If the
Massachusetts Division of Marine Fisheries believes exemption lines are
warranted at some point in the future, NMFS will revisit this issue
with the ALWTRT.
(4) The final rule will modify the exempted areas for Long Island
Sound and Gardiners Bay. Regarding the current Long Island Sound
exemption line, the States of Connecticut and New York, as well as
members of the fishing industry, cited safety issues and gear loss
concerns with using sinking and/or neutrally buoyant groundline in an
area just outside of this line, as well as lack of consistency with
other exemptions lines. Thus, they supported an exemption line
extending north to south through Block Island Sound from Watch Hill
Point, Rhode Island, to Montauk Point, New York (following the
territorial sea baseline), based on the lack of whale sightings in the
area and the need for consistency with exemption lines in other areas.
NMFS believes this area has infrequent whale sightings and was able to
confirm this by re-examining dedicated survey effort and opportunistic
sightings data from 1960 to mid-September 2005, obtained from the NARWC
Sightings Database (curated by URI), supplemented by additional data on
humpback and fin whale sightings. In addition, NMFS analyzed large
whale sightings data from 2002 through 2006 that were collected through
the NEFSC's systematic aerial surveys, as well as through the Northeast
U.S. Right Whale Sighting Advisory System, and the right whale
satellite tracking information provided in Mate et al. (1997) and
Baumgartner and Mate (2005). In addition, the Riverhead Foundation for
Marine Research and Preservation recently conducted aerial surveys of
the waters off Long Island, New York and east of Block Island from
November 2004 to April 2005 (RFMRP, 2005). No large whales were sighted
near the entrance to Long Island Sound or Gardiners Bay, further
confirming that this area is not important large whale habitat.
Under this final rule, NMFS will modify exempted areas for Long
Island Sound and Gardiners Bay by using the territorial sea baseline
that extends from Watch Hill Point, Rhode Island to Montauk Point, New
York, through

[[Page 57166]]

Block Island Sound, as depicted in Figure 5.
(5) Components of the buoy line gear marking requirement in the
proposed rule (70 FR 35905, June 21, 2005) are being implemented in
this final rule. Although many commenters support the concept of gear
marking, NMFS received numerous comments opposing the proposed gear
marking scheme stating that it would be too time-consuming, costly,
impractical to implement while at sea, and would provide limited
information. Based upon these comments, under this final rule, all
fisheries will mark with one mark mid-way on the buoy line in the water
column (i.e., status quo scheme for previously regulated and newly
regulated fisheries) and mark surface buoys. NMFS will continue to
discuss gear marking strategies with the ALWTRT.
(6) The proposed rule configuration for gillnet net panel weak
links (70 FR 35901, June 21, 2005), as well as the configuration
suggested by the public, will be implemented under this final rule.
NMFS sought comment from the public on additional configurations for
gillnet net panel weak links and received numerous, consistent comments
from the fishing industry, Mid-Atlantic Fishery Management Council
(MAFMC), scientists, conservationists, and a state organization
regarding an alternate configuration. The public proposed an
alternative weak link configuration to the proposed configuration and
placement of five or more weak links/gillnet net panel. This
configuration is similar to the configuration agreed upon by consensus
by the Mid/South Atlantic ALWTRT Subgroup at the 2005 meeting.
NMFS believes this alternative configuration is a functional
equivalent to what was originally proposed. As gillnet net panels are
closely strung together, a single weak link placed between the
floatline tie loops between gillnet net panels would provide the same
risk reduction as a single weak link placed as close as possible to
each end of the gillnet net panel just before the floatline meets the
up and down line. For this alternative configuration, weak links would
also be required at the ends of each string where the floatline tie
loop attaches to the bridle, buoy line, or groundline (depending on how
the gear is configured). Thus, in addition to the proposed
configuration, NMFS will allow the following: one weak link placed
between the floatline tie loops between gillnet net panels; one weak
link in the center of each gillnet net panel; one weak link in the up
and down lines of gillnet net panels; and one weak link placed where
the floatline tie loops attaches to the bridle, buoy line or groundline
at each end of the string. In this final rule, NMFS will specify the
two configurations options for gillnet net panel weak links where more
than one weak link is required per gillnet net panel in the associated
ALWTRP management areas (e.g., SAM areas, Other Northeast Gillnet
Waters). The same configuration option would be required for all
gillnet net panels in a string.
Based on the determination that the two net panel weak link
configurations are functional equivalents, NMFS believes the optional
configuration should be allowed in the current SAM areas and
established DAM zones when a gear modification option is selected
thirty days after publication of this final rule. This will allow
fishermen to choose between options without waiting six months after
publication of the final rule when the SAM area is expanded and the two
configuration options are allowed in this area. Additionally, this will
allow fishermen to choose between options in implemented DAM zones when
a gear modification option is selected. By allowing the two
configuration options in the current SAM areas earlier than six months
after publication of the final rule, and in established DAM zones while
the DAM program remains in effect, would reduce the burden to fishermen
by giving them options for meeting the net panel weak link requirements
without increasing entanglement risks.
(7) The gillnet weak link and anchoring configurations from the
proposed rule, as well as an optional configuration for North Carolina,
are being implemented in this final rule. In the proposed rule, NMFS
sought comment on alternative weak link and anchoring configurations
within 300 yards (900 ft or 274.3 m) of the beach (70 FR 35901, June
21, 2005). NMFS received numerous, consistent comments from the North
Carolina Division of Marine Fisheries, North Carolina Division of
Coastal Management, North Carolina Marine Fisheries Commission (NCMFC),
MAFMC, fishing industry and conservationists regarding an alternate
configuration for gillnet net panel weak links and anchoring systems.
This configuration is similar to the configuration agreed upon by
consensus by the Mid/South Atlantic ALWTRT Subgroup at the 2005
meeting. NMFS believes this alternative weak link and anchoring
configuration is a functional equivalent to what was proposed. Thus, in
addition to the final configuration of five or more 1,100-lb (499.0-kg)
weak links per gillnet net panel depending on the length of the net
anchored with the holding capacity equal to or greater than a 22-lb
(10.0-kg) Danforth-style anchor on each end of the net string, NMFS
will allow the following within 300 yards (900 ft or 274.3 m) of the
beach along the shoreline of North Carolina: five or more 600-lb
(272.2-kg) weak links depending on the length of the net anchored on
the offshore end of the net string with the holding capacity equal to
or greater than an 8-lb (3.6-kg) Danforth-style anchor and at the
inshore end of the net string with a dead weight equal to or greater
than 31 lb (14.1 kg). NMFS will also clarify that the entire net string
must be less than 300 yards (900 ft or 274.3 m) from shoreline for this
provision.
In April 2005, the NMFS Gear Team worked with a North Carolina
commercial fisherman to conduct an investigation of weak links and
anchoring systems that would allow fishermen safe retrieval of gear in
coastal waters within 300 yards (900 ft or 274.3 m) of the shoreline
while ensuring weak links placed in gillnet net panels would perform as
designed. These tests were conducted as industry expressed concern that
anchors in the 22-lb (10.0-kg) Danforth range used on net strings
present safety issues for small vessels. Several types of anchoring
systems and weak link breaking strengths were examined during the
investigation. Based on results of the testing, NMFS believes that
allowing an 8-lb (3.6-kg) Danforth-style anchor on the outside end of
the net string, a 31-lb (14.1-kg) dead weight on the inside end of the
net string along with 600-lb (272.2-kg) weak links will allow for a
safer anchoring configuration for coastal fishermen in North Carolina
and provide the same level of protection to whales as a 22-lb (10.0-kg)
Danforth-style anchor and 1,100-lb (499.0-kg) weak links.
(8) An exemption for gillnet net panel weak link and anchoring
requirements if the depth of the float-line is in waters deeper than
280 fathoms (1,680 ft or 512.1 m) is implemented in this final rule.
Based on public comments, this final rule will exempt fishermen from
ALWTRP requirements in waters deeper than 280 fathoms (1,680 ft or
512.1 m) as whales are not likely to occur in those depths.
Additionally, NMFS has not tested the operational feasibility of using
weak links in gillnets set to those depths. This exemption is
consistent with gillnet groundline exemptions deeper than 280 fathoms
(1,680 ft or 512.1 m).
(9) Although NMFS proposed the use of VMS in lieu of the 100-
percent call-

[[Page 57167]]

in requirement for observer coverage in the ``Southeast U.S. Monitoring
Area,'' from 32[deg]00[min] N. lat. to 26[deg]46.5[min] N. lat., NMFS
is modifying the boundaries of this area to exclude the Southeast U.S.
Restricted Area. Thus, the area would extend from 27[deg]51[min] N.
lat. to 26[deg]46.5[min] N. lat. landward of 80[deg]00[min] W. long.
Information obtained by NMFS since the proposed rule was published
indicates that distinguishing between vessels that are fishing with
strikenet (referred to from this point onward as gillnet that is
deployed so that it encloses an area of water) versus those that are
fishing with driftnets may be more difficult using VMS-generated tracks
than originally thought, and VMS tracks may be ``spoofed'' (one fishing
technique deliberately made to appear like another fishing technique)
making it difficult to differentiate between the two fishing
techniques. Distinguishing between gillnet that is deployed so that it
encloses an area of water and driftnet fishing is essential since
fishing with gillnet that is deployed so that it encloses an area of
water is allowed in the restricted area, but fishing with driftnets is
prohibited. Therefore, NMFS believes a total reliance on VMS to enforce
the time/area gillnetting and gear-type restrictions of the Southeast
U.S. Restricted Area may be less risk-adverse to right whales than
monitoring fishing activities using 100 percent observer coverage.
Observer monitoring, while not an enforcement tool, can provide
information to managers on whether regulations need to be modified to
address compliance issues. This requirement is effective 30 days after
the publication of the final rule rather than six months after the
publication as proposed, as this would eliminate an additional
requirement for fishermen in this area.
(10) The proposal for drift gillnet gear to place one 1,100-lb
(499.0-kg) weak link per gillnet net panel when fishing tended drift
gillnet gear at night is not accepted in this final rule. NMFS is not
implementing this requirement at this time as potential safety issues
were raised by the industry and the Mid-Atlantic Fishery Management
Council. Thus, NMFS believes further research on this fishery, and
specifically testing weak links in drift gillnet gear, is needed before
weak links should be required. Thus, this final rule will implement the
current drift gillnet fishing requirements for the Mid/South Atlantic
and Northeast.
(11) The proposal for trawls of four or fewer traps to be allowed
only one buoy line (Northern Nearshore Trap/Pot Waters, Stellwagen
Bank/Jeffreys Ledge Restricted Area, and Federal Waters of Cape Cod Bay
Restricted Area (May 16--Dec. 31) (70 FR 35899, June 21, 2005)) is not
approved in this final rule. NMFS believes this modification does not
address the current inconsistencies regarding this requirement both
within the ALWTRP regulations and with the Federal lobster regulations.
NMFS will address this issue with the ALWTRT during future discussions
regarding vertical line risk reduction. Thus, the final rule will
continue to implement the current requirement of trawls of five or
fewer traps to be allowed only one buoy line in the areas noted above.
(12) The LMA 3/5 (i.e., overlapping zone between LMA 3 and LMA 5)
will be added to the regulations wherever LMA 3 is listed in this final
rule. This overlap is based on the final rule published on March 14,
2006 (71 FR 13034), to amend regulations to modify the management
measures applicable to the Federal American lobster fishery. The ALWTRP
regulated waters in this overlap area were originally included in
Lobster Management Area 3 and will be managed in the same manner. The
addition of LMA 3/5 to the regulations allows NMFS to have consistency
between the ALWTRP and Federal lobster management area regulations
where appropriate.
(13) Changing the southern boundary of the Mid/South Atlantic
Gillnet Waters and the northern boundary of the Other Southeast Gillnet
Waters management areas from 32[deg]00' N. lat. to ``South Carolina/
Georgia border'' is not approved in this final rule (70 FR 35902, June
21, 2005). NMFS believes that the 32[deg]00' N. lat. coordinate is more
appropriate to denote the border. Thus, reverting back to the status
quo for this issue is appropriate.
(14) NMFS received numerous comments from the fishing industry
stating that the proposed name changes and area boundaries for
Southeast gillnet management areas were confusing. Thus, the proposal
to change the terminology of ``Southeast U.S. Restricted Area'' to
``Northern Monitoring & Restricted Area,'' and the portion of the
``Southeast U.S. Observer Area,'' not included in the ``Southeast U.S.
Restricted Area,'' to ``Southern Monitoring Area'' (70 FR 35908, June
21, 2005) for the Southeastern U.S. Atlantic shark gillnet fishery
only, is not approved in this final rule. Additionally, the proposal to
have ``Other Southeast Gillnet Waters'' be a management area for the
Southeast Atlantic gillnet fishery only, is not approved in this final
rule. NMFS will extend management areas in the southeast to the eastern
edge of the EEZ as proposed. Thus, designated waters in the Southeast
will also be redefined under this final rule.
NMFS will retain Southeast U.S. Restricted Area terminology
established in the June 25, 2007 final rule amending the ALWTRP (72 FR
34632) for both Southeast Atlantic and Southeastern U.S. Atlantic shark
gillnet fisheries. Additionally, for the Southeastern U.S. Atlantic
shark gillnet fishery, NMFS will also change ``Southeast U.S. Observer
Area'' to ``Southeast U.S. Monitoring Area'' for regulated waters west
of 80[deg]00' W. long., but this area will now only extend from
27[deg]51' N. lat. south to 26[deg]46.5' N. lat. and VMS will be
substituted for the 100-percent call in requirement for this area only.
Although 100-percent observer coverage would no longer be required
under this final rule, NMFS would retain observer coverage sufficient
to produce statistically reliable results to evaluate the impact of the
fishery on protected species. In addition, this final rule will also
define the waters east of 80[deg]00' W. long. from 32[deg]00' N. lat.
south to 26[deg]46.5' N. lat. and out to the eastern edge of the EEZ as
``Other Southeast Gillnet Waters.'' NMFS will designate ``Other
Southeast Gillnet Waters'' from 32[deg]00' N. lat. south to 27[deg]51'
N. lat. for the Southeast Atlantic gillnet fishery, and south to
26[deg]46.5' N. lat. for the Southeast U.S. shark gillnet fishery. The
expansion of this area east to the eastern edge of the EEZ will be
consistent with the ALWTRP area boundary expansion in the Mid-Atlantic.
As designated waters have been redefined, associated requirements
in some waters are being changed under this final rule. A recent
analysis has found that it is unlikely that large whales, right whales
in particular, extend eastward beyond 80[deg]00' W. long. in the
Southeast region. Hence, less restrictive ALWTRP measures will be
required in ``Other Southeast Gillnet Waters'' east of 80[deg]00' W.
long. and out to the eastern edge of the EEZ. For the Southeast
Atlantic gillnet fishery operating in these waters south to 27[deg]51'
N. lat., only gear modification requirements, similar to final
requirements for anchored gillnets in Mid/South Atlantic Gillnet
Waters, will be approved in this final rule. For the Southeastern U.S.
Atlantic shark gillnet fishery operating in these waters south to
26[deg]46.5' N. lat., only the following requirements will be in effect
under this final rule: no net set within 3 nautical miles (5.6 km) of a
right, humpback or fin whale; and if a right, humpback or fin whale
moves within 3 nautical miles (5.6 km) of the set gear, the gear is
removed immediately from the water.

[[Page 57168]]

(15) This final rule also incorporates the modifications to the
Southeast U.S. Restricted Area implemented through a recent ALWTRP
final rule (72 FR 34632, June 25, 2007). These modifications include
revised management measures and boundaries for this management area, as
well as associated changes to the regulations. Consequently, portions
of the Mid/South Atlantic Gillnet Waters (i.e., waters within 35 nm
(64.82 km) of the South Carolina coast) will be included in the
Southeast U.S. Restricted Area from November 15 through April 15,
during the right whale calving season. Also, based on the modifications
to the June 25, 2007 final rule (72 FR 34632), NMFS will not be making
the proposed regulatory changes related to the straight set and
strikenet definitions in this final rule. Furthermore, this final rule
will not add the straight set definition based on the deletion of the
associated strikenet definition in the June 25, 2007 final rule (72 FR
34632).
(16) NMFS proposed definitions in Sec. 229.2 for ``sunrise'' and
``sunset''; however, since that time, these definitions were added
through the Bottlenose Dolphin Take Reduction Plan (71 FR 24776, April
26, 2006). Thus, these definitions are not included in this action.

Classification

This final rule has been determined to be significant for the
purposes of Executive Order 12866.
This final rule identifies measures to reduce the risk of serious
injury or mortality from entanglement of large whales under the ALWTRP.
A DEIS was prepared for the proposed rule and was finalized based on
the changes made from the proposed to final rules. NMFS considered six
alternatives for this final rule; the final preferred alternative is
recognized and justified in the FEIS.
As required by the Regulatory Flexibility Act, NMFS prepared a
Final Regulatory Flexibility Analysis (FRFA) for this final rule. The
FRFA incorporates a summary of the significant issues raised by the
public comments in response to the Initial Regulatory Flexibility
Analysis (IRFA), and NMFS responses to those comments provided
elsewhere in the preamble to this final rule, and a summary of the
analyses completed to support the final action. A copy of this analysis
for this final rule is available from NMFS (see ADDRESSES). Cost and
benefit estimates were developed and examined for six regulatory
alternatives, including a status quo (no action alternative). A summary
of the FRFA follows:
The objective of this final rule, issued pursuant to section 118 of
the Marine Mammal Protection Act (MMPA), is to reduce the level of
serious injury and mortality of right, humpback, and fin whales in
commercial east coast trap/pot and gillnet fisheries. The key fisheries
affected by this final rule include the American lobster trap/pot
fishery, other trap/pot fisheries, and gillnetting operations. ALWTRP
requirements could also potentially affect seafood dealers and
processors as well as fishing gear manufacturers, suppliers, and marina
operators. However, data are not readily available on the latter
sectors, so the analysis does not examine them in detail.
There were six alternatives considered to modify the ALWTRP,
including a status quo (no action alternative), two preferred
alternatives, and three other alternatives. The final preferred
alternative is a modification to one of the original preferred
alternatives. All alternatives to the final rule, except for the status
quo (no action alternative), were evaluated using model vessels, each
of which represents a group of vessels that share similar operating
characteristics and would face similar requirements under a given
regulatory alternative. A summary of the analysis follows:
1. Under Alternative 1, NMFS would continue with the status quo,
i.e., the baseline set of ALWTRP requirements currently in place. This
would result in no changes to the current measures under the ALWTRP
and, as such, would result in no additional economic effects on the
fishing industry. This alternative, however, would not achieve the
required reduction in incidental mortality and or serious injury of
large whales in commercial fishing gear, nor meet the requirements of
the ALWTRP, thus NMFS rejected this alternative.
2. NMFS considered and rejected Alternative 2, which would
implement broad-based, coast-wide gear modifications year-round for all
Atlantic fisheries regulated by the ALWTRP. These gear modifications
would include: The use of weak links on all flotation devices;
discontinuing the SAM and DAM programs and requiring the use of
entirely sinking and/or neutrally buoyant groundline effective 12
months after publication of the final rule; the use of weak links and
anchoring systems for gillnets; and implementing new gear marking
requirements for buoy lines. This alternative would also cover several
new fisheries under the ALWTRP regulations that use gear similar to
gear used by those fisheries already subject to the regulations,
redefine some of the regulated area boundaries, extend the scope of the
ALWTRP regulations out to the eastern edge of the EEZ, and expand and
clarify the areas exempted from the plan. The incremental costs that
Alternative 2 would impose on the commercial fishing industry range is
estimated to be approximately $19.2 million per year. NMFS concluded
that the potential for entanglement of whales in Mid-Atlantic or South
Atlantic waters during summer months is minor, and that year-round
requirements, as proposed by this alternative, would offer a marginal
risk reduction benefit to large whales. Seasonal implementation of gear
conversion requirements, instead of year-round gear modifications,
would also reduce compliance costs for fishermen without increasing
risks to whales.
3. Alternative 3, which was identified as one of two preferred
alternatives in the proposed rule, would implement all of the
requirements included in Alternative 2, except that the requirements
for Mid- and South Atlantic waters south of 40[deg]00' N. lat. would be
seasonal rather than year-round. Waters north of 40[deg]00' N. lat.
would be subject to ALWTRP gear modifications year-round. The
incremental costs that Alternative 3 would impose on the commercial
fishing industry is similar to costs under Alternative 2 (approximately
$19.2 million per year). NMFS rejected this alternative as it did not
provide immediate protection to right whales by offering an expanded
SAM zone with sinking and/or neutrally buoyant groundline requirements
to protect predictable aggregations of right whales.
4. NMFS considered and rejected Alternative 4, which consisted of
all of the gear modifications included in Alternative 2, except that
the requirements for South Atlantic waters south of the South Carolina/
Georgia border would be seasonal rather than year-round. Waters north
of this border would be subject to ALWTRP gear modifications year-
round. The incremental costs that Alternative 4 would impose on the
commercial fishing industry is similar to costs under Alternative 2 and
3 (approximately $19.2 million per year). This alternative was rejected
because NMFS concluded that the potential for entanglement of whales in
Mid-Atlantic waters during summer months is minor, and that year-round
requirements, as proposed by this alternative, would offer a marginal
risk reduction benefit to large whales. Seasonal implementation of gear
conversion requirements, instead of year-round gear modifications,
would also reduce compliance costs for

[[Page 57169]]

fishermen without increasing risks to whales.
5. NMFS considered and rejected Alternative 5, which would
implement the requirements included in Alternative 3, except for the
broad-based, coast-wide gear modification requirements such as the use
of entirely sinking/neutrally buoyant groundline, expanded weak link
requirements for gillnet gear at night in the Mid-Atlantic, and weak
link and anchoring requirements for gillnet gear in the Northeast.
Additionally, 6 months after publication of this final rule, this
alternative would expand the SAM areas, allow for a second buoy line,
allow both buoy lines to have up to one-third of the bottom portion of
the buoy line to be composed of floating line in the SAM areas, and
discontinue the DAM program. Alternative 5 would impose incremental
compliance costs of approximately $1.3 million annually. The benefits
of Alternative 5 for whale survival are likely to be significantly
lower than the benefits associated with all other alternatives
considered, hence NMFS did not choose this alternative.
6. NMFS considered and modified Alternative 6, which was identified
as one of two preferred alternatives in the proposed rule. Alternative
6 (Draft) combines elements of Alternative 3 and Alternative 5. Buoy
line weak link requirements and broad-based gear requirements (gillnet
net panel weak links, sinking/neutrally buoyant groundline, anchoring,
gear marking, etc.) would be introduced on the same schedule and with
the same seasonal and geographic provisions as described under
Alternative 3; however, DAM requirements would be eliminated six months
after publication of this final rule, and the expanded SAM zone and SAM
regulations described in Alternative 5 would apply from six months
after publication until the broad-based groundline gear modification
are in place, when the SAM zones would be eliminated. In response to
comments received regarding economic and operational concerns resulting
from the implementation of this alternative, NMFS formulated a final
preferred alternative that builds upon Alternative 6 (Draft).
Alternative 6 (Draft) would impose incremental compliance costs of
approximately $19.2 million annually. NMFS rejected Alternative 6
(Draft) as it does not contain modifications that will allow NMFS to
respond to the comments received while balancing risk reduction
considerations.
7. NMFS selected Alternative 6 (Final Preferred) in this final rule
because it builds upon Alternative 6 (Draft). This alternative will
implement all of the requirements contained in Alternative 3 including
the broad-based, coast-wide gear modifications and seasonal
restrictions. Additionally, as in Alternative 5, this alternative would
expand the SAM areas, allow for a second buoy line, allow both buoy
lines to have up to one-third of the bottom portion of the buoy line to
be composed of floating line in the SAM areas, and eliminate the DAM
program upon expansion of the SAM areas. The SAM program will be
eliminated when the broad-based groundline gear modification becomes
effective. Among all the alternatives considered that achieve the
required reduction in mortality and serious injury to large whales in
commercial fishing gear, this final preferred alternative minimizes
potential economic impacts through various regulatory modifications.
Expanded exemption areas under this final alternative will lower the
number of vessels affected by regulations, also reducing socioeconomic
impacts of this final rule itself. Alternative 6 (Final) would impose
estimated incremental costs of approximately $13.4 million per year,
which is approximately $5.8 million per year less than Alternatives 2,
3, 4, and 6 (Draft). Alternatives 3 and 6 (Draft) were the preferred
alternatives in the proposed rule. This final preferred alternative
will provide an optional weak link configuration for gillnet fisheries,
which will offer fishermen the ability to comply in a low-cost and
conservation equivalent manner. Fishermen will also be able to pursue
lower-cost compliance strategies through the seasonal restrictions for
both the Mid- and South Atlantic regions. The risk-reduction tradeoff
is minimal, given that entanglement risk in the Mid- and South Atlantic
is low in the summer months. NMFS chose this alternative as it had many
of the components of Alternative 6 (Draft), but incorporates
modifications that will allow NMFS to respond to comments to improve
the alternative while balancing risk reduction considerations. For
example, Alternative 6 (Final Preferred) expands exempted waters off of
Maine and Long Island Sound, based on a NMFS analysis that, amongst
other reasons, concludes that large whales are sighted infrequently and
do not spend significant periods of time in these waters. This change
effectively reduces the number of vessels that must comply with the
ALWTRP gear modification from 5,118 under the proposed, preferred
Alternatives 3 (Draft) and 6 (Draft) to 4,353 under Alternative 6
(Final Preferred). The gear marking requirement of one mark midway
along the buoy line, rather than every ten fathoms, is more cost
effective and practical based on current technology. This change
effectively reduces the total number of new gear marks to be installed
by vessels that must comply with the ALWTRP gear modification from 2.2
million under the proposed, preferred Alternatives 3 (Draft) and 6
(Draft) to 0.3 million under Alternative 6 (Final Preferred). This
final rule would also grant an exemption to gillnet panel weak link and
anchoring requirements to any vessel fishing at depths greater than 280
fathoms. Whales are not likely to occur in waters of this depth.
Additionally, allowing anchored gillnet vessels under Alternative 6
(Final Preferred) to use an alternate weak link configuration that is
the functional equivalent of what was proposed enables fishermen to
have more options and flexibility when configuring their gear. These
and other variations to the Final Preferred Alternative (6) decrease
the number of affected vessels and result in reductions in compliance
costs, while sacrificing little in terms of entanglement risk
reduction.
NMFS solicited public comments on both the Draft Environmental
Impact Statement (DEIS) (70 FR 9306, February 25, 2005; 70 FR 15315,
March 25, 2005) and proposed rule (70 FR 35894, June 21, 2005; 70 FR
40301, July 13, 2005) through several different means including written
comment. The public also had the opportunity to provide oral comments
at 13 public hearings held in the states of Maine, Massachusetts, Rhode
Island, New Jersey, Maryland, Virginia, North Carolina, and Florida. A
summary of all comments received and NMFS' responses is included in
Volume II of the FEIS. Significant issues were raised by the public in
response to the expected impacts of this final rule. In general, areas
of concern included: (1) The implementation time for sinking and/or
neutrally buoyant groundline requirements, as well as other new
regulations under this final rule; (2) the delineation of exemption
areas; (3) the practicality of the proposed gear marking scheme; (4)
the configuration of gillnet weak links; (5) the specification of areas
and times during which ALWTRP requirements would be in effect; and (6)
the implementation of gillnet anchoring requirements, especially in
waters within 300 yards (900 ft or 274.3 m) of the shoreline.
NMFS formulated the final preferred alternative based on these
public comments and additional information received. This final
alternative introduces a number of significant

[[Page 57170]]

changes, including: (1) Expanding exempted waters off of Maine and Long
Island Sound; (2) allowing anchored gillnet vessels to use an alternate
weak link configuration; and (3) allowing anchored gillnet vessels
operating within 300 yards (900 ft or 274.3 m) of the shoreline of
North Carolina to use an alternate anchoring configuration. These and
other minor variations decrease the number of affected vessels and
result in reductions in compliance costs, while sacrificing little in
terms of entanglement risk reduction.
The small entities affected by this final rule are commercial trap/
pot and gillnet fisherman operating in Northeast Atlantic, Mid-
Atlantic, and Southeast Atlantic waters. The analysis of the final
preferred alternative identified approximately 4,350 vessels that would
be affected by this final rule (this number does not include
Southeastern U.S. Atlantic shark gillnet vessels, as the analysis for
this action concluded that these vessels would not incur significant
compliance costs).
In the lobster trap/pot fishery, approximately 2,900 vessels would
be affected. The analysis identified 11 vessel segments that can be
considered ``heavily affected'', where estimated compliance costs
exceeded 15 percent of average annual revenues. Nearly all of these
segments are composed of smaller (Class I or Class II) vessels, which
typically have a smaller revenue base with which to absorb compliance
costs. Seven of these segments represent lobster/trap vessels.
Approximately 1,980 other vessels fell into the ``at-risk vessel''
category, where estimated compliance costs were between 5 and 15
percent of average annual revenues. The majority of at-risk vessels are
Class II lobster vessels; of these, the most affected subsets are
vessels in Maine, which are estimated to have greater gear loss costs.
A variety of other vessels fall in the at-risk range, including
northern nearshore lobster vessels, several categories of other trap/
pot vessels (e.g., black sea bass, hagfish, red crab), and Class I
gillnet vessels in the Mid-Atlantic.
This final rule contains collection of information requirements
subject to the Paperwork Reduction Act (PRA), because of the proposed
gear marking scheme. The proposed collection of information requirement
was submitted to the Office of Management and Budget (OMB) for
approval, and is still under review. Once the information collection
has been approved, NMFS will publish a Federal Register notice
providing the OMB approval control number. Public comment was sought
regarding whether this proposed collection of information is necessary
for the proper performance and function of the agency, including: The
practical utility of the information; the accuracy of the burden
estimate; the opportunities to enhance the quality, utility, and
clarity of the information to be collected; and the ways to minimize
the burden of the collection of information, including the use of
automated collection techniques or other forms of information
technology. Send comments regarding this burden estimate, or any other
aspect of this data collection, including suggestions for reducing the
burden, to NMFS (see ADDRESSES) and by e-mail to
David_Rostker@omb.eop.gov, or fax to 202-395-7285.

This collection of information requirement applies to a total of
2,695 newly affected vessels, including 64 model vessel types. Model
vessel types were developed for gillnet fisheries, lobster trap/pot
fisheries, and other trap/pot fisheries. Total burden hours for all
newly affected vessels is 40,702 over three years or 13,567 per year.
Total cost burden for all newly affected vessels is $26,863 over three
years or $8,954 per year. For more information, please see the PRA
submission associated with this rulemaking.
Any information collection requirements subject to PRA and related
to VMS requirements in the U.S. Southeast Atlantic shark gillnet
fishery were addressed in a previous rulemaking (69 FR 51010, August
17, 2004) and approved by OMB under control number 0648-0372. Fishermen
will not incur any additional costs as they currently have all the
equipment required to comply with the reporting requirements.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
NMFS has determined that this final action is consistent to the
maximum extent practicable with the approved coastal management program
of the U.S. Atlantic coastal states. The proposed rule, RIR, RFA
analysis, and DEIS were submitted to the responsible state agencies for
review under section 307 of the Coastal Zone Management Act (CZMA). The
following states agreed with NMFS' determination: New Hampshire, Rhode
Island, New Jersey, Pennsylvania, Delaware, Virginia, South Carolina,
Georgia, and Florida. Maine, Massachusetts, and Maryland did not
respond, therefore, consistency is inferred. Three states, Connecticut,
New York, and North Carolina conditionally concurred with NMFS'
conclusion that the proposed action is consistent with the enforceable
policies of the approved coastal management program for that state;
however, the North Carolina conditional concurrence was treated as an
objection because NMFS could not meet the state agency's conditions.
The Connecticut Department of Environmental Protection and New York
State Department of Environmental Conservation concurred with NMFS'
determination that the amendments to the ALWTRP are consistent to the
maximum extent practicable with the enforceable policies of the states'
Coastal Management Programs provided that NMFS adopt the modifications
recommended by the Connecticut Marine Fisheries Division. The
recommended modifications included an adjustment of the proposed ALWTRP
exempted line for Long Island Sound. Without this adjustment, the
Connecticut Department of Environmental Protection indicated that the
proposed action would create an unjustified economic hardship on the
Connecticut fishing industry, as there is an absence of whale
interactions in this area. This final rule adopts the modifications
suggested by the Connecticut Marine Fisheries Division and New York
State Department of Environmental Conservation; therefore, in
accordance with 15 CFR 930.4(a)(2), the final rule was modified
pursuant to the state agency's conditions that allow the state agency
to concur with the Federal action.
The NCDCM also conditionally concurred with NMFS' determination
that the proposed action is consistent to the maximum extent
practicable with the enforceable policies of North Carolina's coastal
management program. NCDCM was concerned that the proposed action would
adversely affect the public's ability to conduct recreational and/or
commercial fishing, causing safety hazards as well as economic and
operational burdens. Thus, NCDCM offered three conditions that the
agency would have to adopt in order to be consistent with North
Carolina's coastal management program. First, NCDCM recommended that
the mid-Atlantic gillnet restriction season from December 1 through
March 31 of any year should not be expanded to the proposed period of
September 1 through May 31. Alternatively, NCDCM suggested that, if the
season is expanded, the inshore small mesh gillnet fishery (< 5 inches
(0.1 m), 300-yard (274.3 m or 900 ft) maximum set) be allowed to use
deadweight anchors on the inshore end of the net and

[[Page 57171]]

Danforth-style anchors with a minimum weight of 8 lb on the offshore
end.
Second, NCDCM required that the proposal to implement the mandatory
use of sinking and/or neutrally buoyant groundline on pots/traps be
replaced with an alternative for reducing the profile of the
groundline, such as weaving sections of lead core line in the
groundlines currently in use.
Third, in order to be found consistent with North Carolina's
coastal management program, NCDCM required that the gear marking
requirement of the ALWTRP be consistent with those already implemented
by other protected species take reduction plans and/or Regional Fishery
Management Council or NMFS FMPs for oceanic waters.
This final rule adopts an optional anchoring requirement, and also
considers gear marking requirements by other take reduction or fishery
management plans as suggested by NCDCM. However, this final rule does
not allow for a low profile groundline option. Thus, NMFS did not meet
all the state agency's conditions. Therefore, pursuant to 15 CFR 930.4,
the requirements of paragraphs (a)(1) through (3) were not met, and the
NCDCM no longer concurs with the determination that the proposed
measures are consistent to the maximum extent practicable with North
Carolina's Coastal Management Program.
This final rule contains policies with federalism implications as
that term is defined in Executive Order 13132. Accordingly, the
Assistant Secretary for Legislative and Intergovernmental Affairs at
the Department of Commerce provided notice of the DEIS and proposed
rule to the appropriate official(s) of affected state, local, and/or
tribal governments. Two letters were sent to officials in Maine, New
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New
Jersey, Pennsylvania, Maryland, Virginia, Delaware, North Carolina,
South Carolina, Georgia, and Florida, requesting a review of the DEIS
and proposed rule as the proposed amendments could have a direct impact
on the State. The purpose of these proposed amendments and their
components were outlined, and a justification for the proposed rule was
provided to each state through these letters. No concerns were raised
by the states contacted; hence, NMFS will infer that these states
concur with the finding that the proposed regulations for amending the
ALWTRP were consistent with fundamental federalism principles and
federalism policymaking criteria.
An informal consultation under the ESA for this final rule to
modify the ALWTRP was concluded on December 21, 2004. As a result of
the informal consultation, the Regional Administrator determined that
the measures to modify the ALWTRP are not likely to adversely affect
ESA-listed cetaceans, sea turtles, fish, or critical habitat that occur
within the area affected by the rulemaking. Modifications are being
made to the ALWTRP to more broadly address the incidental entanglement
of large whales in fishing gear that result in serious injury and
mortality. Some of these modifications (e.g., regulating additional
trap/pot and gillnet fisheries under the ALWTRP, requiring the broad-
based use of sinking and/or neutrally buoyant groundline) are expected
to have an effect on ESA-listed species. However, depending on the
species, all of the effects are expected to be either beneficial or
negligible.
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References

Baumgartner, M.F. and B.R. Mate. 2005. Summer and fall habitat
of North Atlantic right whales (Eubalaena glacialis) inferred from
satellite telemetry, Canadian Journal of Aquatic Science, 62: 527-
543.
Clapham, P.J. and R.M. Pace, III. 2001. Defining triggers for
temporary area closures to protect right whales from entanglements:
issues and options. Northeast Fisheries Science Center Reference
Document 01-06. April 2001.
Cole, T., D. Hartley, and M. Garron. 2006. Mortality and Serious
Injury Determinations for Baleen Whale Stocks along the Eastern
Seaboard of the United States, 2000-2004. Northeast Fisheries
Science Center Reference Document 06-04. pp. 26.
DeAlteris, J., A. Fridman, D. Williams, and J. Guimond. 2002.
Estimation of the Tractive Force of the Northern Right Whale
(Eubalaena glacialis). Revised final report submitted to the
National Marine Fisheries Service, Northeast Region Protected
Resources Division, Gear Research Team.
Johnson, A.J., G.S. Salvador, J.F. Kenney, J. Robbins, S.D.
Kraus, S.C. Landry, and P.J. Clapham. 2005. Fishing gear involved in
entanglements of right and humpback whales, Marine Mammal Science,
21(4): 635-645.
Keller, C.A., L.I. Ward-Geiger, W.B. Brooks, C.K. Slay, C.R.
Taylor, and B.J. Zoodsma. 2006. North Atlantic Right Whale
Distribution in Relation to Sea-Surface Temperature in the
Southeastern United States Calving Grounds. Marine Mammal Science,
22(2): 426-445.
Mate, B.R.; Nieukirk, S.L.; and S.D. Kraus. 1997. Satellite-
monitored movements of the northern right whale, Journal of Wildlife
Management, 61(4).
Merrick, R.L. 2005. Seasonal management areas to reduce ship
strikes of northern right whales in the Gulf of Maine. U.S.
Department of Commerce, Northeast Fisheries Science Center Reference
Document 05-19; 18 pp.
NMFS. 2002. Large Whale Gear Research Summary. Prepared by the
Gear Research Team, National Marine Fisheries Service, Northeast
Regional Office.
NMFS. 2004. Draft Environmental Impact Statement on the Proposed
Rule to Amend the Atlantic Large Whale Take Reduction Plan.
Northeast Region.
RFMRP. 2005. Marine mammal abundance survey for North Atlantic
right whales in the New York Bight and the Mid Atlantic region.
Riverhead Foundation for Marine Research and Preservation. Draft
report to the National Fish and Wildlife Foundation. 28 pp.
Waring, G.T., E. Josephson, C.P. Fairfield, and K. Maze-Foley
(eds.), U.S. Atlantic and Gulf of Mexico marine mammal stock
assessments--2005, NOAA Technical Memorandum NOAA-NE-194, 2006.

List of Subjects

50 CFR Part 229

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

50 CFR Part 635

Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.

[[Page 57180]]

50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: September 21, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 229, 635, and 648
are amended to read as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972

0
1. The authority citation for 50 CFR part 229 continues to read as
follows:

Authority: 16 U.S.C. 1361 et seq.; Sec. 229.32(f) also issued
under 16 U.S.C. 1531 et seq.

0
2. In Sec. 229.2, the definitions of ``Lobster trap'' and ``Lobster
trap trawl'' are removed. The definitions of ``Anchored gillnet'',
``Gillnet'', ``Groundline'', ``Neutrally buoyant line'', ``Sinking
line'', and ``Stowed'' are revised in alphabetical order to read as
follows below. The definitions of ``Bitter end'', ``Bottom portion of
the line'', ``Tie loops'', ``Trap/Pot'', ``Trap/pot trawl'', and ``Up
and down line'' are added in alphabetical order to read as follows:

Sec. 229.2 Definitions.

* * * * *
Anchored gillnet means any gillnet gear, including an anchored
float gillnet, 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.
* * * * *
Bitter end means the end of a line that detaches from a weak link.
Bottom portion of the line means, for buoy lines, the portion of
the line in the water column that is closest to the fishing gear.
* * * * *
Gillnet means fishing gear consisting of a wall of webbing (meshes)
or nets, designed or configured so that the webbing (meshes) or nets
are placed in the water column, usually held approximately vertically,
and are designed to capture fish by entanglement, gilling, or wedging.
The term ``gillnet'' includes gillnets of all types, including but not
limited to sink gillnets, other anchored gillnets (e.g., anchored float
gillnets, stab, and set nets), and drift gillnets. Gillnets may or may
not be attached to a vessel.
Groundline, with reference to trap/pot gear, means a line
connecting traps in a trap trawl, and, with reference to gillnet gear,
means a line connecting a gillnet or gillnet bridle to an anchor or
buoy line.
* * * * *
Neutrally buoyant line means, for both groundlines and buoy lines,
line that has a specific gravity greater than or equal to 1.030, and,
for groundlines only, does not float at any point in the water column
(See also Sinking line).
* * * * *
Sinking line means, for both groundlines and buoy lines, line that
has a specific gravity greater than or equal to 1.030, and, for
groundlines only, does not float at any point in the water column (See
also Neutrally buoyant line).
* * * * *
Stowed means traps/pots and gillnets that are unavailable for
immediate use and further, all gillnets are stored in accordance with
the following:
(1) All nets are covered with canvas or other similar material and
lashed or otherwise securely fastened to the deck, rail, or drum, and
all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and
anchors are disconnected; and
(2) Any other method of stowage authorized in writing by the
Regional Administrator and subsequently published in the Federal
Register.
* * * * *
Tie loops means the loops on a gillnet panel used to connect net
panels to the buoy line, groundline, bridle or each other.
Trap/Pot means any structure or other device, other than a net or
longline, that is placed, or designed to be placed, on the ocean bottom
and is designed for or is capable of, catching species including but
not limited to lobster, crab (red, Jonah, rock, and blue), hagfish,
finfish (black sea bass, scup, tautog, cod, haddock, po